Delhi District Court
State vs . Karan Singh Etc. on 29 March, 2011
State Vs. Karan Singh etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 50/2008
ID No. 02403R0102452004
State Vs. : 1. Karan Singh
S/o Sh Shiv Charan
R/o Village Maandi, Mehrauli,
New Delhi.
2. Gian Chand
S/o Sh Shiv Charan
R/o Village Maandi, Mehrauli,
New Delhi.
3. Sant Kumar @ Satwant
S/o Sh Shiv Charan
R/o Village Maandi, Mehrauli,
New Delhi.
4. Babu Ram
S/o Sh Shiv Charan
R/o Village Maandi, Mehrauli,
New Delhi.
SC No. 50/08 1/27
State Vs. Karan Singh etc.
FIR No. 127/92
P.S. Mehrauli
U/s 308/323/34 IPC
Date of Institution : 29/01/1993
Date when arguments
were heard : 17/03/2011
Date of Judgment : 29/03/2011
JUDGMENT
BRIEF FACTS:
The factual matrix of the facts of the prosecution case is as follows:
Wireless information was received at 2.10 pm on 21/04/92 and recorded in DD No. 12A at police station Mehrauli that Ram Singh Pradhan had informed that "at Village Maandi, Gyan Chand, Kiran, Sukh Pal Kaa Lath Baj Raha Hai". Upon receipt of copy of aforesaid DD No. 12A, SI R.D Sharma, PW10, alongwith official motor cycle and Ct. Sanjay, PW12Ct Jalaluddin, Ct Mukesh, Ct Ram SC No. 50/08 2/27 State Vs. Karan Singh etc. Niwas went to Village Maandi but could not find any eye witness there. SI R.D Sharma, PW10, left Ct Sanjay and Ct Ram Niwas at the spot and with PW12 Ct Jalaluddin and Ct. Mukesh went to AIIMS Hospital where injured Kishan Lal, Brahm Prakash, Sukh Pal, Prem Singh and Bijender were found admitted and were declared fit for statement by the doctor. SI R.D Sharma, PW10, recorded the statement of Kishan Lal as follows:
Sh Kishan Lal stated that he was residing at Village Maandi, Mehrauli, New Delhi alongwith his family doing work of agriculture. On that day, i.e 21/04/92 Kishan Lal was sitting in the baithak of Bijender in Village Maandi and enjoying Hukka and at that time beside Bijender, Brahm Prakash, son of Sh Kishan Lal, Sukh Pal and his brother Prem Singh were present. Nearside the baithak of Bijender, there was the baithak of Gyan Chand. There was marriage in the family of Gyan Chand. Bijender asked Gyan Chand as to why they had thrown waste vegetables in front of his door, upon which Gyan Chand said " Abhi Bata Deta Hu Kyun Feka Hai". Upon that Karan Singh, his brother Gyan Chand, Satwant @ Santa, Babu Ram and Surender all having in their hands kulharis, sarias and lathis SC No. 50/08 3/27 State Vs. Karan Singh etc. came there. Kishan Lal came outside to explain to them and alongwith him Brahm Prakash, Sukh Pal, Pemy and Bijender also came. It was about 1.30 pm. Gian Chand said " Tu Inka Himayati Hai." Gyan Chand hit kulhari on the head of Kishan Lal but Kishan Lal held that kulhari. Gyan Chand snatched iron rod from some of his person and hit left arm and right shoulder of Sukh Pal. Karan Singh gave iron saria blow on head and left hand of Bijender. Satwant hit iron saria on head, left hand and left foot of Brahm Singh. Babu Ram hit iron saria on left and right hand, left thigh of Prem Singh. Satwant hit iron saria on foot of Prem Singh. Surender hit lathi on right hand of Bijender. On account of aforesaid assaults Kishan Lal and others received injuries. The occurrence was witnessed by Lekh Raj, Mahi Pal and others. Police vehicle brought injured to AIIMS Hospital. Karan Singh, Gyan Chand, Satwant, Babu Ram and Surender came one after the other and by assaulting in manner aforesaid, had tried to kill and some minor injuries were also given. Case for offences under Sections 308/323/34 IPC was registered in case FIR No. 127/92 at police station Mehrauli. After scribing of tehrir by SI R.D Sharma,PW10, case was investigated. On SC No. 50/08 4/27 State Vs. Karan Singh etc. completion of investigation, charge sheet for offences under Sections 308/323/34 IPC was filed against the accused persons.
2. Accused Surender being juvenile, his matter was filed before the Juvenile Justice Court.
3. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
CHARGE:
4. Charge for offences under Sections 308/34 IPC and 323/34 IPC was framed against accused persons by my Ld. Predecessor to which they pleaded not guilty and claimed trial. WITNESSES:
5. To connect the accused with the offences charged, the prosecution has examined in all 15 witnesses namely PW1 Sh Kishan Lal, PW2 Sh Bijender Singh, PW3 Sh Mahipal, PW4 Sh Sukh Pal, SC No. 50/08 5/27 State Vs. Karan Singh etc. PW5 Sh Prem Singh, PW6 Sh Brahm Singh, PW7 Sh Lekh Raj, PW8 Sh Phool Chand, PW9 ASI Shiv Charan, PW10 SI R.D Sharma, PW11 Dr. Sunil Chumber, PW12 Ct Jalauddin, PW13 HC Hoshiar Singh, PW14 SI Ram Lal and Sh Jai Prakash, Record Clerk, Aiims again as PW14.
STATEMENTS OF ACCUSED:
6. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
6(i) Accused Karan Singh stated that on 26/07/2001, Kishan Lal, Sukhpal, Bijender, Prem Singh, Lekh Raj, Mahipal, Ravi, Ram Niwas and their family members had broken their house and got the matter forcibly compromised. Also accused Karan Singh stated that he had filed complaint case. Accused Karan Singh stated that Kishan Lal, Sukhpal, Bijender, Prem Singh, Lekh Raj, Mahipal, Ravi, Ram Niwas and their family members had further threatened them to kill. On 25/03/92, accused Karan Singh complained to SHO for danger of SC No. 50/08 6/27 State Vs. Karan Singh etc. his life, life of his family members and property. Thereafter, the property disputes continued and he and his brother filed civil case against complainant party and got a stay order. Being annoyed, the complainant party searched for them. On 20/04/92, there was marriage of their nephew and when they were alighting the goods on 21/04/92, the complainant party assaulted them and got them implicated in this case false.
6(ii) Accused Gyan Chand stated that Kishan Lal gave him kulhari blow on his head on the top which injury mark he still had on his head. Accused Gyan Chand stated that he became unconscious, Babu Ram took him to hospital, where he remained admitted for one week and was treated there and injuries on his head were stitched; Police did not take their statements; on 10/05/92, they went to police station and gave their statements; for considerable period, he remained unwell because of the injuries, aforesaid, sustained; he sometimes becomes unwell.
6(iii) Accused Sant Kumar @ Satwant stated that on 21/04/92, his minor son Surender, student of class Xth or XIth, was kidnapped by Sukhpal, Kishan Lal, Bijender, Mahipal, Prem Singh, Lekh Raj, SC No. 50/08 7/27 State Vs. Karan Singh etc. Brahm Prakash and their family members and when they complained, these persons got Surender sent to jail and he was got enlarged on bail after one week; case of Surender was tried in Children Court and from there, he was acquitted.
6(iv) Accused Babu Ram stated that his brothers were assaulted and caused injuries by the other party i.e the complainant party. Accused Babu Ram further stated that they had come back on 21/04/92 after getting their nephew married and then the other party quarreled; he was not at the place of occurrence; he had started from his house and was in the bus to go to Khari Baoli to purchase goods for reception of his nephew which was to take place the next day; Subhash, his known person came on a two wheeler scooter and while he was in the bus Subhash informed him about the quarrel and left. Accused Babu Ram stated that he alighted from the bus and took another bus and went back to his house. When he reached his house then his brother Karan Singh was found unconscious inside the baithak, Sant Kumar was lying near Tempo, his brother Gyan Chand was lying near main gate of the house. Karan Singh, Sant Kumar and Gyan Chand were all unconscious. Sunder, his nephew, was inside SC No. 50/08 8/27 State Vs. Karan Singh etc. the house and his hands were injured. His bhabhi, Santosh was having injuries on her head on upper portion and left shoulder and was in the house. Accused Babu Ram further stated that his wife, Dhauli Rani also sustained injury on legs but they could not get her medically examined. Accused Babu Ram stated that his minor son Ashish, 3 /4 years old then, also had sustained injuries and they could not get him medically examined; his nephew, Balkishan, also had received injury on the hand and they could not get him medically examined. When accused Babu Ram had reached at the place of occurrence then Kishan Lal, his sons, Brahm Prakash, Rajbir, Bishambar, Prem Singh, Vijender, Sukhpal and their family members were standing there. Kulhari was in the hand of Kishan Lal. Accused Babu Ram raised noise, "police aa gayi, police aa gayi" and then these persons ran away. Accused Babu Ram took his brothers to hospital whose condition was very bad, so he could not take care of his injured wife and injured son; his name had wrongly been given by Prem Singh. Accused Babu Ram stated that had he been present at the spot then if he would have been involved in the quarrel, then he would have also received injuries as his other SC No. 50/08 9/27 State Vs. Karan Singh etc. brothers had received injuries.
DEFENCE EVIDENCE:
7. Accused entered upon their defence and examined three witnesses namely DW1 Sh Virender Chaudhary, DW2 Ct Mukesh Kumar and DW3 Sh Subhash.
7(i) DW1 Sh Virender Choudhary testified that accused Gian Chand was friend of his father and he had gone to marriage of Sunder, son of Sh Gyan Chand on 20/04/92. DW1 deposed that on 21/04/92 at 1.30 pm in front of the baithak of Sh Gyan Chand at Village Mandi a tempo was stationary and goods were off loaded from that tempo when seven/eight persons came there having in their hands kulhari, saria rod, danda, farsa and assaulted Gyan Chand. DW1 stated that these persons entered in house of Gyan Chand, gave beatings to his wife and other ladies. DW1 stated that being of age 13/14 years then he had ran and climbed on the roof of the house of neighbour and seen Gian Chand had fell down, his clothes were searched by the persons who assaulted him; brother of Gyan Chand came there, called for a car and took him to Safdarjung Hospital SC No. 50/08 10/27 State Vs. Karan Singh etc. accompanied by father of DW1.
7(ii) DW2 Ct. Mukesh Kumar merely stated of the destruction of old records of Complaint Branch, South District Police, of the year 2005 and 2006. 7(iii) DW3 Sh Subhash testified of accused Karan Singh
being his maternal uncle in relation. DW3 stated that on 21/04/92 at around 1.30 pm the goods of marriage of son of Gyan Chand came, which were being off loaded by accused Karan Singh, Gyan Chand, Sant Kumar and Santosh from tempo and in the process of being kept in the house of Gyan Chand; then Kishan Lal, Brahm Prakash, Sukhpal, Pemi, Vijender, Lekhraj, Mahipal, Ravi and Ram Niwas having in their hands kulhari, saria, lathi, farsa, ballam came and suddenly attacked the family of Gyan Chand and attempted to kill them, also committed robbery of jewellery and cash in which process Karan Singh, Sant Kumar and Gyan Chand became unconscious at the spot, ladies and children also received injuries while Kishan Lal hit kulhari on the head of Santosh and Gyan Chand. DW3 stated that Babu Ram was going to Khari Bawli to purchase household goods namely ghee, butter, khoya, paneer etc. by bus. DW3 stated that he SC No. 50/08 11/27 State Vs. Karan Singh etc. went on scooter and at Sultapur bus stand told Babu Ram of the quarrel, Babu Ram came back on another bus and DW3 went to his home.
ARGUMENTS
8. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. 8(i) Ld. Addl. PP argued that the material prosecution witnesses by their testimonies had proved that the accused persons in furtherance of their common intention had caused injuries on the vital part i.e the head of Kishan Lal and Bijender with intention/knowledge that by their such act, they could cause their death and also had caused hurt voluntarily to Satpal, Prem and Brahm Prakash whose injuries have been described in their MLCs and the prosecution has proved its case against the accused, beyond reasonable doubt. 8(ii) Ld. Defence Counsel argued that the accused have been falsely implicated; parties were having animosity and the party of Kishan Lal and Bijender were the aggressor party; even circumstances SC No. 50/08 12/27 State Vs. Karan Singh etc. on record do not lead to any inference of accused having any intention to commit culpable homicide. Also was argued that if the case of the witnesses, as deposed, is taken as gospel truth then if the alleged victims are assaulted in the manner, alleged, with the weapons alleged viz. kulhari, lathi and saria, while the victims were bare handed, then the likely injuries sustained by the victims would have been serious in nature and not like of what are borne out of the MLCs on record as the MLCs of the stated injured do not in any manner suggested that injured were subjected to severe beatings; if PW1 was assaulted by a kulhari and accused had the intention or knowledge of such act causing death of PW1, then the outcome of the kulhari blow would not be a simple injury by blunt object as is mentioned in the MLC of PW1. It was also argued that the accused persons were in the process of off loading the goods of marriage from tempo to the house of Gyan Chand after the marriage of son of Gyan Chand and were attacked by the party comprising of Kishan Lal, Bijender and others who were the aggressor party but instead the accused have been falsely implicated in this case. It was also argued that even the juvenile Surender has been acquitted by the competent SC No. 50/08 13/27 State Vs. Karan Singh etc. forum and in the backdrop of previous litigation amongst the parties due to the tendency of members of the alleged injured party, accused have been roped in and false accusation have been levelled to settle scores. It was also argued that the prosecution has failed to prove its case against the accused, beyond reasonable doubt and accused deserve acquittal.
8(iii) Upon the version of Smt Santosh, case FIR No. 128/92, P.S. Mehrauli was registered against PW2 Sh Bijender Singh, PW4 Sh Sukh Pal, PW5 Sh Prem Singh @ Premi, PW6 Sh Brahm Prakash and PW1 Sh Kishan Lal, titled State vs Bijender Singh & Others, which case has been simultaneously tried by this court and will also be decided simultaneously with this case at hand. The versions of the aggrieved/prosecution in both cases are different, having entirely different set of witnesses, about different sequence of occurrence and these cases have been tried separately. Evidence needs to be appreciated separately in these two cases, in terms of law laid in (1) Nathi Lal & Ors Vs. State of UP, 1990 SCC(Cri) 638; (2) Kewal Krishan Vs. Suraj Bhan & Anr, 1980 (Supp) SCC 499 and (3) Pal @ Palla Vs. State of UP, 2010 V AD (Cri) (SC) 53.
SC No. 50/08 14/27
9. In the course of the trial, certified copies of Plaint, Ex PW6/D1, of Civil Suit No. 90/92, titled Karan Singh and Another vs. Lekh Raj and Others as well as its judgment, Ex PW6/D2 and Interim Order dated 27/03/92, have been placed on record. As per the plaint, the suit was filed on date 26/03/92 and the arrayed defendants included PW7 Sh Lekh Raj, PW3 Sh Mahi Pal, PW2 Sh Bijender, PW4 Sh Sukh Pal, PW6 Sh Brahm Prakash. As per order dated 27/03/92, Civil Court had directed both the parties to maintain the status quo regarding the suit property, the common street in question, as it existed then. PW6 admitted that litigation was pending since long between the parties viz. the accused party on one side and the injured and witnesses PWs3 and 7 on the other side. Parties were admittedly at loggerheads and there had been pendency of various litigations inter se them.
10. PW10, the investigating officer, testified that at AIIMS Hospital he had recorded the statement Ex PW1/A of PW1 Sh Kishan Lal overleaf which he made endorsement and sent tehrir and got FIR SC No. 50/08 15/27 State Vs. Karan Singh etc. registered.
11. The first informant, PW1 Sh Kishan Lal, testified at complete variance and in material contradiction with his previous statement, Ex PW1/A with which he was confronted with on several counts. At the fag end of his statement, PW1 even stated that he did not made any such statement. PW1 testified that on the fateful afternoon when accused Gyan Chand, Karan Singh and their sons had thrown waste vegetables in front of the house of PW5 Sh Prem Singh, on that issue quarrel took place between accused Gyan Chand and PW5 Sh Prem Singh; then accused Gyan Chand had hit kulhari on his head. PW1 further stated that the other accused were also involved in the case and named accused Karan Singh also. PW1 stated that Sukh Pal, Prem Singh, Bijender, Brahm Prakash also received injuries. PW1 elaborated that the accused persons hit the injured and some of them had lathies and some of them had saria in their hands. PW1 stated that after he was hit by the kulhari, he became unconscious and gained consciousness on the next day in the hospital and he did not knew as to who got his statement Ex PW1/A recorded. SC No. 50/08 16/27
State Vs. Karan Singh etc. PW1 stated that he was not able to identify the kulhari, the weapon of offence, which was hit on his head. In his previous statement Ex PW1/A, there is mention that when Gyan Chand had given blow by kulhari towards his head, PW1 had held the kulhari, meaning thereby it had not struck the head of PW1. PW1 also denied that Gyan Chand took iron rod from somebody and hit on the left and right shoulder, left hand of Sukhpal. PW1 was unable to say whether he had stated of Karan Singh having saria in his hand hit Vijender on his left hand or head or that Satwant hit with iron saria on head, left hand and left leg of Brahm Prakash. PW1 denied of having told the police that Babu Ram had hit on the right and left hand, left thigh of Prem Singh with saria or Satwant having hit saria on the leg or that juvenile Surender hit lathi on right hand of Bijender. PW1 denied of having stated to police that PW7 Lekh Raj and PW3 Mahipal were witnesses of the incident or that they were removed to AIIMS hospital by police. For aforesaid facts PW1 was confronted and contradicted with his previous statement, Ex PW1/A.
12. PW2 Sh Bijender Singh testified of sitting in his baithak SC No. 50/08 17/27 State Vs. Karan Singh etc. with PW1 Kishan Lal, PW6 Brahm Prakash, PW4 Sukh Pal and PW5 Prem Singh, consuming hukka. Nearside baithak of Bijender Singh was the baithak of accused Karan Singh. PW2 stated that accused Karan Singh and his family members had thrown waste vegetables of marriage in front of door of his baithak. On asking of PW2 to accused Gyan Chand about the throwing of the waste vegetables, accused Gyan Chand said, " Abhi Bata Deta Hun". It is the version of PW2 that thereafter accused Gyan Chand went towards his house and it was thereafter that all his other brothers i.e Karan Singh, Santa @ Satwant, Babu Ram and juvenile Surender armed with kulhari, saria and lathi came, abused in front of gate of baithak of PW2. Then Kishan Lal, PW1, came to them to pacify them and PW1 also came to talk to them. Aforesaid version is at variance from the presented case of prosecution. It is not the case of the prosecution that once PW2 asked Gyan Chand as to why he had thrown waste vegetables in front of his door, then upon hearing the same Gyan Chand had retreated or gone to his house and later arrived at the scene of crime with his coaccused. Presented case of prosecution is after PW2 Bijender Singh had asked Gyan Chand as to why they had thrown waste SC No. 50/08 18/27 State Vs. Karan Singh etc. vegetables in front of their door, Gyan Chand had stated " Abhi Bata Deta Hu Kyun Feka Hai" and it was at that moment of time the other arrayed coaccused Karan Singh, Satwant, Babu Ram and juvenile Surender had come armed. Also is the presented case of prosecution that PW1 Kishan Lal had come outside to explain to PW2 Sh Bijender and others and alongwith PW1 Sh Kishan Lal, Brahm Prakash PW6, Sh Sukh Pal PW4, Pemmy @ Prem Singh PW5 and Bijender PW2 had also come. No where it is the case of the prosecution that accused had hurled abuses before assaulting any of the injured. Even PW2 stated that he could not identify the kulhari, the used weapon of the offence. Even PW2 stated that the kulhari blow given by accused Gyan Chand hit Kishan Lal on his head. PW2 did not say that the kulhari blow was stopped by PW1 by his hand, as was the presented case of prosecution. It was only in the course of cross examination of Ld. Addl. PP that PW2 parrotlike admitted that he had stated in his statement that Kishan Lal had caught the kulhari by which accused Gyan Chand had caused injuries to him. PW2 further added that PW1 had caught the kulhari after the impact and not before it struck the head of PW1.
SC No. 50/08 19/27
13. PW6 Sh Brahm Parkash also testified at variance from the presented case of prosecution and even was cross examined by Ld. Addl. PP. PW6 deposed that he had not stated to the police that accused Gyan Chand with iron rod gave blow to Sukh Pal on his left hand and right shoulder. PW6 was unable to say whether he had stated in his previous statement Ex PW6/A that Karan Singh had given saria blow on left hand of Bijender. PW6 was also unable to say whether he had stated to police whether juvenile Surender hit with lathi or that Satwant had also given him blow on his left leg or Satwant had given saria blow to Prem Singh on his left leg. PW6 was confronted and contradicted with his previous statement Ex PW6/A, in the course of cross examination by Ld. Addl. PP.
14. PW3 Sh Mahipal, PW4 Sh Sukhpal, PW5 Sh Prem Sigh and PW7 Sh Lekh Raj also appeared as the prosecution witnesses and narrated on the lines of PW2.
15. The investigating machinery had come into motion on SC No. 50/08 20/27 State Vs. Karan Singh etc. recording of statement Ex PW1/A of PW1 Sh Kishan Lal. Here PW1 Sh Kishan Lal deposed of having become unconscious at the scene of crime and having gained consciousness on the next day and feigned ignorance of giving of such statement, Ex PW1/A alleging he had not given such statement. PW1 at the outset had also stated that he as well as PW5 Prem Singh were sitting in the baithak of PW1 and not in the baithak of PW2 Sh Bijender Singh. PW1 even denied of having given any signature or thumb impression on the statement to the police.
16. Admittedly there was bad blood between two groups, one group of Bijender Singh & Others and the group of Karan Singh & Others. The first informant PW1 somersaulted and all together denied of having being instrumental in bringing the investigating machinery into motion by giving statement Ex PW1/A. The testimony of first informant/ complainant in such like cases of assaults is of great important as the first information report in a criminal case, is a vital and valuable piece of evidence which is used for the purposes of corroborating the oral evidence adduced at trial. The SC No. 50/08 21/27 State Vs. Karan Singh etc. lodged complaint has not been proved. By testimony of PW1, it has been brought to light that lodging of the first information report as a possible creature of after thought or introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation cannot be ruled out. If Ex PW1/A was not containing the version of PW1, then it remains not at all satisfactorily explained, as to whose version it was.
17. MLC Ex PW8/B of PW5 Prem Singh embodies description of injuries as (1) laceration 1 cm; (2) swelling right forearm, left thigh and (3) abrasion right gluteal region which injuries have been opined as simple in nature, caused by blunt object. Also is mentioned as a fact that patient was allegedly beaten by someone.
18. MLC Ex PW8/C of PW6 Brahm Prakash finds mention of the injuries as (1) CLW mid frontal scalp; (2) abrasion on right scapular region, left forearm, which injuries have been opined as simple in nature, caused by blunt object. Also is mentioned as a fact that the patient being beaten by another party. SC No. 50/08 22/27
19. MLC Ex PW11/A of PW1 Kishan Lal finds mention of CLW over scalp, injury opined as simple in nature, caused by blunt object. Also is mentioned that the patient was allegedly involved in a fight today. Neither there is mention of any history of unconsciousness nor any advice of admission. PW11, who examined PW1, stated in his cross examination that since size of CLW over scalp was not mentioned in the MLC, it was not case of bigger injury nor was it a case of sharp injury.
20. In MLC Ex PW8/C1 of PW2 Sh Bijender, the injuries mentioned are CLW mid frontal scalp, left elbow which injuries have been opined as simple in nature, caused by blunt object. Also is mentioned of the fact that the patient being beaten by another party.
21. In MLC Ex PW8/A of PW4 Sukh Pal, the injuries mentioned are (1) Laceration left arm; (2) abrasion left arm, right shoulder, left forearm, which injuries have been opined as simple in nature, caused by blunt object. Also is mentioned to the fact that the patient being beaten by some people (c lathis and axe). SC No. 50/08 23/27
22. PW5 admitted that 30/35 people of the village had gathered at the spot at the time of occurrence. None amongst those villagers, the independent witnesses, have been joined in the investigation or examined in the court as prosecution witness.
23. If the case of prosecution, as presented, is taken as gospel truth, then if by use of weapons viz. kulhari, lathi and saria by the arrayed four accused alongwith juvenile assailant give blows with great force on the person of unarmed victims, then in every likelihood, the victims may have suffered grave and serious injuries on the vital parts of their bodies. Per contra, elicited injuries in MLCs, described herein before, reveals of only simple injuries caused by blunt object. Had the kulhari been used with great force and blow would have been given by sharp side, resultant would have been a sharp and deep injury, which is not so in the present case.
24. Version contrary to prosecution case in form of testimonies of DW1 and DW3 is also on record presenting the SC No. 50/08 24/27 State Vs. Karan Singh etc. defence version of the accused of instead they being victims and PWs1,2,3,4,5,6 and 7 being aggressor and instead having caused injuries to accused Gyan Chand, Karan Singh, Sant Kumar and family members of Gyan Chand.
25. Neither any blood stained earth was lifted from the spot by IO nor any finger impressions were lifted from the kulhari seized.
26. PW10 SI R.D Sharma, the investigating officer, in the course of his examination admitted that on the fateful day when he had visited Safdarjung Hospital after visiting AIIMS Hospital, he had found accused Karan Singh, Gyan Chand and Sant Kumar admitted there who were declared unfit to make statement. PW10 also stated that he had recorded the statement of Santosh in the hospital on the basis of which cross case FIR No. 128/92 was registered.
27. How the accused persons namely Karan Singh, Gyan Chand and Sant Kumar sustained injuries which made them unfit for statement even, remains unexplained in the testimonies of examined SC No. 50/08 25/27 State Vs. Karan Singh etc. material witnesses and of investigating officer. Even charge sheet is silent on this count.
28. Resiling of PW1 on the fact of giving of statement Ex PW1/A forming basis of registration of the case, elicited discrepancies and contradictions emanating from the testimonies of material witnesses, unexplained injuries caused on the person of three accused persons making them even unfit for statement have corroded the credibility of the material witnesses in the backdrop of the preexisting enmity between the two factions viz. the complainant faction and the accused faction. There is all probability of the existence of tendency to rope in members of opponents so as to wreck vengeance in the fact of parties being at loggerheads. Fact of existence of simple injuries, opined to be caused by blunt object on person of injured, negates the existence of probabilities of assault with force with weapons like axe, lathis and sarias on vital parts of the body; on record being the defence version in form of testimonies of DWs 1 and 3, elicited above, corroborated by the injuries on the person of accused Karan Singh, Gyan Chand and Sant Kumar, the total SC No. 50/08 26/27 State Vs. Karan Singh etc. effect of entire material on record introduces possibility of false implication of the accused by the members of the opposite faction to save their own skin. The testimonies of interested witnesses does not find any support or corroboration from ocular version of independent witnesses from the villagers, admittedly present at the place of occurrence.
29. In my considered opinion, the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused deserve the benefit of doubt. Accused are accordingly acquitted for the offences charged. Their bail bonds are cancelled and sureties are discharged. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 29/03/2011 ASJ (FTC)/SD/ NEW DELHI
SC No. 50/08 27/27