Delhi District Court
State vs . Bijender Singh Etc. on 29 March, 2011
State Vs. Bijender Singh etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 22/2008
ID No. 02403R0102382004
State Vs. : 1. Bijender Singh
S/o Sh Laxmi Chand
R/o Village Maandi,
P.S Mehrauli, New Delhi.
2. Sukh Pal
S/o Sh Net Ram
R/o Village Maandi,
P.S Mehrauli, New Delhi.
3. Prem Singh @ Premi
S/o Sh Net Ram
R/o Village Maandi,
P.S Mehrauli, New Delhi.
4. Brahm Parkash
S/o Sh Kishan Lal
R/o Village Maandi,
P.S Mehrauli, New Delhi.
SC No. 22/08 1/32
State Vs. Bijender Singh etc.
5. Kishan Lal
S/o Sh Chanda
R/o Village Maandi,
P.S Mehrauli, New Delhi.
FIR No. 128/92
P.S. Mehrauli
U/s 308/325/34 IPC
Date of Institution : 29/01/1993
Date when arguments
were heard : 17/03/2011
Date of Judgment : 29/03/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the prosecution case is as follows:
On 21/04/92, SI R.D Sharma, PW9, with Ct Mukesh Kumar, PW13, was present in AIIMS Hospital in investigation of case FIR No. 127/92, under Sections 308/323/34 IPC, police station Mehrauli. In the course of investigation the injured of said case on SC No. 22/08 2/32 State Vs. Bijender Singh etc. enquiry told that persons of their opposite party have also received injuries but SI R.D Sharma, PW9, could not find any clue of them in AIIMS Hospital despite enquiry. So, SI R.D Sharma, PW9 with Ct Mukesh, PW13, went to Safdarjung Hospital from where it was revealed that injured Sunder was discharged and Karan Singh, Gyan Chand, Sant Kumar were admitted and declared unfit for statement by the doctor, while other injured admitted Smt Santosh was declared fit for statement. SI R.D Sharma, PW9, recorded the statement Mark A of Smt Santosh, PW6, as follows:
Smt Santosh, PW6, alleged that she was residing in Village Maandi in the area of police station Mehrauli with her family, doing her house hold work. On 20/04/92, there was marriage of Sunder, son of her brotherinlaw and that day i.e 21/04/92 the dowry articles had been brought and Gian Chand PW4, Karan Singh PW2, Sant Kumar PW1, Sunder Singh PW5 and Smt Santosh were off loading and removing those articles. Then one after other, accused Kishan Lal, Brahm Prakash, Sukhpal, Pemy and Bijender having in their hands Kulahri, iron sarias and lathis etc. came and said, "Tumne Hamare Makaan Ke Samney Subzi Kyun Daali Hai, Batatey SC No. 22/08 3/32 State Vs. Bijender Singh etc. Hai". At about 1.30 pm Sukh Pal assaulted on the head, left foot and left arm of Karan Singh by iron rod. Kishan Lal hit kulhari on head of Gian Chand. Bijender hit iron saria on the head of Sant Kumar. Pemy gave lathi blows on both hands of Sunder Singh. Brahm Prakash hit iron saria on right shoulder of Smt Santosh and thereafter Kishan Lal hit kulhari on the head of Smt Santosh but Smt Santosh held the kulhari but yet received injuries on her head. In this process the chain of Smt Santosh, Bala, Jhumki somewhere fell down. Smt Santosh alleged that Kishan Lal, Sukh Pal and Bijender have tried to kill by giving serious head injuries and Pemy and Brahm Prakash have also given injuries. Then SI R.D Sharma, PW9, made endorsement Ex PW9/F, scribed tehrir and got FIR No. 128/92 registered at police station Mehrauli for offences under Sections 308/323/34 IPC. Matter was investigated. After completion of investigation, charge sheet was filed in the court for the offences under Sections 308/325/34 IPC.
2. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
SC No. 22/08 4/32
State Vs. Bijender Singh etc. CHARGE:
3. Charge for offences under Sections 308/34 IPC and 325/34 IPC was framed against accused persons by my Ld. Predecessor to which they pleaded not guilty and claimed trial. WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 14 witnesses namely PW1 Sh Sant Kumar, PW2 Sh Karan Singh, PW3 Sh Babu Ram, PW4 Sh Gyan Chand, PW5 Sh Sunder Singh, PW6 Smt Santosh, PW7 Dr. Vandana Talwar, PW8 Dr. M.K Mittal, PW9 SI R.D Sharma, PW10 Smt Gyan Chandi, PW11 Dr. Renu Arora, PW12 HC Hoshiar Singh, PW13 Ct Mukesh Kumar and PW14 SI Ram Lal.
STATEMENTS OF ACCUSED:
5. 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 SC No. 22/08 5/32 State Vs. Bijender Singh etc. implication.
5(i) Accused Bijender, Sukh Pal, Prem Singh and Brahm Prakash alleged that the present case had been initiated as cross case by the complainant, while infact the complainant and others had thrown waste vegetables in front of their baithak and when this was objected, the complainant and others had attacked and the police was called. Also they stated that the witnesses had deposed being interested and because of personal grudges and enmity because of other disputes; when the villagers gathered and intervened to stop the attack, some injuries might have been received to the complainant and others; complainant and witnesses have also named some of the independent witnesses as attackers with malafide intention. Accused Sukh Pal, Prem Singh, Brahm Prakash and Kishan Lal stated that they were assaulted and also received injuries. All accused stated that they were innocent and falsely implicated in this case.
Accused entered upon their defence and have examined Sh Mahipal; Dr. Chetan Merchant and accused Bijender himself as DW1, DW2 and DW3.
SC No. 22/08 6/32
State Vs. Bijender Singh etc. DEFENCE EVIDENCE:
6. DW1 Sh Mahipal stated that on 21/04/92 he visited the house of Ram Lal and at about 1.30 pm heard some noise in front of house of Bijender and came to know about the dispute of some waste vegetables thrown in front of house of Bijender. DW1 stated that Gyan Chand, Babu Ram, Satwant, Karan Singh and Surender Singh had come with lathi, iron rod and kulhari in their hands and abused Bijender etc., while Sukh Pal, Prem Singh, Kishan Lal and Bijender were attacked by those persons. DW1 stated that Gyan Chand attacked Kishan Lal by kulhari on his head, which kulhari was caught hold by Kishan Lal and then Gyan Chand took iron rod from some person and hit on Sukh Pal; Karan Singh hit by iron rod on head and left arm of Bijender; Babu Ram hit by iron rod on left hand of Premi;
Satwant hit by iron rod on the head as well as hand and leg of Brahm Prakash; Satwant hit Premi by iron rod on his legs; Surender hit Bijender on his right hand by iron rod. DW1 stated that as somebody had called police, police arrived at the spot and took injured persons to the hospital. DW1 stated that Karan Singh, Gyan Chand and Satwant created disputes by illegally occupying on lands and that SC No. 22/08 7/32 State Vs. Bijender Singh etc. they had illegally occupied in the land of road (gali) and land near bus stand, Mandi Village; stating they (accused persons ) did not hear the request of the Panchayat, hence no one kept relations with them in the village.
6(ii) DW2 Dr. Chetan Merchant has proved the certified copies of MLCs of Prem Singh, Brahm Prakash, Kishan Lal, Vijender and Sukh Pal as Exts DW2/D to DW2/H respectively and certified copies of Xray reports of Sukh Pal and Premi as Exts DW2/B and DW2/C. 6(iii) DW3 is accused Bijender who entered the witness box, under Section 315 Cr.P.C. DW3 stated that complainant Karan Singh, his brother Babu Ram, Gyan Chand, Satwant @ Santa, Surender, son of Satwant @ Santa alongwith their brothers were residents of Village Mandi where they resided with their families having 20/25 quarrelsome male persons in the habit of looking after for unlawfully taking possession of Government property and land and community property. DW3 stated that at Mandi village, in between their and other 4/5 houses, there was a community crossing(Chowk), the land; on 26.07.91 at about 9.00am, Karan Singh and others tried to raise stairs SC No. 22/08 8/32 State Vs. Bijender Singh etc. at said community crossing (Chowk) to which they objected but Karan Singh and others did not listen; quarrel ensued. DW3 stated that cases under sections 107/151 Cr.P.C. against both parties were lodged; Mahipal obtained stay from civil court against Karan Singh and others; Karan Singh also tried to obtain stay from civil court but his case was dismissed; Karan Singh appealed against the dismissal order and his appeal was also dismissed and whose certified copy brought on record was Ex. DW3/A. DW3 further stated that both the parties filed the criminal complaint cases in Patiala House court which were compromised and the certified copies of the final orders of these two cases were Ex. DW3/B and Ex. DW3/C respectively wherein Karan Singh gave statement that he will not raise the staircase. DW3 stated that at main bus stand of village Mandi, Karan Singh and others had raised shop unlawfully on Government land for which the Gaon Sabha complained and the SDM got it removed; Karan Singh and others filed case against the SDM and others which was dismissed whose certified copy of the judgment was Ex. DW3/D. DW3 stated that Karan Singh and others wanted to usurp the land in front of house of DW3 at village Mandi for which uncle of DW3 obtained stay. DW3 SC No. 22/08 9/32 State Vs. Bijender Singh etc. further stated that at that place Karan Singh and others were not letting MCD and others to make it a pakka construction/road because of which Sh. Premi filed civil case and MCD only made the Chowk, the way a pakka construction and the certified copy of the order of the civil appellate court was Ex. DW3/E. DW3 has placed on record the two photographs of the place of occurrence taken from a digital camera in year 2009 as Exts. DW3/F1 and DW3/F2 depicting the gate of his residence; kacha land (public property) in Ex DW3/F1 also denoting baithak of Karan Singh and Gyan Chand etc., while the other photographs Exts. DW3/G1 and DW3/G2 were taken on 01.03.11 by DW3 showing the place after the MCD had made concrete base. DW3 stated that marriage of Sundar S/o Gyan Chand was on 20/04/92 and maximum of the baraatis had returned in the late evening of 20/04/92, while some others including bride and groom had returned in the morning at around 9.00 am on the next day i.e. 21.04.92. DW3 elaborated that waste vegetables were thrown by Karan Singh etc. in front of gate of DW3 residence at point Y in Ex. DW3/F1. DW3 further stated that DW3 and others told Gyan Chand as to why the waste vegetable had been thrown there after which Gyan Chand SC No. 22/08 10/32 State Vs. Bijender Singh etc. replied "abi batata hun" and thereafter, Gyan Chand came having kulhari in his hand, Karan Singh, Babu Ram and Satwant @ Santa came holding sariya in their hands while Surender came holding lathi in his hand; all these persons came one by one in the baithak of DW3. DW3 stated that Kishan Lal, Brahm Prakash, Premi and Sukhpal were enjoying hukka while sitting in his baithak and tried to made them understand but Gyan Chand saying that you always take their side had hit Kishan Lal on his head by kulhari, which kulhari was later on caught hold by Kishan Lal by his hand. DW3 stated that Karan Singh hit sariya on head and left arm of DW3; Satwant @ Santa hit sariya on the head, left arm and left leg of Brahm Prakash; Babu Ram had hit sariya on both hands and left leg of Premi; Satwant @ Santa hit sariya on both legs of Premi; Surender had hit lathi on right arm of DW3; Gyan Chand had taken sariya from some person and had also hit on left arm and right shoulder of Sukhpal. DW3 stated that somebody had called the police, PCR came and took them to AIIMS, where they were treated vide MLCs. DW3 further stated that cross case FIR No. 127/92 was registered at PS Mehrauli and certified copies of the charge sheet and other documents were SC No. 22/08 11/32 State Vs. Bijender Singh etc. placed here as Ex. DW3/I (colly). DW3 stated that infact Gyan Chand and Satwant @ Santa were having head injury marks even before 21.04.92 and Gyan Chand also previously had injury marks on his left wrist and medical papers of the alleged injured here were got prepared by Babu Ram falsely, who was employed in Safdarjung Hospital. DW3 stated that no injury was caused on that day which caused bleeding to Gyan Chand, Satwant @ Santa, Santosh and Karan Singh as some 20/25 persons from the village had come to intervene and separate, so some minor injuries might have been caused to some persons in the process. As per DW3, since the complainant and his family members had tried to encroach upon the public property but because of legal process they were unable to do so, they become annoyed and did not listen the advise of village people and panchayat and because of this reason villagers had stopped relations with them and even no one from the village apart from their relatives had participated in the marriage of Sundar. DW3 stated that being annoyed, Gyan Chand and others had thrown the waste vegetables and picked up quarrel and beaten DW3 and his relatives while DW3 and his relatives had no reason to pick quarrel with them. SC No. 22/08 12/32
State Vs. Bijender Singh etc. ARGUMENTS
7. 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. 7(i) Ld. Addl. PP argued that in terms of testimonies of material prosecution witnesses, the prosecution has been able to prove that the accused persons shared common intention and caused grievous injuries on the person of Karan Singh and simple injuries on the person of Gyan Chand, Sant Kumar, Sunder and Smt Santosh with intention or knowledge that by their said acts death of such injured could have been caused.
7(ii) Ld. Defence Counsel argued that there was previous pendency of litigations amongst the parties and the other party tried to gain unlawful possession of the public place with such mind set and when the accused persons came in their way, they foisted this false case against the accused, while the accused were pursuing their legal remedies lawfully; that all the injured in their statements gave own different versions of occurrence which were not only inter se SC No. 22/08 13/32 State Vs. Bijender Singh etc. contradictory but also contradictory with the case of prosecution with the material aspect of time of incident; place of occurrence; regarding presence of Babu Ram; which of the accused caused which injuries; regarding role of Babu Ram and presence of persons at spot. Ld. Defence also argued that even the injured witnesses have named Lekh Raj, Mahi Pal, Dheeraj, Ravi and Ram Niwas as to be also assailants. Ld. Defence Counsel also argued that not only the versions of the prosecution witnesses were at variance but they made considerable improvements by levelling allegations of the pelting of the stones and robbery of the articles by the accused persons. Also was stated that application under Section 319 Cr.P.C read with Section 216 Cr.P.C of complainant for summoning additional accused was dismissed vide order dated 30/01/2009 of my Ld. Predecessor.
7(iii) Upon the version of accused Kishan Lal, case FIR No. 127/92, P.S. Mehrauli was registered against PW1Sh Sant Kumar,PW2 Sh Karan Singh, PW3 Sh Babu Ram, PW4 Sh Gian Chand and others titled State vs Karan Singh & Others, which case has been simultaneously tried by this court and will also be decided SC No. 22/08 14/32 State Vs. Bijender Singh etc. 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.
8. The case of the prosecution hinges on the material though interested testimonies of injured persons PW1 Sant Kumar, PW2 Karan Singh, PW4 Gyan Chand, PW5 Sh Sunder, PW6 Smt Santosh and their relatives PW3 Sh Babu Ram and PW10 Smt Gyan Chandi. In absence of corroboration from material particulars from testimonies of any independent witness, these interested testimonies are to be scrutinized with utmost care, caution and circumspection.
9. When read as a whole, the testimonies of material interested witnesses reveal them to embodied with material SC No. 22/08 15/32 State Vs. Bijender Singh etc. contradictions, severe infirmities going to the root of the matter to check the basic version and core of the prosecution case. Prosecution witnesses have given their own versions in contradiction with each other as to who assaulted on which part of the stated injured persons.
10. MLC Ex PW8/F of PW2 Sh Karan Singh finds mention of history of assault, history of unconsciousness, history of ENT bleeding and also that patient was semi conscious having blunt injury on head and CLW on occipital region of scalp, CIW one each on upper and lower lips, injury maxilla, CIW maxilla with loss of teeth, bruise on front of abdomen, blunt injury on left forearm and left wrist with also mention of old scar mark on left wrist.
11. PW1 deposed of accused Sukh Pal having hit saria on the person of PW2 Karan Singh. PW2 says Sukh Pal hit saria on head, hands and chest of PW2 Karan Singh. PW4 says accused Sukh Pal hit saria on person of PW2 Karan Singh. PW5 says accused Sukh Pal hit saria on head, hands, leg and back of PW2 Karan Singh. PW6 says accused Sukh Pal hit saria on leg, hands and head of PW2 Karan SC No. 22/08 16/32 State Vs. Bijender Singh etc. Singh. PW10 says accused Sukh Pal had hit saria on chest, leg and hands of PW2 Karan Singh.
12. PWs 2,4,5,6 and 10 say Lekh Raj (not accused) hit ballam on the face of PW2 Karan Singh. PWs 2,4 and 10 say Mahi Pal (not accused) hit kulhari on person of PW2 Sh Karan Singh. PWs 5 and 6 say Mahi Pal (not accused) hit kulhari on the head of PW2 Sh Karan Singh. PWs 4,5,6 and 10 say Ravi (not accused) and Ram Niwas (not accused) hit lathi on the person of PW2 Sh Karan Singh.
13. In terms of MLC Ex PW11/A of PW4 Sh Gyan Chand, there is mention of history of assault being hit by iron rods, history of unconsciousness, no history of vomiting, ENT bleeding and convulsions; patient being semiconscious and the injuries described are (1) CLW 4 cm long over right parietal bone, (2) CLW 3 cm over vault of head (ragged edges), (3) CLW 2 cm just above left eyebrow (ragged edges) and (4) CLW over right forearm depraved but linear edges; which injuries have been opined as simple in nature, caused by blunt object.
SC No. 22/08 17/32
14. The prosecution witnesses say accused Kishan Lal hit kulhari on the head of PW4 Gyan Chand. PW4 Sh Gyan Chand stated Dheeraj (not accused) hit him ( PW4) with Farsa. PWs5 and 10 say Dheeraj (not accused) hit PW4 Sh Gyan Chand with Farsa on head. PW4 Sh Gyan Chand says accused Premi hit saria on person of PW4 Sh Gyan Chand. PW6 Smt Santosh says Dheeraj (not accused) pelted stones alongwith others on the person of PW4 Sh Gyan Chand. There is no mention in the MLC Ex PW11/A of any history of assault with kulhari, Farsha or stones. Injuries in the MLC of PW4 Sh Gyan Chand are not commensurate with the levelled allegations of assault or the weapons used.
15. As per MLC Ex PW7/B of PW6 Smt Santosh, there is mention of history of assault with head injury, history of loss of consciousness and the injuries described as CLW over right parietal region which injury had been opined as simple in nature, caused by blunt object.
SC No. 22/08 18/32
16. Prosecution witnesses says accused Kishan Lal hit kulhari on the head of PW6 Smt Santosh. In the course of cross examination by Ld. Addl. PP, PW1 says accused Brahm Prakash hit saria on person of PW6 Smt Santosh. PWs 2 and 4 say accused Brahm Prakash hit saria on shoulder of PW6. PW3 says accused Brahm Prakash hit saria on both shoulders of PW6. PW6 Smt Santosh herself says accused Brahm Prakash hit saria on her right shoulder. PW10 also says accused Brahm Prakash hit saria on right shoulder of PW6. The MLC does not find mention of any injury on either of shoulder of PW6 and the description and nature of injuries, aforesaid, of PW6 Smt Santosh is not commensurate with the alleged assault and alleged weapon, the axe used.
17. MLC Ex PW7/A of PW1 Sh Sant Kumar finds mention of alleged history of assault; head injuries; history of unconsciousness and patient being unconscious and the injuries described are three CLWs scalp each about one and half inches of size, which injuries have been opined as simple in nature caused by blunt object. SC No. 22/08 19/32
18. The prosecution witnesses say accused Bijender hit saria on the head of PW1 Sh Sant Kumar but none of the witnesses say that PW1 was assaulted that many times, causing three injuries and the injuries were also not commensurate with the alleged assault and the weapons used.
19. In MLC Ex PW7/C of PW5 Sh Sunder, there is mention of alleged history of assault today and the injuries described as injuries on both forearm; swelling present both arms lower half.
20. PWs 1 and 6 say accused Premi hit saria on the hands of PW5 Sunder. PWs 2,4,5 and 10 say accused Premi hit lathi on both hands of PW5 Sh Sunder.
21. It was on the basis of statement Mark A of PW6 Santosh that the investigating machinery had come into motion and the present case was got registered. When the first informant Smt Santosh, entered in the witness box as PW6, she gave all together different version from that recorded in the earlier statement Mark A. SC No. 22/08 20/32 State Vs. Bijender Singh etc. PW6 stated that on the fateful afternoon when they were off loading the dowry articles, 20/25 persons came there and attacked them. Mark A does not find mention of the assailants to be 20/25 in number. PW6 stated that those 20/25 persons including the arrayed accused and besides them, there were other persons namely Lekh Raj (not accused) who gave ballam blow on the face of Karan Singh due to which his upper and lower teeth broke and lips got cut; Mahipal (not accused) gave kulhari blow on the head of PW2 Sh Karan Singh; Ravi (not accused) gave lathi blow on the person of PW2 Sh Karan Singh; Ram Niwas (not accused) also hit PW2 Sh Karan Singh with lathi while Bishamber (not accused), Dheeraj (not accused),Sarjeet (not accused), Pappu and Jai Ram (not accused) pelted stones and bricks on them because of which even accused also got some injuries. Not only in court PW6 has named these aforesaid persons namely Lekh Raj, Mahi Pal, Ravi, Ram Niwas, Bishamber, Dheeraj, Sarjeet, Pappu and Jai Ram to be amongst the assailants but she also proceeded to make considerable improvements in her previous statement by saying her pendant, collar and jhumki of gold were also robbed by accused persons, again saying accused Sukh Pal had SC No. 22/08 21/32 State Vs. Bijender Singh etc. robbed some money and watch of her husband; accused Pemi and Kishan Lal robbed Rs 25,000/ of Gyan Chand; accused Lekh Raj robbed gold finger ring of her husband; her chunni was taken into possession by the police but she stated that the seized chunni/orni of blue colour was not the one which was belonging to her or seized. In the course of cross examination by Ld. Addl. PP, PW6 stated that police had changed her statement.
22. PW1 in the course of his statement did not whisper of the presence or any role of Ravi, Ram Niwas, Mahi Pal, Lekh Raj, Dheeraj, Sarjeet, Pappu, Bishamber and Jai Ram in the commission of the offences or even their presence at the scene of crime or they were sharing any common intention with the accused. PW1 denied of having stated to the police that accused Sukh Pal having inflicted lathi blow on PW2 Karan Singh on which count he was confronted and contradicted with his previous statement, Ex PW1/A.
23. PW2 Sh Karan Singh also did not whisper a word containing any allegations against Ravi, Ram Niwas, Dheeraj, Sarjeet, SC No. 22/08 22/32 State Vs. Bijender Singh etc. Pappu, Bishamber and Jai Ram. When PW2 was examined before my Ld. Predecessor, it was observed that he was avoiding to answer the questions directly and was adopting evasive tactics by giving indirect answers and even on 24/07/03 my Ld. Predecessor had deferred his further cross examination since he was not answering properly. Even when later PW2 was further cross examined on 15/03/2004 still PW2 feigned ignorance of Bijender, Kishan Lal, Sukh Pal and Brahm Prakash having received injuries in the occurrence. Further PW2 stated that he had not seen any injuries on the person of the aforesaid Bijender and others of his party as they straight away attacked them and he become unconscious. PW2 stated that he, his wife, Gyan Chand and Sant Kumar received bleeding injuries and blood had fallen at the spot which remained for few days thereafter. PW2 stated that when he was lifted from the spot and removed to hospital by PW3 Sh Babu Ram, he was not conscious. PW3 stated that PW2 Sh Karan Singh had sustained serious injuries on his head when he had arrived at the scene of occurrence then he had removed his family members to Safdarjung Hospital. PW3 also stated that in his presence the entire quarrel had not taken place nor the accused had assaulted SC No. 22/08 23/32 State Vs. Bijender Singh etc. the stated injured in his presence. PW3 also stated that PW2 Sh Karan Singh remained unconscious in the hospital for one week. If that was so, how could PW2 notice that the blood fallen at spot from injuries of PW2, his wife, Gyan Chand and Sant Kumar remained there for few days after the date of occurrrence.
24. PW4 Sh Gyan Chand narrated the sequence of occurrence with his own version. He stated that on the fateful afternoon while off loading the dowry articles and keeping them in their house, Karan Singh, Satwant, Santosh and Sunder were present with him and then there was some quarrel between them and Kishan Lal on issue of doorway. PW4 stated that on that accused Kishan Lal alongwith arrayed coaccused came there. Beside narrating the assault by arrayed accused, PW4 stated that Ravi (not accused) and Ram Niwas (not accused) gave lathi blow on the person of PW2 Sh Karan Singh, while Lekh Raj (not accused) gave ballam blow on the face of PW2 Sh Karan Singh and Mahi Pal (not accused) gave kulhari blow on the person of Karan Singh. PW4 stated that accused Pemi and Kishan Lal robbed his articles viz. watch, finger ring, SC No. 22/08 24/32 State Vs. Bijender Singh etc. Rs 25,000/ and some money belonging to PW2 Sh Karan Singh as well as jewellery articles viz. chain, pendant and jhumki of PW6 Smt Santosh. PW4 stated that even Dheeraj (not accused) gave farsa blow on his head.
25. PW4 elicited that police never met him at the spot and his statement was recorded at police station on 10/05/92; he remained in the hospital for more than one week; after few days of coming back at home, they had complained to police and only after that his statement was recorded and even statements of other persons were recorded. PW4 stated that prior to his statement, police had not recorded any statement of PW4 or any other injured witnesses. Since PW4 gave testimony at variance from previous statement Ex PW4/A to the police, he was confronted and contradicted with his previous, aforesaid statement on the facts of alleging in court of Lekh Raj giving ballam blow; Mahipal giving kulhari blow on the person of Karan Singh; accused Prem Singh and Kishan Pal robbed his aforesaid articles and some money belonging to Karan Singh, Dheeraj giving Farsha blow on head of PW4, Ravi and Ram Niwas SC No. 22/08 25/32 State Vs. Bijender Singh etc. giving lathi blow on the person of Karan Singh.
26. PW5 Sh Sunder in the witness box has come out with entirely different version from the presented case of prosecution and as deposed by other witnesses of prosecution. PW5 says that on the fateful afternoon they were off loading the dowry articles pursuant to his marriage the previous day. PW5 stated that he was placing the articles inside the house when he heard some noise outside and he came out from the room and saw that 20/25 persons including arrayed accused had come inside his house and who were armed with kulhari, ballam, farsha, saria and lathi. As per the version of PW5, the arrayed accused had committed house tress pass and it was inside his house that these accused persons had assaulted the stated injured. Besides PW5 also stated that Mahi Pal in his house had hit Karan Singh with kulhari on his head, Ravi and Ram Niwas hit lathi on the person of PW2 Sh Karan Singh, Shri Pal, Pappu, Bishamber, Jai Ram and Devi Sahai pelted stones and did not allow anyone to pass; Dheeraj gave farsa blow on the head of his father PW4; jewellery were robbed by Kishan Lal and Pemi accused; Rs 25,000/ of his father SC No. 22/08 26/32 State Vs. Bijender Singh etc. PW4 were robbed by Kishan Lal and accused Pemi robbed Rs 6300/ of PW2 Karan Singh and his wrist watch was robbed by accused Sukh Pal; one gold finger ring of Karan Singh was robbed by Lekh Raj; one collar, chain and jhumki of PW6 Santosh were robbed by Kishan Lal, Pemi, Sukh Pal and Brahm Prakash. PW5 had been confronted and contradicted with his previous statement Ex PW5/DA on several counts having deposed at variance from his narrated facts to police in investigation.
27. PW10 Smt Gyan Chandi also stated that the assailants were 20/25 persons and beside the arrayed accused, Lekh Raj (non accused) gave ballam blow on the face of Karan Singh due to which his teeth broke, Ravi (non accused) and Ram Niwas (non accused)also gave lathi blow on person of PW2 Karan Singh; Mahipal gave kulhari blow on the head of Karan Singh; Dheeraj (non accused) gave farsa blow on the head of PW4 Gyan Chand while Pemi robbed Rs 25,000/ of Kishan Pal; Sukh Pal robbed wrist watch and Rs 6300/ of Karan Singh; one collar, chain and jhumki of PW6 Santosh were robbed by Kishan Lal, Pemi, Sukh Pal and Brahm Prakash. PW10 was SC No. 22/08 27/32 State Vs. Bijender Singh etc. also confronted and contradicted with his previous statement Mark PW10/DA on several counts including of the fact of Lekh Raj having given ballam blow on the face of PW2 Sh Karan Singh due to which his tooth was broken; Ravi and Ram Niwas giving lathi blow to PW2 Karan Singh; allegations of robbery.
28. PW10 stated that three persons of their side namely Gyan Chand, Karan Singh and Sant Kumar became unconscious in the quarrel and other persons of their party had sustained injuries, while none of the accused persons had become unconscious.
29. The investigating officer, PW9, SI R.D Sharma, testified that it was in the course of investigation of case FIR No. 127/92, he came to know that injured of other party were admitted in Safdarjung Hospital and then he went to Safdarjung Hospital with Ct Mukesh where he found PWs 1,2,3,4,5 and 6 admitted amongst whom only Mrs. Santosh was found fit for statement and remaining injured were unfit for statement. PW9 stated that he recorded the statement of Santosh Mark A and made endorsement Ex PW9/F and sent rukka to SC No. 22/08 28/32 State Vs. Bijender Singh etc. police station through Ct Mukesh to police station for registration of FIR. PW9 stated that later he went to spot with Ct Mukesh and prepared site plan Ex PW9/G but was unable to say on whose pointing out the said site plan was prepared. PW9 stated that there was cross quarrel of Karan & Other and Bijender & Others. PW9 denied the suggestion that he had not recorded the statement of Santosh at all or that he had fabricated her statement or that he manipulated and fabricated the rukka later in the police station. In the site plan Ex PW9/G there is mention of the place at point 'C' where the vegetables were stated to be thrown.
30. Admittedly the parties were at loggerheads, litigating with each other having inter alia various civil disputes including that of the open land in front of the baithak of accused Bijender and nearside the baithak of Gyan Chand.
31. In the case of Ramesh Baburao Devaskar vs State of Maharashtra, 2008 CRI.L. J. 372 it was held that ''Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is wellknown, is a double edged SC No. 22/08 29/32 State Vs. Bijender Singh etc. weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.''
32. The material contradictions, severe infirmities in the testimonies of material interested witnesses attributing inconsistent roles of accused persons, different weapons of offences used by accused persons, naming others as assailants, exaggerating the total number of assailants, first informant, PW6 Smt Santosh denying having given statement Mark A, which formed the basis of registration of FIR, PW4 saying no person of their party having given any statement prior to 10/05/92, in totality bring into light every likelihood of introduction of the coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Even PW5 in his own version has changed the scene of crime to be inside his house alleging even accused carrying weapons with others committed house trespass.
33. If, for the sake of arguments, the version of any of the SC No. 22/08 30/32 State Vs. Bijender Singh etc. prosecution witnesses or as presented by the prosecution is believed to be true, then in the process of separation of the grain from the chaff from the testimonies of the material witnesses, elicited above, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution case completely different from the context and the background against which they are made, the only available course which can be resorted here is to discard their evidence in toto as the elicited discrepancies, material contradictions and severe infirmities have corroded the credibility of the material witnesses and henceforth the presented case of prosecution.
34. On record also is the version of defence emanating from the cross examination of the prosecution witnesses, also made vivid and clear in the testimonies of DWs 1 and 3, elicited above, making it a possible version in the backdrop of the injuries sustained on the person of accused Prem Singh, Brahm Prakash, Kishan Lal, Bijender and Sukh Pal as borne out in the certified copies of their MLCs, Ex DW2/D to Ex PW2/H respectively.
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35. In my considered opinion, the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused are accordingly held not guilty and 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
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