Delhi District Court
State vs ) Sansbir on 26 October, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 26/1
Unique Identification No. 02404R0045002006
State
Versus
1) Sansbir
S/o Sh. Ram Phal
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana.
2) Ummed
S/o Sh. Puran
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
3) Ram Phal
S/o Sh. Nand Roop
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
4) Balwan Singh
S/o Sh. Ram Kishan
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
5) Babloo
S/o Sh. Hari Ram
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
SC No. 26/1 1/15
6) Ram Chander
S/o Sh. Godha Ram
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
7) Jashbir @ Ashbir
S/o Sh. Hari Ram
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
8) Anand
S/o Sh. Hari Ram
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
9) Jagdish
S/o Sh. Hari Ram
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
10) Hari Ram
S/o Sh. Nand Roop
R/o VillageSaboli,
PSKundli, DistrictSonepat,
Haryana
FIR No. 481/2002
PS -Narela
U/s. 147/148/149/323/325/308/436 IPC
Date of institution of the case: 12/05/2004
Arguments heard on: 25/10/2013
Date of reservation of order: 25/10/2013
Date of Decision: 26/10/2013
SC No. 26/1 2/15
JUDGMENT
1. This case was registered on the statement of one Devender u/s. 147/148/149/323/308/436 of IPC on 10/11/2002. Prior to that, DD No. 11A was recorded at PS Narela on 10/11/2002 at 2.52 p.m. day regarding quarrel in fields, near ITBP camp and that some officer be sent. The contents of this DD were informed to SI Jaipal Singh for taking necessary action and its copy was given to constable Ranbir Singh, who left for the spot.
2. Another DD No. 13A dated 10/11/2002 was also recorded at about 3.55 p.m. day on receipt of information from Dr. Omkar Nath Thakur of P.K. Gupta Nursing Home, Narela, Delhi, that two persons namely Umed Singh and Satbir Singh of Saboli Road had been admitted in their nursing home and that some officer be sent. This information was conveyed to SI Jaipal Singh and Ct Bal Kishan was sent to spot with the copy of DD.
3. During investigation, rough site plan of the place of occurrence was prepared. One burnt piece of pipe and one burnt piece of sack/bori were lifted from the spot and were seized by preparing a memo. MLCs of injured Guru Dutt, Devender, Singh Ram, Satender, Sunita and Dhyan Singh were collected. Photographs of the place of occurrence were taken. MLCs of injured were sent to Lok Nayak Hospital for obtaining result. Injuries sustained by injured Guru Dutt and Singh Ram were found to be grievous in nature. Accordingly, section 325 of IPC was added.
4. Accused Sansbir, Umed Singh, Ram Phal, Balwan Singh, Bablu, Ram Chander, Jasbir @ Asbir, Anand, Jagdish and Hari Ram were arrested in this case. Their personal searches were conducted. They also made disclosure statements and pointed out the place of occurrence.
5. On completion of investigation, chargesheet was filed against all the ten accused persons U/s. 147/148/149/323/325/308/436 of IPC. Case was committed to the Court of Session on 12/04/2005 and was received on 26/04/2005. On SC No. 26/1 3/15 01/09/2007, charge U/s. 147 read with Section 149 of IPC, u/s. 148 read with section 149 of IPC, u/s. 323/325 of IPC read with Section 149 of IPC, u/s. 308 read with Section 149 of IPC and u/s. 436 read with Section 149 of IPC was framed against all the ten accused persons, to which, they pleaded not guilty and claimed trial. 6 To prove its case, prosecution has examined PW1 to PW15 in all. On completion of evidence of the prosecution, prosecution evidence was closed.
7. Statements of accused persons were recorded u/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have claimed that they are innocent and have been falsely implicated in this case.
8. I have heard learned APP for the State, learned defence counsel for the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offences u/s. 147 read with Section 149 IPC, u/s. 148 read with Section 149 of IPC, u/s. 323/325 read with Section 149 of IPC, u/s. 308 read with Section 149 of IPC and u/s. 436 read with Section 149 of IPC:
9. According to DD No.11A, information was received about a quarrel in the fields near ITBP Camp. The case was registered on the statement of one Devender recorded on 10/11/2002, who told to the IO that on that day, he alongwith his brother Satender, Dhyan Singh, sister in law Sunita, father Guru Dutt, mother Basanti and Tau Singh Ram was present in the fields and was watering in the fields with the help of tubewell. At about 2.15 p.m. day, Hari Ram, Ram Phal, Umed, Anand, Jagdish, Balwan, Ram Chander, Babloo, Asbir and Sansbir came there, while armed with lathi, jelly and kassi, with intent to kill them. His brothers Dhyan Singh, Satender, his Tau Singh Ram, his father Guru Dutt and his mother Basanti sustained injuries. His father informed the police. The said persons also put the plastic pipe and door of the tubewell room on fire.
10. According to MLCs of Guru Dutt, Devender, Singh Ram, Satender and Sunita were taken to LNJP hospital by PCR/CATs ambulance at about 4.25 p.m. SC No. 26/1 4/15 They were fit for statement as per opinion of the doctor at about 6.45 p.m.
11. Basanti and Dhyan Singh were taken to BJRM hospital by HC Ishwar Singh of PCR. Both these injured were also fit for statement.
12. According to the documents placed on record, statements of Basanti and Guru Dutt were recorded on 10/11/2002 Ex. PW9/DA and Ex. PW11/DA.
13. Before the Court, Devender has been examined as PW2. He has stated that on 10/11/2002, at about 2.15 p.m., while he was working in his fields alongwith his brothers Satender and Dhyan Singh, his parents Guru Dutt and Basanti, his tau Singh Ram and wife of his brother namely Sunita, meanwhile, accused Sansbir, Ram Phal, Hari Ram, Anand, Jagdish, Babloo, Asbir, Ram Chander, Umed and Balwan came there in a pre planned manner, having jelly, lathis, kassis and attacked him and his family members in order to kill them. His father informed the police on 100 number. Accused persons also put on fire the room of their tubewell, due to which, door of the room besides some plastic agricultural tools got burnt. Thereafter, accused persons ran away from there. All the injured were removed to hospital in CATs ambulance. His statement was recorded Ex. PW2/A.
14. In the cross examination, PW2 has stated that in the quarrel, accused persons had also sustained injuries. They did not cause any injury to Sansbir, Umed and Nirmala, but they sustained injuries at their own with their weapons, while they had attacked on them.
15. Learned defence counsel has contended that this witness has himself contradicted with his examination in chief as in the examination in chief, he has nowhere stated that Nirmala also came there with accused persons in a preplanned manner to attack them. So, there could not be any possibility of sustaining injury by Nirmala at her own with her weapon, when they had attacked on PW2 Devender and other injured persons.
16. PW2 Devender has further stated in the cross examination that thereafter, his father, his Tau, Satender and Sunita were taken to Trauma Centre in CATs SC No. 26/1 5/15 ambulance and later on, he came to know that remaining injured persons were taken to BJRM hospital.
17. Learned defence counsel has further contended that there is no MLC of these persons of Trauma Centre, rather there are MLCs of LNJP hospital and of BJRM hospital. So, it is doubtful whether the injured persons were taken to Trauma Centre.
18. PW2 Devender has further stated in the cross examination that about 50 labourers were residing at a distance of 350 meters from the tubewell. They did not raise any hue and cry, when they were attacked by the accused persons, so, they did not call for any help, whereas other witnesses have stated that they raised hue and cry, but no one reached there. It is further contended that there were 10 accused persons, who had attacked the complainant party and in the cross case, complainant party had also alleged that they sustained injuries at the hands of these accused persons, so, in view of such a big fight of 1520 persons, it seems to be improbable that no one had raised any hue and cry and no one reached at the spot to see or to help any of the party.
19. Learned defence counsel has further contended that PW2 Devender has deposed falsely regarding the fact that they were not having any enmity with the accused persons, whereas in the further cross examination, he has admitted that both the parties were booked u/s. 107/151 of Cr.P.C. and were having enmity with each other over the land in question, so, PW2 cannot be relied upon.
20. In the cross examination, PW2 Devender has stated that on 10/11/2002, at about 12 or 1.00, both the parties exchange hot words with each other over the land in question and at that time, both the parties left the spot and at about 2.15 p.m., some unknown persons, armed with lathi, danda and kassi, came and started beating them, who were not known to them. Accused persons had not caused injuries to them. PW2 was reexamined by ld. APP, but even then, he has not supported the case of the prosecution about the identity of the accused persons as the same, who had caused SC No. 26/1 6/15 injuries to them.
21. PW3 Dhyan Singh has also deposed the same facts as of PW2 Devender. He has stated that blood started oozing from his head, but no blood stained clothes have been taken into possession of this injured nor any blood was lifted from the spot.
22. PW3 Dhyan Singh has not supported the case of the prosecution, so, he has been cross examined by Ld. APP, wherein he has not supported the case of the prosecution to the extent that accused Sansbir had attacked him as well as his mother Basanti; that accused Umed Singh had attacked his Tau Singh Ram with jelly and caused injuries to him, that accused Hari Ram had attacked his father with lathi and broken his left hand. PW3 has also not been able to give specific role of any of the accused persons as he had sustained injuries on his head.
23. PW3 Dhyan Singh, in the cross examination, has again not supported the case of the prosecution regarding identity of the accused persons as the same, who had caused injuries to them and despite reexamination, he has not supported the case of the prosecution about identity of the accused persons as the same.
24. PW3 has also stated in the cross examination that police never met him either on the day of incident or at any time till date. He could not remember the fact for 34 days and later on, police did not make any inquiry from him, hence, he cannot say whether his statement was recorded by the police or not. PW3 has also stated in the cross examination that before appearing in the court, he was briefed by his counsel about his statement, which shows that he is a tutored witness. It is also doubtful whether his statement was recorded by the police actually or by the IO at his own.
25. PW3 has further stated in the cross examination that Devender, his real brother, was present at the time of incident in the agricultural field and his family members reached after the incident. His sisters in law Sudesh, Renu and Kavita reached later on after the incident.
SC No. 26/1 7/15
26. Learned defence counsel has further contended that if the family members reached in the fields after the incident, then there could be only two injured persons Dhyan Singh and Devender, but there are other injured persons also as per the depositions of both these witnesses, so, it is not known at whose hands, they sustained injuries because both PW2 Devender and PW3 Dhyan Singh have stated that after causing injuries, the assailants had run away from the spot. It is further contended that witnesses have admitted that they were having enmity with the accused persons, so, possibility cannot be ruled out of false implication of accused persons in this case.
27. PW11 Guru Dutt has also deposed the same facts as of PW2 Devender and PW3 Dhyan Singh regarding involvement of the accused persons in causing injuries to them. He has identified the accused persons before the Court. He has stated that police took him, Devender, Satender, Singh Ram and Sunita to Trauma Centre near ISBT and Basanti and Dhyan Singh were taken to BJRM hospital. After about 3 days, he was discharged from Trauma Centre. He has identified the burnt articles as Ex. P1 and Ex. P2 and photographs of burnt articles as mark X1 and X2.
28. Learned defence counsel has contended that in the cross examination, PW11 has stated that his statement was recorded twice by the police, once at his house and second time in the PS, but it is not explained as to why his statement was recorded second time. This witness has also stated in the cross examination that police had not recorded statement of any other person in his presence, which shows that statements of other injured persons have been recorded by the police at their own, which is quite evident from the cross examination of PW3 Dhyan Singh, who has stated before the Court that police never contacted him till date. It is further contended that according to cross of PW11 Guru Dutt, they had raise noise, when accused persons had attacked on them and had raised hue and cry on the top of their voice, whereas pW2 Devender has stated that they did not raise any hue and cry at the time of incident. It is further contended that according to cross of PW11 Guru SC No. 26/1 8/15 Dutt, blood had fallen on the ground, but IO had not taken any blood stained earth from the spot.
29. Again, in the cross examination, PW11 Guru Dutt has deposed the same facts as of PW2 Devender and PW3 Dhyan Singh regarding the identity of the accused persons as the same, who had caused injuries to them.
30. PW13 Satender Kumar has also deposed the same facts as of other witnesses regarding the fact that accused persons had caused injuries to them and also put on fire certain agricultural tools. He has also identified the burnt articles before the Court as Ex. P1 and Ex. P2 and has identified the accused persons, whereas in the cross examination, he has stated that both the parties were having enmity with each other and were booked u/s. 107/151 Cr.P.C. and has denied about the identity of the accused persons as the same, who had caused injuries to them. Even in the reexamination, he has not supported the case of the prosecution.
31. PW14 Sunita has also deposed the same facts as of other witnesses and has taken a somersault in the cross examination about the identity of the accused persons as the same, who had caused injuries to them and even has not supported the case of the prosecution in the reexamination conducted by ld. APP.
32. According to PW15 Inspector Jaipal Singh, on 10/11/2002, on receipt of copy of DD No.11 A, he alongwith constable Ranbir Singh and Constable Chander Shekhar reached at the spot. Meanwhile, PCR van alongwith CATs ambulance also came there and they took injured persons to Trauma Centre. No eye witness besides the injured persons was present at the spot. Constable Ranbir Singh was left at the spot. He alongwith Ct Chander Shekhar reached at Trauma Centre and collected MLCs of injured persons and thereafter, he reached at BJRM hospital, where he collected MLCs of injured Dhyan Singh and Basanti. Meanwhile, constable Bal Kishan came there and handed over copy of DD No. 13A. He came to know that two injured persons Umed Singh and Sansbir were admitted and were discharged, so, he reached at P.K. Nursing Home, Narela and collected MLCs of Umed Singh and SC No. 26/1 9/15 Sansbir. Thereafter, he prepared rukka on the statement of Devender Kumar and got registered the case. After sometime, Constable Chander Shekhar came back from the PS and handed over to him copy of FIR and rukka. Statement of Devender Kumar is Ex. PW2/A and rukka is Ex. PW15/A. He also got the scene of occurrence photographed. One burnt piece of plastic pipe and one burnt piece of jute bag was lifted from the side of tubewell room and prepared pullanda of the same with the seal of "JP" and seized the same vide memo Ex. PW9/A.
33. PW15 has further stated that thereafter, they reached at BJRM hospital, where he recorded statements of injured Dhyan Singh and Basanti u/s. 161 of Cr.P.C. Thereafter, he reached at Trauma Centre and recorded statements of Guru Dutt, Singh Ram, Satender and Sunita. Thereafter, he came back to PS and deposited the case property in the malkhana. Statement of Ct Chander Shekhar and Constable Ranbir Singh were recorded. On 11/11/2012, he prepared rough site plan at the instance of Devender Ex. PW15/B.
34. PW6 HC Shivender, on 10/11/20012, was working as duty officer and on receipt of rukka Ex. PW2/A, he recorded FIR of this case, copy of which is Ex. PW6/A.
35. PW8 ASI Ramesh Kumar, while was working as duty officer on 10/11/2002,had recorded DD No. 11A, which was handed over to SI Jaipal Singh and Constable Ranbir for further investigation. Copy of DD No. 11 A is Ex. PW8/A. On the same day, at about 3.55 p.m., he received information from Dr. Omkar Nath Thakur of P.K. Gupta Nursing Home that injured Sansbir and Umed Singh were admitted in the hospital,hence, he recorded DD No. 13A, copy of which is Ex. PW8/B. It was sent to SI Jaipal Singh through Ct Bal Krishan. Original DD register has not been produced as the same has been destroyed.
36. PW9 HC Chander Shekhar has stated that on that day, on receipt of DD No.11A, he alongwith Ct Ranbir Singh and SI Jaipal reached at the spot, where they came to know that injured had already been removed to hospital by CAT and PCR, SC No. 26/1 10/15 whereas according to PW15 Inspector Jaipal singh, PCR and CATs ambulance had arrived there and had taken the injured persons to Trauma Centre, so, it is doubtful whether PCR and CATs ambulance came in presence of the police officials or had already taken the injured persons to hospital. According to PW9 HC Chander Shekhar, IO SI Jaipal got the spot photographed from different angles, positives of which are Mark X1 to X6, but no negatives has been placed on record in this case nor it is known, who had taken the photographs. In the cross examination, PW9 HC Chander Shekhar has specifically stated that they came to know that CATs ambulance and PCR had already left the spot, so, PW15 SI Jaipal Singh and PW9 HC Chander Shekhar have not corroborated in this respect.
37. PW9 HC Chander Shekhar has also stated that after reaching at the spot, they came to know that injured had already been removed to hospital by CATs and PCR. This witness has also not been able to depose as to who had taken the photographs of the place, where ashes/burnt articles were lying.
38. PW1 Dr. Girish Parbhat has stated that on 10/11/2002 at about 4.25 p.m., he was working as CMO in Trauma Centre of LNJP Hospital and examined injured Guru Dutt vide MLC Ex. PW1/A, injured Devender vide MLC Ex. PW1/B, injured Singh Ram vide MLC Ex. PW1/C and also filled up his xray requisition slip Ex. PW1/D, injured Satender vide MLC Ex. PW1/E and injured Sunita vide MLC Ex. PW1/F. He also made endorsement on the MLCs of these injured persons to the effect that they were fit for statement. So, according to the examination of PW1, injured persons were taken to Trauma Centre of LNJP hospital, whereas according to police officials, they reached at Traum Centre situated near ISBT, from where, IO had collected MLCs of injured persons. Both these places are entirely different, hence, it is doubtful whether police party had reached at Trauma Centre near ISBT or at LNJP hospital or whether the MLCs were got prepared later on and the statements of injured persons have been fabricated.
39. According to PW4 Dr. Neeraj Chaudhary, on 10/11/2002, in BJRM SC No. 26/1 11/15 hospital, patient Basanti and Dhyan Singh were examined by Dr. Rajeev vide MLCs Ex. PW4/A and Ex. PW4/B. PW4 has identified the writing and signatures of Dr. Rajeev on both the MLCs.
40. PW5 Dr. Nalini Mittal has also identified the writing and signatures of Dr. Rajeev, who had medically examined patient Basanti and Dhyan Singh under her supervision.
41. PW7 Dr. Girish Prabhat has also identified the writing and signatures of Dr. Pari Raja on MLCs Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW1/E and Ex. PW1/F.
42. According to PW12 HC Kali Charan, accused persons were arrested in this case. They made disclosure statements and also pointed out the place of occurrence.
43. Learned defence counsel has further contended that according to cross of PW2 Devender, his mother was present in the field at the time of incident. He cannot say whether his mother had seen the incident or not. His mother is illiterate. His mother might put her thumb impression. Learned defence counsel has further contended that according to Ex. PW9/DA, statement of Basanti was recorded and her thumb impression was obtained for the purposes of registration of the case, but later on, the same was not relied upon and another statement was recorded, which was suitable to the complainant party.
44. Learned defence counsel has further contended that there is no eye witness to the incident except the accused party in both the cases. It is further contended that incident had taken place in the month of November, 2002 and if both the parties were present in the fields to do agricultural work, then there could be some other persons also present in other fields for doing some agricultural work. It was noon time of winter, so, there could not be any possibility that no one was present in the fields at that time.
45. According to cross of PW3 Dhyan Singh, at the time of incident, accused SC No. 26/1 12/15 Umed Singh was not having any type of weapon in his hand, whereas according to PW11 Guru Dutt, accused Umed Singh hit his brother Singh Ram with jelly as a result of which, he sustained injury on his neck, so, considering the contradictions, the witnesses cannot be relied upon.
46. According to cross of PW3 Dhyan Singh, lot of blood oozed out from his head due to injury, but it had not fallen on the ground, which seems to be improbable. No blood stained clothes of injured have been taken into possession, so, there is no corroboration about the incident from other circumstances. It is further contended that according to PW11 Guru Dutt, he did not take kassi from the house nor any other family member. One Kassi was lying in the fields. It is further contended that accused persons have also sustained injuries in the incident, for which, cross case was got registered and in the cross examination, they have stated that some other persons had attacked both the parties, which corroborate with the cross of PW11 Guru Dutt, who has stated that they were not having any weapon of offence with them.
47. Learned defence counsel has further contended that accused persons have also been charged for offence u/s. 436 of IPC and according to cross of PW11 Guru Dutt, incident had taken place at the tubewell. They had sustained injuries, but no one bleeded from his/her injuries. His arm was broken. Blood had fallen on the ground, but he did not see the same. He was conscious after sustaining the injuries. Motor was not burnt in this incident. Meter and plastic pipe (sundwa) were burnt. It is further contended that PW11 Guru Dutt has been confronted with his statement Ex. PW11/DA, where fact of burning of meter is not so recorded.
48. Learned defence counsel has further contended that photographs of the place of incident have been brought on record. There are some ashes lying outside the tubewell room and meter can be seen intact inside the tubewell room. There is one wooden plank in burnt condition lying inside the tubewell room and there is no sign of fire or burning inside the tubewell room.
49. Learned defence counsel has further contended that according to Section SC No. 26/1 13/15 436 of IPC, it is necessary that mischief should be committed by fire with intent to cause the destruction of any building, which is used as human dwelling or place for the custody of articles. It is further contended that from the ashes outside the tubewell room, it is clear that it was not a big fire. It is further contended that whosoever had committed mischief was not having any intention to destroy the place of custody of property, otherwise fire could have been lightened inside the tubewell room, so, from the depositions of the witnesses, prosecution has not been able to prove offence u/s. 436 of IPC in any manner.
50. All the PWs examined in this case have stated before the Court in the examination in chief that incident had taken place and accused persons had caused injuries to them, but examination in chief is self contradictory and mutually contradictory with each witness. These witnesses in the cross examination have denied about the identity of the accused persons as the assailants. No weapon of offence i.e. lathi, kassi or jelly has been recovered from the place of occurrence. No blood stains were lifted from the place of occurrence. Witnesses have contradicted about the fact as to whether blood had fallen on the ground or not. According to MLCs of injured persons in both the cases, they sustained injuries, but even then, their blood stained clothes have not been taken into possession, so, under such circumstances, it is doubtful whether such incident had taken place in the manner, as deposed by the witnesses. They have denied the identity of the accused persons as the assailants, so, they are not inspiring any confidence to be relied upon about their examination in chief. The witnesses to the incident have not corroborated each other. Statements of the witnesses were recorded after a gap of time, so, they were having sufficient time to manipulate the facts and to introduce the presence of certain persons. It is also doubtful as to how many accused persons were present at the time of incident or whether they were present at all as their identity has been denied by the injured persons.
SC No. 26/1 14/15
51. Accordingly, prosecution has not been able to prove offences u/s. 147 read with Section 149 of IPC, u/s. 148 read with section 149 of IPC, u/s. 323/325 of IPC read with section 149 of IPC and u/s. 308 read with Section 149 of IPC beyond reasonable doubts. Accordingly, all the accused persons are acquitted for the same.
52. The contentions of learned defence counsel in respect of offence u/s. 436 of IPC are forceful as it is not deposed specifically as to who had put on fire certain articles outside the tubewell room. From the photographs, it is clear that it was very small fire and could not have destroyed the tubewell room in any manner. There was no article outside the tubewell room, which could lead fire inside the tubewell room in any manner, so, prosecution has also not been able to prove offence u/s. 436 read with Section 149 of IPC beyond reasonable doubts, for which, all the accused persons are acquitted.
Announced in the open court (Virender Kumar Goyal)
today on 26th of October,2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 26/1 15/15