Delhi District Court
State vs . Sunil Choudhary And Anr. on 28 February, 2015
FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr. IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE02, (DISTRICT SOUTH EAST), SAKET COURTS, DELHI. FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr. JUDGMENT
A. SL. NO. OF THE CASE : 123/2/05
B. DATE OF INSTITUTION : 26.11.2005
C. DATE OF OFFENCE : 10.06.2005
D. NAME OF THE COMPLAINANT : Sh. Sandeep Sherawat
S/o Sh. Diwan Singh
E. NAME OF THE ACCUSED : 1. Sunil Choudhary
S/o Sh. Jagbir Singh
2. Kamlesh
S/o late Sh. Shashi Bhushan
F. OFFENCE COMPLAINED OF : U/s 323/506/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquitted
I. DATE OF SUCH ORDER : 28.02.2015
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that on 12.06.2005, a written complaint was given by Sh. Prem Singh, wherein he had alleged that on 10.06.2005, he alongwith his cousin Vinod had gone to the office of accused Sunil Chaudhary situated at A203, OIA phaseI, New Delhi as he was summoned by the said accused to settle his account and receive payment. He had alleged that at 6.30 pm, they reached the office of the complainant and when he asked the accused for return of his money, the said accused caught hold of his collar 1/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
and started abusing him and called his other associates. Thereafter, the said accused alongwith his associates including accused Kamlesh started beating him with iron rods and danda, due to which he sustained injuries in his head, hands and legs. The complainant had further alleged that his cousin tried to intervene, but in the said assault his cousin also sustained injuries. He had alleged that his car keys and mobile phone also fell in the said quarrel and accused Sunil Chaudhary criminally intimidated him with the dire consequences of causing death. He had explained about the delay in filing of the said complaint stating that earlier, he could not give his statement as he was unwell. On the basis of the said complaint, the present FIR under section 323/506/34 IPC was lodged at PSOIA. During investigation, accused Sunil Chaudhary and Kamlesh were arrested. However, the remaining accused persons could not be identified and arrested. After conclusion of investigation, the present challan under the aforesaid sections was filed in the court.
2. In compliance of Section 207 Cr. P.C, the copy of the challan and the documents annexed with the challan were supplied to both the accused persons. Prima facie charge U/s.323/506/34 IPC was made out against both the accused persons. Accordingly, on 07.08.2007, the charge was framed by the Ld. Predecessor of this court. Both the accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined six witnesses.
4. PW1 Sh. Sandeep Sherawat is the complainant and he has proved his complaint dated 12.06.2005 as Ex. PW1/A. In addition to his complaint Ex. PW1/A, he has described the specific roles of both the accused persons in detail. He has testified that the accused Sunil Chaudhary hit him with the iron rod on his head, his legs and in the middle part of the body and accused Kamlesh hit him with a danda. He has correctly identified both the accused persons.
5. PW2 HC Swaran Kumar was duty officer, who had recorded this FIR. He has proved its copy as Ex. PW2/A.
6. PW3 Sh. Vinod Kumar has deposed on the similar lines as that of PW1 2/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
Sh. Sandeep Sherawat. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid repetition. He correctly identified the accused Sunil Chaudhary but failed to identify the other accused Kamlesh.
7. PW4 HC Harish Kumar has testified that on 12.06.2005, while he was posted at PSOIA, information about the incident which was received by the duty officer was reduced into the form of an FIR and the copy of the FIR alongwith the original rukka was handed over to him. He took both the documents to factory no. A203, OIA, PhaseI and handed it over to HC Ranjeet who was already present there. The complainant Sandeep Sherawat was also present there. The accused Sunil Chaudhary and Kamlesh were arrested from the service road in front of the factory. He accompanied HC Ranjeet to AIIMS hospital where both the injured persons were medically examined.
8. PW5 ASI Suresh Kumar has testified that the investigation of the present case was handed over to him on 12.07.2005. He had obtained the result on MLCs of injured Sandeep Sherawat and Vinod wherein the nature of the injury was opined as simple blunt.
9. PW6 ASI Ranjeet is the IO of this case, who has testified that on 10.06.2005, he was posted as HC at PSOIA. On that day, on receipt of DD number 19A regarding a quarrel which took place at A203, OIA PhaseI, he alongwith Ct. Harish went to the said address. On inquiry, it was revealed that the injured persons had already been shifted to the hospital. Thereafter, he received a DD number 23A regarding the admission of the injured persons namely Sandeep Sherawat and Vinod Kumar at Apollo hospital. He alongwith Ct. Harish went to the Apollo hospital and obtained the MLCs of the injured persons. He moved an application for statement of the injured persons and the concerned doctor made endorsement that the injured persons are fit for statement. He has further testified that he requested both the injured persons to give the statement but they refused to give the same because they were not feeling well. Thereafter, he alongwith Ct. Harish returned to the police station and the said DD entries were kept pending. He has further testified that on 12.06.2005, both 3/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
the injured persons came to the police station and they narrated the incident to him. He recorded the statement of injured Sandeep Sherawat and Vinod Kumar and endorsed the same. He has further testified that he got the present FIR registered. Thereafter, he alongwith the injured Sandeep Sherawat went to A203, OIA PhaseI and prepared the site plan at his instance. He has further testified that after registration of FIR, Ct. Harish came at the spot with original rukka and copy of FIR and the same were handed over to him and thereafter, he searched the accused persons and they were found in front of the said factory. He has further testified that he had interrogated them and arrested them. Thereafter, he was transferred from PSOIA. He has correctly identified both the accused persons.
10. Under section 294 Cr PC, both the accused persons admitted the MLCs of injured persons Sandeep Sherawat and Vinod Kumar, which were put to them and the same are Ex. Y1 and Y2 respectively. Thereafter, PE was closed.
11. Statements of both the accused persons u/s. 313 Cr.P.C were separately recorded. All the incriminating evidence were put to them. In the said statement, they have stated that they have been falsely implicated in the present case and they are innocent. They have stated that the accused persons were the aggressors, who attacked them. Accused Kamlesh has stated that he was not present at the spot. Thereafter, the matter was listed for defence evidence.
12. Accused Sunil Chaudhary moved an application under section 315 Cr PC and he was allowed to be examined as defence witness. He appeared as DW1 and testified that on 10.06.2005, Sandeep Sherawat and his cousin came to his office at A203, OIA PhaseI. He has testified that they instructed him not to work with their common customers. On his refusal to comply the said instructions, they started beating him. He has testified that he was treated at Holy Family hospital for the injuries sustained by him in the said incident. He has placed on record his treatment record and the same is marked as DW1/C. He has testified that accused Kamlesh was not present at the time and place of occurrence. Thereafter, DE was closed and the matter proceeded for final arguments.
4/9 FIR NO. 546/05PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
13. I have heard Ld. APP for the state and Ld. counsel for both the accused persons. I have carefully perused the case file.
14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. In order to sustain conviction of the accused for the offence punishable under section 323/506/34 IPC, the prosecution is required to prove the following ingredients : (I) Accused persons voluntarily caused bodily pain, disease or infirmity to the victim;
(II) The accused persons threatened someone with injury to his person, reputation or property, or to the person, reputation or property of another in whom the former was interested;
(III). The accused persons did so with an intent to cause alarm to the victim of offence;
(IV) The accused persons did so to cause the victim to perform any act which he was not legally bound to do; and (V) The said acts were committed by all the accused persons in furtherance of their common intention.
16. Ld. Counel for the accused persons has contended that the present FIR has been registered unlawfully as the offences punishable under section 323/506/34 IPC are noncognizable in nature and the same is registered without any direction of the magistrate under section 155 Cr PC. He has further contended that therefore, the investigation conducted in the said FIR is unlawful and the proceeding emanated out of the said unlawful investigation is vitiated. The offences punishable under section 323/506 IPC are admittedly noncognizable offences. However, the offence punishable under section 506 IPC was made cognizable in Delhi by a Notification No. 232Home 5/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
dated 11.01.1933 issued by Mr. J. N. G. Johnson, the then Chief Commissioner of Delhi. Therefore, the said offence became cognizable on 11.01.1933 and it remained so till 15.01.2004 i.e. the date on which the said notification was directed to cease to be in operation by the Hon'ble Delhi High Court in case titled as Narender Kumar Vs. State 2004 CrlJ 2594. Subsequent thereafter, no notification was issued to remake the said offence cognizable. Thus, on 12.06.2005 i.e. the date on which the present FIR was lodged, it was a noncognizable offence. Hence, the registration of the present FIR under section 323/506/34 IPC, in absence of the order of Magistrate under section 155 CrPC, was not permissible.
17. Now, this court has to consider the ramification/effect of the investigation and trial of this case which is based on the impermissible FIR lodged for the non cognizable offences. The Hon'ble Delhi High Court was seized of this issue in case titled as Dr. Lata and Anr. Vs; State and Anr 2009 (2 )JCC 903, wherein it observed as under: "8. In H.N.Rishbud Vs. State of Delhi AIR 1955 SC 196, the Hon'ble Supreme Court interalia observed as under:
'A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr PC as the is provided in Section 190 Cr PC as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance...... While no doubt, in one sense, Clauses
(a), (b) and (c) Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190 (1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.... If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be 6/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice'
9.Therefore, even if investigation was invalid for want of order of the Magistrate under section 155 (2) of the Code of Criminal Procedure, the police report based upon such an investigation is not nullified and does not become nonest merely on account of this procedural lapse in the investigation and it is very much permissible for the court to take cognizance even of a noncognizable offence, on the basis of the evidence collected during such an investigation, unless some prejudice is shown to have been caused to the accused for want of requisite order under section 155 (2) of the Code."
Therefore, Hon'ble Delhi High Court has categorically held that registration of FIR in a noncognizable offence, without an order of Magistrate and subsequent collection of evidence during investigation of the said FIR is merely a procedural lapses. The cognizance of the offence taken pursuant to the conclusion of investigation in the said FIR is not impermissible unless some prejudice is shown to have been caused to the accused. Therefore, trial of a case, in which FIR is registered for noncognizable offence, shall vitiate only if it is shown that it has caused prejudice to the accused.
18. The delay in registration of FIR/lodging of complaint is not fatal for prosecution provided there is reasonable explanation for the same. In the instant case, the alleged incident took place on 10.06.2005. The injured persons were fit to give their statements on the same day. However, the injured Sh. Sandeep preferred to give his complaint after delay of two days. The reasons advanced for the said delay are that he was not in fit state of mind to give the complaint. However, the said explanation is not justified and in the light of the opinion of the concerned doctor on his MLC, the same does not hold any water. Therefore, the said explanation is liable to be discarded being unreasonable and unjustified. The said unexplained delay gave an opportunity to the complainant to materially improve, alter and embellish his true statement. Hence, his 7/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
complaint does not necessarily depict the true state of affairs at the spot. In my considered opinion, the said delay in lodging of FIR has caused prejudice to the accused persons.
19. In respect of the offence punishable under section 506 IPC, there are material contradictions and improvements in the testimony of the witnesses. In complaint Ex. PW1/A, the complainant had alleged that he was criminally intimidated by the accused of being killed. However, PW1 Sandeep and PW3 Vinod Kumar in their respective testimonies have deposed that the accused persons had threatened them of dire consequences of causing death in the eventuality of their redemanding of money. Thus, in complaint, the said threatening was absolute. However, in the testimonies of PWs, it became conditional. The said improvement is not only material, but it also weakens the case of the prosecution. One of the essential ingredients for the offence punishable under section 506 IPC is that an alarm is caused to the victim. It is an admitted position of law that mere threat does not come within the mischief of 506 IPC unless it causes an alarm to the victim. The prosecution has failed to lead evidence to show that any alarm was caused to the injured on account of the said threat issued by the accused persons. Thus, on account of the above discussions, both the accused persons are entitled to be acquitted for the offence punishable under section 506/34 IPC.
20. Besides, there are other material improvements in the testimony of PW1 Sandeep and PW3 Vinod Kumar. In his statement, PW1/complainant Sandeep has testified that accused Sunil Chowdhry gave a blow on his head with an iron rod. However, no such allegations were made by the complainant in his complaint or in supplementary statement that was recorded under section 161 Cr PC. Moreover, PW3 Vinod Kumar failed to identify the accused Kamlesh to be one of the perpetrator of the present offence, though he was identified by PW1. The said fact has created doubt regarding the identity of the accused Kamlesh.
21. Furthermore, DW1 Sunil Chowdhry has testified that he was present at his office and the complainant and his associates were aggressors who criminally 8/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
assaulted him at his office. DW1 Sunil Chowdhry has also testified in his testimony that accused Kamlesh was not present at the time of incident. He has also placed on record his medical record marked as Mark DW1/C to show that he sustained injuries in the said incident. Therefore, the injuries on the person of both the parties have been established. However, it is not clearly established as to who out of them was the aggressor and who acted in self defence. The possibility of the accused persons to have reacted in self defence seems to be more probable as the place of incident is the office of the accused Sunil Chaudhary and the accused persons were outsiders. Thus, the testimony of DW1 Sunil Chowdhry inspire more confidence as compared to the testimony of the prosecution witnesses. The prosecution has failed to discharge its onus of proving its case beyond any reasonable doubt and thus, both the accused persons are entitled to benefit of doubt.
22. The prosecution has failed to lead clinching and conclusive evidence to indict either of the accused persons for the offences under which they have been charged. In view of the above discussion both the accused persons namely Sunil Choudhary and Kamlesh are acquitted for the offences punishable U/s 323/506/34 IPC. They are directed to furnish fresh personal bond in the sum of Rs. 25,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. The same are furnished and accepted for the next six months.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN court today i.e. 28.02.2015 (DHEERAJ MOR) METROPOLITAN MAGISTRATE SAKET COURTS: DELHI 9/9 FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC State Vs. Sunil Choudhary and Anr.
FIR NO. 546/05 PS: OIA U/S: 323/506/34 IPC 28.02.2015 Present: Sh. Narender Yadav, Ld. APP for the State.
Both the accused persons are on bail with their counsel.
Vide my separate judgment announced in the open court today, both the accused persons namely Sunil Choudhary and Kamlesh are acquitted for the offences punishable U/s 323/506/34 IPC. They are directed to furnish fresh personal bond in the sum of Rs. 25,000/ each with one surety each in the like amount, in accordance with Section 437A Cr.P.C. The same are furnished and accepted for the next six months.
File be consigned to Record Room after due compliance.
(Dheeraj Mor) MM02/SE/SC/ND 28.02.2015 10/9