Delhi District Court
State vs . Jaivir Singh Etc. on 6 August, 2011
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Jaivir Singh etc.
FIR No. 188/98
PS: Keshav Puram
U/s 452/323 IPC
Case ID No. 02401R0124971999
JUDGEMENT
A) Sl. No. of the case : 1/2
B) The date of commission : 28.05.1998
of offence
C)The name of the complainant : Sh. Chandersain s/o Sh. Laxman
Prasad
r/o 2205/168, Ganeshpura, Tri Nagar,
Delhi
D) The name & address of accused : 1. Jaivir Singh s/o Lt. Sh. Mitru Singh r/o 2205/168, Ganesh Pura, Tri Nagar, Delhi
2. Kamaljeet Singh @ Vira s/o Sh.
Inderjeet Singh
r/o 2205/168, Ganesh Pura, Tri Nagar,
Delhi
E) Offences complained of : U/s 452//323/34 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted.
H) The date of such order : 06.08.2011
Date of Institution: 02.01.1999
Judgment reserved on: 06.08.2011
Judgment announced on: 06.08.2011
FIR No. 188/98 Page 1/10
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THE BRIEF REASONS FOR THE JUDGEMENT:
The accused persons namely Jaivir Singh and Kamaljeet @ Vira have been sent to face trial in respect of offences u/s 452/323/34 IPC by the prosecution on the allegations that on 28.05.98 at about 9.15 am at H.No. 2205/168, Ganesh Pura, Tri Nagar, Delhi, both of them in furtherance of their common intention committed house tress pass in order to commit offence punishable with imprisonment and accused Kamaljeet @ Vira also caused hurt on the person of Chander Sen and Uma.
The present case was registered on the basis of DD No. 8 PP Shanti Nagar received by HC Bhagwat Swaroop. After receipt of said DD entry, he alongwith Ct. Rajbir went to H.No. 2205/168 where they came to know that injured was removed to Hindu Rao Hospital by PCR. HC Bhagwat Swaroop reached at the hospital and obtained MLC of Chander Sain. The said DD entry was kept pending but after obtaining result on the MLC of Chander Sain( on which injuries were found to be simple in nature), SI K.P.Singh recorded the statement of complainant wherein he said that accused persons had extended threat to him for vacating tenanted premises failing which his belongings shall be thrown out from there. He also stated that accused Kamaljeet @ Vira gave beatings to him with the help of danda and also gave kick blow to his mother when she tried to save him. On the basis of said statement, FIR in respect of offences u/s 452/323/34 IPC was got registered and further investigation was conducted by SI K.P.Singh. FIR No. 188/98 Page 2/10 3
After completion of investigation, charge sheet in respect of offence u/s 452/323/34 IPC was prepared and filed in the Court against accused and accordingly cognizance was taken by Ld. Predecessor.
The accused were supplied with the copies of the challan in compliance of section 207 Cr.P.C and notice in respect of offences u/s 451/323/34 IPC was served upon them on 19.03.2001 to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined as many as six witnesses till 06.07.2011 namely PW1 Chander Sain, PW2 Ct. Rajbir, PW3 HC Bhagwat Swaroop, PW4 Raj Singh, PW5 Sh. D.K.Sharma Medical Record Clerk and PW6 Retd. SI K.P.Singh.
Out of the aforesaid witnesses, PW1 namely Sh. Chander Sain is the complainant who deposed that on 28.05.98 at about 9.00/9.15 am when he was taking bath in the room, both the accused came to his room and asked him to vacate the same immediately and on his refusal to vacate the said room, accused started beating him. His mother namely Bhu Devi and his son namely Deepak had separated him (complainant) from the accused persons. His neighbourer namely Uma Rani also intervened but the accused started throwing his household articles from the said room. Accused Kamaljeet hit him with one danda on his left shoulder and also threatened to kill his children. He made call at 100 number on which official of PCR and local police came there and then the household articles were put back into the room. Police recorded his statement Ex.PW1/A FIR No. 188/98 Page 3/10 4 and he was removed to HRH. He further deposed that on 24.06.98, he went to PP Shanti Nagar where police recorded his statement and also prepared siteplan. During his cross examination on behalf of accused, he admitted that suit for permanent injunction as well as another petition filed by him in the Court of ARC against the accused persons, have already been dismissed. He further admitted that both the accused are also residing on the first floor of the same property. He further admitted that his mother and son had also sustained injury during the incident but they were not taken for medical treatment by the police. He also admitted that police did not record statement of his wife, his son or of his mother. He deposed that local police had come to the spot in his presence but when confronted with his statement Ex.PW1/A, it was found that this fact was not recorded therein. PW1 deposed that he himself had gone to PP Shanti Nagar on 24.06.98 and did not report anywhere before that. He admitted that case was registered on 24.06.98 whereas the incident took place on 28.05.98. He also admitted that there is a kitchen besides the room which has its opening towards the chowk(lobby). He further deposed that his tenanted room is adjacent to the wall of house no. 2206 but same has not been correctly shown in the siteplan. He further deposed that accused had entered into his room and threw his belongings out of the room but when confronted with statement Ex.PW1/A, it was found that there is no specific mention about the accused entering into the room.
PW2 Ct. Rajbir deposed that after receipt of DD No. 8PP on 28.05.98 at PP Shanti Nagar, he alongwith HC Bhagwat Singh went to H.No. 2205/168 where injured was reported to have been removed to HRH by PCR. He remained at the spot whereas HC Bhagwat Singh went to hospital. They searched for the accused persons but could not FIR No. 188/98 Page 4/10 5 succeed. During his cross examination, PW2 admitted that in his statement Ex.PW2/DA recorded by IO, he had stated that no quarrel was reported to have taken place at the spot on 28.05.98.
PW3 HC Bhagwat Swaroop also deposed on the same lines as stated by PW2 during his chief examination. He further deposed that DD No. 8PP was kept pending and after obtaining result of MLC, he prepared kalandra u/s 107/151 Cr.P.C against both the parties. During his cross examination, he admitted that factum regarding kalandra u/s 107/151 Cr.P.C is not mentioned in his statement u/s 161 Cr.P.C recorded by IO. He further admitted that except for few plastic jugs, no other articles were found outside the house of the tenant.
PW4 retired SI Raj Singh is the formal witness i.e DO who has proved the carbon copy of FIR No. 188/98 as Ex.PW4/A and his endorsement Ex.PW4/B on the rukka. Said witness has not been cross examined by the accused despite opportunity.
PW5 is the Medical Record Clerk of Hindu Rao Hospital who has proved MLC of patient Chander Sain as Ex.PW5/A. During cross examination, he denied the suggestion that any tempering has been done in MLC number of the patient Chander Sain.
PW6 Retired SI K.P.Singh (who is the IO of this case) deposed that on 26.06.08, MLC of injured Chander Sain was handed over to him for investigation. Complainant Chander Sain came to the police station Keshav Puram on 26.06.98 and gave statement to him on which he made his endorsement Ex.PW6/A and got the FIR registered. Thereafter, he alongwith complainant went to the spot where he prepared siteplan Ex.PW6/B at the instance of complainant and also inquired from the complainant about the names of eye witnesses to the incident. The complainant disclosed the name of FIR No. 188/98 Page 5/10 6 neighbour Uma Rani but she could not be found at that time. Subsequently, both accused were granted anticipatory bail by Session Court and they were released on bail on 07.07.98 vide bonds Ex.PW6/C and Ex.PW6/D respectively.
During his cross examination, he deposed that he did not read the statement of Chander Sain which was recorded by HC Bhagwat Swaroop on 28.05.98. He did not have any personal knowledge about the incident of 28.05.98 and he did not examine the mother, wife as well as son of the complainant during investigation because complainant did not tell him that those persons were also present at the time of incident. He further deposed that nothing was recovered from the possession of accused persons but denied the suggestion that site plan Ex.PW6/B is not correct as per site.
Thereafter, the statements u/s 281 Cr.P.C of accused were recorded on 06.08.11 in which all the incriminating evidence which has come on record, was put to them. The defence of the accused was of general denial. They stated that Chander Sain used to reside as tenant in the aforesaid house. When Chander Sain was asked to vacate the house as he was not giving rent regularly to them then he had falsely implicated them in this case. They further submitted that Chander Sain had also filed two civil petitions against grand father which were dismissed. They further submitted that Chander Sain had demanded Rs. 2.5 lacs to vacate the premises. However during the pendency of this case, he vacated the premises after taking Rs. 50,000/ from grand father. However, both the accused opted not to lead any DE.
I have already heard Ld. APP on behalf of State and Ld. Counsel Sh. Ombir Singh FIR No. 188/98 Page 6/10 7 adv on behalf of accused persons. I have also carefully perused the material available on record.
While opening his argument, Ld defence counsel submitted that there is a delay of about one month in registration of FIR in this case which has not been explained by the prosecution due to which accused is entitled to benefit of doubt.
On the other hand, Ld. APP for the State submitted that FIR could not be registered immediately as the result on MLC of injured was not given by doctor concerned and therefore, accused should not be given any benefit of doubt on this count.
After considering the submissions made, this Court agrees with the submission made by Ld defence counsel for the reason that allegations disclosed by complainant/injured namely Chander Sain had disclosed commission of cognizable offences under the law and therefore, there was no bar in registration of FIR immediately on the date of incident in the absence of opinion regarding nature of injuries provided by the doctor concerned. In this backdrop, it was for the prosecution to explain inordinate delay of about one month in registration of FIR but same has not been explained at all. Rather, the facts of the matter suggest that there has been concealment of material facts from the side of investigating agency. It is nowhere the case of prosecution in the entire charge sheet that any kalandara in respect of offence U/s 107/151 Cr.PC was prepared by HC Bhagwat Swaroop on 28.5.98 or at any time thereafter. However, PW3 HC Bhagwat Swaroop deposed during his chief examination that after obtaining result on MLC, he had prepared kalandara U/s 107/151 Cr.PC against both the parties. Anyhow, the said kalandara has not seen light of the day till date. No copy of said kalandara has been placed on record by prosecution for the reasons best known to them. In case, the FIR No. 188/98 Page 7/10 8 allegations were disclosing commission of cognizable offences then the Court fails to understand as to why kalandara U/s 107/151 Cr.PC was prepared against both the parties. In case, said kalandara was prepared against both the parties then there was no reason as to why FIR in respect of offences U/s 452/323/34 IPC was registered subsequently. There is one more interesting fact which is to be taken note off i.e it is mentioned in FIR that there is no delay in registering the said FIR which on the face of it is not correct.
PW1 namely Chander Sain/Complainant stated to the police in his statement Ex PW1/A that both the accused came to him and asked to vacate the tenanted room failing which his belongings would be thrown out and accused Kamaljeet gave danda blow on his person and also gave kick blow to his mother when she tried to intervene. However, he improved his version to a great extent during his statement recorded before the Court when he deposed that besides his mother, his son namely Deepak and his neighbourer namely Ms. Uma Rani were also present at the time of incident. Not only this, it has further come on record during cross examination of PW1 that his wife was also present at the time of incident and his mother as well as aforesaid son had also sustained injuries during the incident. The portion of his statement to the aforesaid extent, does not find mention in his statement Ex PW1/A recorded by IO. The relevant portion of his said statement was also confronted with his previous statement Ex PW1/A and it was found that PW1 did not mention about those facts in statement Ex PW1/A. The said conduct on the part of PW1/complainant clearly shows that he has improved his statement in order to lend credence to the story cooked up by him. In case the mother, wife and the aforesaid son of complainant(PW1) would have been present at the time of incident, complainant would have told this fact to the IO and IO would have examined those persons during FIR No. 188/98 Page 8/10 9 investigation. However, IO/ Retd. SI K.P Singh(PW6) has deposed during his cross examination that he did not examine mother, wife and son of complainant during investigation because he was not told that those persons were also present at the time of incident. The said statement of IO clearly shows that there is an after thought on the part of complainant in disclosing the names of his mother, wife and son in order to support his story.
As per the statement Ex PW1/A given by complainant, there is no mention of presence of Ms. Uma Devi/Injured at the time of incident but in her statement U/s 161 Cr.PC made to the police, said Smt. Uma Devi has claimed that she was also present at the time of incident and she was also threatened by the accused persons. The complainant has nowhere stated this fact either in his statement given to the police or in his statement recorded before the Court which again falsifies the story put up by prosecution in the charge sheet. Further more, said Ms. Uma Devi has not been produced during trial despite grant of repeated opportunities. Summons issued to said PW for various dates of hearing had been received back unserved with the reports that she had already vacated the premises at the given address long time back.
In the absence of any independent corroboration to the statement of PW1/complainant, this Court is of the view that the prosecution cannot be said to have proved its case against accused beyond reasonable doubt. The statement of PW1 alone does not inspire confidence and requires independent corroboration so as to arouse belief in the prosecution story.
There is another lacuna in the case of prosecution which further creates doubt in the prosecution story. It has been admitted by PW1/Complainant that his tenanted room FIR No. 188/98 Page 9/10 10 situates adjacent to the wall of house no. 2206 but same has not been correctly shown in the site plan placed on record. Ld defence counsel has rightly argued that the site plan Ex PW6/B prepared by IO, is not correct as the tenanted room of complainant is shown to be adjacent to the wall of property no. 2204. Although, IO Retd. SI K.P Singh(PW6) had denied the suggestion that site plan Ex PW6/B is not correct but the fact remains that site plan is incorrect and goes to show that same has not been prepared by IO at the spot. Thus, possibility of said site plan being prepared while sitting in the Police Station or at some other place, cannot be ruled out. Same goes to show that fair and independent investigation has not been conducted by IO and thus, same further creates doubt in the prosecution story benefit of which must be given to the accused.
In view of the aforesaid discussion, this Court is of the considered view that the prosecution has failed to prove its case against either of the accused persons beyond reasonable doubt. Consequently, both the accused persons are acquitted. Their B/B are cancelled. Documents, if any, be returned after cancellation of endorsement and after proper verification and identification.
File be consigned to Record Room.
Announced in the open Court (VIDYA PRAKASHD)
today on 06.08.2011 (ACMM1/NW/RC/DELHI)
FIR No. 188/98 Page 10/10