Delhi District Court
State vs 1. Sonu (On Bail) on 21 January, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 27(I)/10 FIR No. : 234/09 PS : Seema Puri U/Sec. : 323/325/452/459/506/34 IPC Case ID : 02402R0205922010 State Versus 1. Sonu (on bail) S/o Sh. Birpal R/o E-46/D-35 Jhuggi No.263 Jain Mandir, Dilshad Colony, Delhi 2. Shibbu (on bail) S/o Sh. Chander Pal R/o E46/D35 Jhuggi No. A-86 Jain Mandir, Dilshad Colony, Delhi 3. Smt. Mithlesh (on bail) W/o Sh. Rakesh R/o E-46/D-35 Jhuggi No.319 Jain Mandir, Dilshad Colony, Delhi 4. Smt. Kamla (on bail) W/o Lt. Sh. Madan Lal R/o E-46/D-35 Jhuggi No.319 Jain Mandir, Dilshad Colony, Delhi Date of Institution : 12.10.2010 Date of reserving order : 27.09.2014 Date of Judgment : 21.01.2015 JUDGMENT
FIR No. 234/09 State Vs. Sonu & Ors Page No. 1 of 20
1. On 06.07.2009 at about 11.15 p.m., an information was received at police station Seemapuri through wireless operator that someone was doing 'marpeet' after entering into Jhuggi No. 319, Jain Mandir, Dilshad Colony. The said PCR call was reduced into writing in rojnamcha register vide DD No. 54A and entrusted to PW-7 SI Ajit Kumar through telephone for appropriate action.
2. On receipt of information, PW-7 SI Ajit Kumar reached at the place of incident at E-46/D-35, Jhuggi No. 178, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. On enquiry, he came to know that injured were taken to GTB Hospital.
3. On 06.07.2009 at about 11.50 p.m., accused Kamla was brought to Casualty, GTB Hospital by ASI Diwan Singh, PCR B-8 with alleged history of physical assault. She was conscious and alert. Dr. M.K. Sharma examined her vide MLC Ex.PW8/A. He observed following injuries:
(i) Lacerated wound 0.5 cm x 0.5 cm over left frontal eminence,
(ii) Two lacerated wound 2 cm x 0.5 cm and 3 cm x 0.5 cm over distal and medial aspect left forearm.
4. On 06.07.2009 at about 11.50 p.m., Smt. Mahalaxmi was brought to Casualty, GTB Hospital by ASI Diwan Singh, PCR B-8 with alleged history of physical assault. She was conscious and oriented. Dr. M.K. Sharma examined her vide MLC Ex.PW9/A. He observed following injuries:
(i) Lacerated wound 6 cm x 0.5 cm over right frontal eminence,
(ii) Lacerated wound 3 cm x 1 cm over left parietal occipital region,
(iii) Abrasion 2 cm x 2 cm over mid left forearm.
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5. On 06.07.2009 at about 11.55 p.m., PW-3 Param Shivam was brought to Casualty, GTB Hospital by ASI Diwan Singh with alleged history of assault. He was conscious and oriented. PW-2 Dr. Neeraj Kumar, Junior Resident examined him vide MLC Ex.PW2/A. He observed a lacerated wound on left parietal skull measuring 3 cm x 1 cm and abrasion on forehead in left infra-orbital area.
6. Thereafter, PW-7 SI Ajit Kumar reached at GTB Hospital. He collected MLC of injured Mahalaxmi, Param Shivam and Kamla. The injured persons stated that they were under treatment and they would make their statements in the police station.
7. On 07.07.2009, Smt. Mahalaxmi reached at police station Seemapuri. PW-7 SI Ajit Kumar recorded her statement Ex.PW3/A which is loosely translated as under:
"Smt. Mahalaxmi W/o Sh. V. Natashan R/o E-46/D-35, Jhuggi No. 176, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. Age 75 years.
Stated that I am residing at the afore- said address alongwith my family. I remain in the house. Yesterday, on 06.07.2009 at about 10.30 p.m. in the night, Sonu and Shibbu who reside in a nearby jhuggi were standing in front of my house. They play satta etc. I asked them not to do the said act. On this issue, Shibbu, Sonu, Mithlesh and her mother Kamla beaten me and my son Param Shivam with lathi and dandas after entering into my house. They are notorious type of people. They have terror in the street. Thereafter, police vehicle came and we were taken to GTB Hospital where I was treated. Now, I have come to the police station and given statement. Legal action be taken against the said persons. They threatened to kill me while leaving. You have recorded my statement. I have heard it. It is correct."
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8. PW-7 SI Ajit Kumar made endorsement Ex.PW7/A and handed it over to PW-1 ASI Suchitra Sharma for registration of FIR under section 323/452/506/34 IPC and proceeded to the spot alongwith the complainant Mahalaxmi.
9. On 07.07.2009 at about 01.05 p.m., PW-1 ASI Suchitra Sharma got the FIR No. 234/09 under section 323/452/506/34 IPC recorded through computer operator at police station Seemapuri and further investigation was assigned to PW-7 SI Ajit Kumar. She handed over a copy of FIR and original rukka to PW-4 HC Momin Ali to hand it over to PW-7 SI Ajit Kumar at the spot.
10. PW-4 HC Momin Ali handed over the copy of FIR and original rukka to PW-7 SI Ajit Kumar at Jhuggi No. 176, E-46/D-35, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi.
11. During investigation, PW-7 SI Ajit Kumar recorded statement of the witnesses conversant with the case. He prepared site plan Ex.PW7/B of the place of the incident i.e. Jhuggi No. 176, E-46/D-35, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi.
12. On 08.07.2009 at 4.00 p.m., accused Sonu and Shibbu were arrested from Main Road, Dilshad Garden, opposite Jain Mandir Jhuggi vide arrest memos Ex.PW3/B and Ex.PW3/C and their personal search was conducted vide memos Ex.PW3/D and Ex.PW3/E respectively. PW-7 SI Ajit Kumar interrogated them and recorded disclosure statement of accused Sonu and Shibbu which are Ex.PW5/A and Ex.PW5/B. FIR No. 234/09 State Vs. Sonu & Ors Page No. 4 of 20
13. On 13.07.2009, he obtained subsequent opinion regarding the nature of the injuries sustained by Smt. Mahalaxmi, PW-3 Param Shivam and the accused Kamla.
14. Dr. Dharmender Prasad, Senior Resident, Department of Surgery, GTB Hospital given opinion that the nature of injuries sustained by the complainant Smt. Mahalaxmi and PW-3 Param Shivam were simple.
15. Dr. Rahul, Senior Resident, Department of Neurosurgery given opinion that the nature of the injury sustained by the accused Kamla was simple.
16. Dr. Rajat Mahajan, Senior Resident, Department of Orthopaedics, GTB Hospital given opinion that the nature of the injury sustained by PW-3 Param Shivam and the accused Kamla was grievous.
17. On 14.07.2009, the accused Kamla was arrested vide arrest memo Ex.PW3/F and her personal search was conducted vide personal search memo Ex.PW6/A. PW-7 SI Ajit Kumar recorded her disclosure statement Ex.PW6/B.
18. On 15.07.2009, the accused Mithlesh was arrested vide arrest memo Ex.PW3/G and her personal search was conducted vide personal search memo Ex.PW6/C. PW-7 SI Ajit Kumar recorded her disclosure statement Ex.PW6/D.
19. On completion of investigation, the accused Sonu, Shibbu, Mithlesh and Kamla were charge-sheeted under section 323/325/452/459/506 read with section 34 Indian Penal Code, 1860.
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20. On appraisal of material on record, the accused Sonu, Shibbu, Mithlesh and Kamla were charged under section 323, 325, 452, 459, 506 read with section 34 Indian Penal Code, 1860 to which they pleaded not guilty and claimed trial.
21. During the course of trial, the prosecution examined 11 witnesses as under:
The witnesses Description of the witnesses PW-1 ASI Suchitra Sharma Duty Officer PW-2 Dr. Niraj Kumar Junior Resident, GTB Hospital PW-3 Param Shivam Complainant PW-4 HC Momin Ali Handed over rukka to IO PW-5 HC Mahipal Singh Arrest witness PW-6 L/Ct. Geeta Rani Arrest witness PW-7 SI Ajit Kumar Investigating Officer PW-8 Dr. Virender SR, Neurosurgeon PW-9 Dr. Davender Kumar CMO, GTB Hospital PW-10 Dr. D. Mohanti Asst. Professor, Surgery PW-11 Dr. Jaswant Kumar SR, Dept. of Orthopaedics
22. Material circumstances emerging in the prosecution evidence were put to the accused persons U/sec. 313 Cr.P.C.
23. The accused Sonu and Shibbu stated as under:
"I am innocent and have been falsely implicated in the present case. A quarrel has taken place at the house of accused Kamla at Jhuggi No. 319, E-46/D-35, Jhuggi, Jain Mandir, Dilshad Colony, Delhi. The complainant Smt. Mahalaxmi alongwith her son Param Shivam, Raju, Smt. Amrun and Balli entered the house of Kamla and gave beatings to her. I was not present even at the house of Kamla or near the house of complainant. The witness Param Shivam used to harass Mithlesh D/o. Kamla and on their objection, he alongwith the other persons gave beatings to Kamla and Mithlesh. I have been falsely implicated in this case later on."
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24. Accused Mithlesh stated as under:
"I am innocent and have been falsely implicated in the present case. A quarrel has taken place at the house of accused Kamla at Jhuggi No. 319, E-46/D-35, Jhuggi, Jain Mandir, Dilshad Colony, Delhi. The complainant Smt. Mahalaxmi alongwith her son Param Shivam, Raju, Smt. Amrun and Balli entered the house of Kamla and gave beatings to me and to my mother Kamla. The witness Param Shivam used to harass me and when I objected, he alongwith the other persons gave beatings to me and my mother Kamla. I have been falsely implicated in this case later on. I had made a PCR call from my mobile phone No. 9958061572 and informed the police about the quarrel. The police officials came to our jhuggi and took us to GTB Hospital for medical treatment. My mobile phone is issued in the name of my employer Baljeet Kaur."
25. Accused Kamla stated as under:
"I am innocent and have been falsely implicated in the present case. A quarrel has taken place at my house at Jhuggi No. 319, E-46/D-35, Jhuggi, Jain Mandir, Dilshad Colony, Delhi. The witness Param Shivam used to harass my daughter Mithlesh and when she objected, he alongwith Smt. Mahalaxmi, Raju, Smt. Amrun and Balli entered my jhuggi and gave beatings to me and my daughter Mithlesh. I have been falsely implicated in this case later on. My daughter Mithlesh had made a PCR call from her mobile phone No. 9958061572 and informed the police about the quarrel. The police officials came to our jhuggi and took us to GTB Hospital for medical treatment. I was medically examined at GTB Hospital vide MLC No. A-2994/09 Ex.PW8/A. I also lodged a complaint to SHO, PS Seemapuri about the incident on 22.08.2009, but, no action was taken by the police officials on my complaint. Therefore, I filed a complaint case against the complainant and the other persons, which is pending in the Court of Ms. Sushil Bala Dagar, Ld. MM, Delhi."
26. The defence examined three witnesses in defence evidence which are as under:
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27. DW-1 Sh. Bhupender Kumar, Record Keeper brought the record pertaining to complaint case no. 279/09 (new no. 443/RBT/13) dated 08.05.2013. Copy of complaint case no. 279/09 tilted as 'Kamla Vs. Param Shivam & Ors.' is Ex.DW1/A. Copy of complaint dated 22.08.2009 is Ex.DW1/B.
28. DW-2 HC Harish Kumar brought the DD register containing DD No. 28A Ex.DW2/A pertaining to receipt of complaint dated 22.08.2009.
29. DW-3 Sh. Mamraj Singh is a resident of Jhuggi No. 171, E-46/D-35, Jain Mandir, Dilshad Colony, Delhi. He stated that on 06.07.2009 at about 10.30 p.m., he was walking in the street and at that time, he head a noise from the house of the accused Kamla. He reached there. He saw that Param Shivam, his mother Smt. Mahalaxmi, his daughter Balli, Amrun and Raju were having lathi, danda and hockey in their hands. He stated that accused Param Shivam and Raju hit accused Kamla with danda and thereby, she sustained injury on her head and left arm. He stated that Balli, Amrun and Smt. Mahalaxmi caught Kamla and Mithlesh. He stated that Mithlesh was hit with fists and kicks. Mithlesh made a call at 100 number. PCR van reached at the house of Kamla. He stated that Kamla and Mithlesh were taken to GTB Hospital. He stated that he also reached at GTB Hospital. Local people rescued Mithlesh and Kamla by pelting stones. Param Shivam, Smt. Mahalaxmi, Balli, Raju and Amrun fled from the spot. He stated that the accused Shibbu and Sonu were not present at the house of Kamla.
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30. DW-3 Mamraj Singh was cross-examined by the State. In his cross-examination, he stated that he did not make any complaint to the senior officers of police or before any Court against Param Shivam and others. He stated that accused Shibbu and Sonu were not present there as they had gone to their work place. He stated that several residents of the street collected in the street. He stated that on the next day, he accompanied Kamla to the police station. He stated that he did not make any complaint in writing to the police. He stated that the accused Kamla made a complaint to the police.
31. DW-4 ASI Surender Kumar brought the diary register pertaining to the complaints. He stated that a complaint of Smt. Kamla was received in the office of Commissioner of Police on 25.08.2009 vide Sl. no. 10677 and photocopy of the relevant page of the said register containing the said entry is Ex.DW4/A.
32. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. A.K. Singhal, Advocate for the accused persons and perused written arguments filed by the defence.
33. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that PW-3 Param Shivam is the injured and eye witness to the incident. He submitted that PW-3 Param Shivam has categorically deposed about the incident in question and the role of the accused persons. He submitted that deposition of PW-3 Param Shivam is cogent and reliable.
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34. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that deposition of PW-3 Param Shivam corroborated by the medical evidence. He submitted that there is no infirmity in his deposition. He submitted that PW-3 Param Shivam has proved that the accused persons forcibly entered into his house armed with lathi and dandas and assaulted him and his mother Smt. Mahalaxmi (since deceased) and caused grievous injury to PW-3 Param Shivam and simple injury to his mother Smt. Mahalaxmi. He submitted that the prosecution has been able to prove its case and the accused persons are liable to be had guilty for the offences with which they have been charged.
35. Sh. A.K. Singhal, Ld. defence counsel submitted that PW-3 Param Shivam alongwith his friends and relevant used to harass and eve-tease the accused Mithlesh who his staying with her mother Kamla and she is having marital dispute with her husband. He submitted that on 06.07.2009 at 10.30 p.m., Smt. Mahalaxmi, Param Shivam, Balli, Amroon and Raju forcibly entered into the house of accused Kamla and assaulted them with kicks, fists and dandas and thereby, accused Kamla suffered grievous injuries. He submitted that the accused Sonu and Shibbu were not present at that time. He submitted that the accused Mithlesh called the police through her mobile no. 9958061472 and pursuant thereto, DD No. 54A was recorded and assigned to PW-7 SI Ajit Kumar. He submitted that the place of incident is Jhuggi No. 319, Jain Mandir, Dilshad Colony, Delhi and not Jhuggi No. 176.
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36. Sh. A.K. Singhal, defence counsel further submitted that PW-3 Param Shivam is not a reliable witness. He submitted that PW-3 Param Shivam has deposed falsely on material aspects. He submitted that PW-7 SI Ajit Kumar has not properly investigated the case. He submitted that there are serious lapses/discrepancies in the investigation. He submitted that DD No. 54A has not been proved on record. He submitted that ASI Diwan Singh, PCR who had taken the injured persons to GTB Hospital has not been examined. He submitted that PW-7 SI Ajit Kumar did not visit the place of incident as mentioned in DD No. 54A. He submitted that the Investigating Officer has suppressed the genesis of the occurrence and the place of incident from the Court. He submitted that the prosecution has not been able to explain as to how the accused Kamla sustained grievous injury on her left forearm and injury on her head. He submitted that PW-3 Param Shivam has deposed contrary on the role of the accused Shibbu. He submitted that there is unexplained delay of 25 hours in registration of FIR. He submitted that there are material contradictions in the statement of PW-3 Param Shivam regarding the place and time of recording of his statement. He submitted that deposition of PW-3 Param Shivam does not inspire confidence. He submitted that the accused persons made complaint to the police and thereafter, filed complaint case in the Court of law. He submitted that DW-3 Mamraj Singh has proved that Smt. Mahalaxmi, Param Shivam and their relatives and friends assaulted the accused persons.
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37. I have carefully analysed the evidence, oral and documentary, on record.
38. PW-3 Param Shivam is star witness of the case. It would be appropriate to have a glimpse of his deposition:
"On 06.07.2009 at about 8.30 p.m, I returned from my duty to my house. At about 10.30 p.m., accused Shibbu and Sonu, present in the Court were noting down Satta number in front of my jhuggi. My mother and myself asked them not to do Satta business in front of our jhuggi, on which, accused Shibbu, Sonu, Mithlesh and Kamla, present in the Court entered in our jhuggies and gave beatings to me and my mother with danda, fist blow and kicks. Accused Shibbu was armed with a danda and he gave beatings to us by that danda, while the other accused present in the Court gave fists blows and kicks to us. I informed police on number 100. PCR van came to the spot and shifted my injured mother to hospital. I and my mother were examined at GTB Hospital. I was examined vide MLC No. B-3049/09, which is already Ex.PW2/A, which bears my thumb impressions at point B. Next morning, I alongwith my mother returned to my house in a Phatphat Sewa Jeep. I got down to bring water bottle from my jhuggi, while my mother was inside the jeep. Accused Mithlesh present in the Court told me that you can't do anything to them, as police persons are in their pocket. I alongwith my mother went to PS Seema Puri. Police did not record our statement. I went to DCP office and complaint to DCP, North-East. DCP, North-East gave a note to me and directed me to hand it over to SHO, North-East. Next day, I handed over the note of the DCP, North-East to SHO, Seema Puri, but, he had not initiated any action against the accused.
On 07.07.2009, police persons came to our jhuggi and recorded my statement and statement of my mother. My mother put her thumb impression on her statement in my presence. I can identify her thumb impression, if shown to me. The statement of my mother Smt. Mahalaxmi Devi is Ex.PW3/A, which bears her thumb impression at point A. My mother had expired in the year 2010....."
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39. In his cross-examination by the defence, he deposed as under:
"Jhuggi number of accused Kamla is 319. Her jhuggi is situated about 10' away from my jhuggi. My jhuggi is situated at a corner.....My jhuggi is having two rooms. Only myself and my mother were present in the jhuggi at the time of the incident.....One Arjun is having his jhuggi in front of my jhuggi. The said Arjun and the other neighbours were also present in their jhuggies at that time. Vol. Nobody came to save us from the accused persons. Police officials have not made any enquiries from Arjun and other neighbours. I had never taken Arjun, Gariba or any other neighbour to the PS, as a witness.....Blood has also spilled on the floor in my jhuggi, near the main gate. The floor is a cemented floor. The blood stained were present even at the time of visit of the PCR Van and the local police. The local police visited my jhuggi on the next day of the incident at about 8.00 p.m. My mother was wearing a Blouse and Petticoat at the time of the incident. Her blouse and petticoat were also stained with blood. The police officials had not asked for handing over the blood stains clothes to them.....The statement of my mother was recorded on 07.07.2009 at about 8.00 p.m. The complaint was lodged by me with the DCP concerned and he asked me to meet the SHO concerned and handed over a slip to me. I handed over the said slip to the SHO concerned. My statement was also recorded on 07.07.2009 at about 8.00 p.m. at our residence..... We reached the GTB Hospital after about one hour of the incident. Accused Mithlesh and Kamla were not taken to the GTB Hospital, by the PCR Van, with us. I had not seen the injuries of accused Kamla. I had not disclosed the names of the accused persons, to the doctors on duty. I called the police from a nearby shop.....It is wrong to suggest that accused Kamla gave information to the police regarding the quarrel and she informed that a quarrel has taken place at jhuggi no. 319. Accused Mithlesh was not having any injury.....We remained at the hospital till morning on the next day. The police officials of the concerned PS met us in the hospital. We reached the PS from the hospital at about 8.00 p.m. We reached our house at FIR No. 234/09 State Vs. Sonu & Ors Page No. 13 of 20 about 2.30 p.m. We waited at the PS for about two hours, for the police to take action against the accused. But, they had not taken any action and therefore, I approached the DCP office.....I had not seen accused Kamla and Mithlesh, during the time, I remained at the GTB Hospital....."
40. Evidence of PW-3 Param Shivam can be crystallized as under:
(a) On 06.07.2009 at about 10.30 p.m., accused Shibbu, Sonu, Mithlesh and Kamla entered into his jhuggi and assaulted and his mother with danda, fist blows and kicks.
(b) The accused Shibbu was armed with a danda and he assaulted PW-3 Param Shivam and his mother Smt. Mahalaxmi with that danda and other accused persons hit them with fists and kicks.
(c) PW-3 Param Shivam reported the incident to the police on 100 number.
(d) PCR van shifted him and his mother to GTB Hospital.
(e) On 07.07.2009, he visited police station Seemapuri and thereafter, the office of DCP, North-
East as the local police did not take any action.
(f) On 07.07.2009 at about 8.00 p.m., local police recorded his statement and statement of his mother in his jhuggi.
(g) Jhuggi of accused Kamla bearing Jhuggi No. 319 was situated at a distance of 10' from his jhuggi.
(h) Arjun, resident of jhuggi in front of jhuggi of Param Shivam was present at the time of the incident.
(i) There was blood on the floor of the jhuggi and blood stains were present at the time of visit of PCR van and the local police.
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(j) Accused Mithlesh and Kamla were not taken to the GTB Hospital in the PCR van with them.
(k) He had not seen injuries sustained by the accused Kamla.
(l) He had not seen the accused Kamla and Mithlesh in GTB Hospital till he remained in GTB Hospital.
41. On careful analysis of the evidence on record, it is evident that PW-3 Param Shivam is not a credible witness. He has made false statement on material aspects. It can be demonstrated, as under:
(i) PW-3 Param Shivam stated that he reported the incident to the police on 100 number. He stated that he made a call to the police from a nearby shop.
However, a perusal of DD No. 54 shows that the incident was reported to the police through mobile no. 9958061472. PW-3 Param Shivam has not stated that he made the call to the police through the said number.
(ii) According to PW-3 Param Shivam, the place of incident was Jhuggi No. 176, E-46/D-35, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. However, DD No. 54A records that the place of incident was Jhuggi No. 319, Jain Mandir, Dilshad Colony, Delhi.
(iii) PW-3 Param Shivam stated that the blood spilled on the floor of his jhuggi and blood stains were present at the time of visit of PCR van and location police. However, PW-7 SI Ajit Kumar did not find any blood stain at the time of his visit pursuant to receipt of DD No. 54A or after recording of statement of Smt. Mahalaxmi.
(iv) PW-3 Param Shivam stated that the accused Mithlesh and Kamla were not taken to GTB Hospital by PCR van and he has not seen injuries sustained by the accused Kamla and further, that he had not seen the accused Kamla and Mithlesh in GTB Hospital till he remained there.
FIR No. 234/09 State Vs. Sonu & Ors Page No. 15 of 20 However, MLC Ex.PW8/A shows that the accused Kamla was examined in GTB Hospital at 11.30 p.m. prior to the examination of PW-3 Param Shivam and Smt. Mahalaxmi. It further shows that HC Mool Chand had taken the accused Kamla to GTB Hospital alongwith PW-3 Param Shivam and Smt. Mahalaxmi. Smt. Mahalaxmi and Param Shivam were examined at 11.50 p.m. and 11.55 p.m. respectively.
(v) MLC Ex.PW8/A shows the presence of lacerated wound on left frontal eminence and two lacerated wound on distal and radial aspect of left forearm of the accused Kamla whereas PW-3 Param Shivam has stated that he had not seen any injury of the person of the accused Kamla.
(vi) MLC Ex.PW2/A and MLC Ex.PW9/A show that PW-3 Param Shivam and Smt. Mahalaxmi were conscious and oriented at the time of their examination. PW-7 SI Ajit Kumar stated that the injured persons refused to make any statement on the ground that they were under treatment. Therefore, it cannot be said that the police made no attempt to record his statement and take action thereon.
(vii) PW-3 Param Shivam stated that on 07.07.2009 at 8.00 p.m., his statement and statement of his mother were recorded at his residence by the local police. However, FIR Ex.PW1/A and complaint Ex.PW3/A show that Smt. Mahalaxmi made her statement in the police station and thereafter, FIR Ex.PW1/A was registered on 07.07.2009 at 1.05 p.m.
42. It is therefore, clear that the prosecution has not been able to prove by leading cogent and convincing evidence that the incident in question had taken place in jhuggi no. 176, E-46/D-35, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. The prosecution has also not been able to prove the genesis and the manner of the incident.
43. To add further, there are serious lapses in the investigation, as under:
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(a) PW-7 SI Ajit Kumar reached at the place of incident at 11.15 p.m. on 06.07.2009 on receipt of DD No. 54A. However, he did not visit jhuggi no. 319, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. He stated in his cross-examination that he could not trace jhuggi no. 319 or its owner during the entire investigation.According to PW-3 Param Shivam, Jhuggi No. 319
was situated at a distance of 10' from his jhuggi. It is surprising that an Investigating Officer did not visit the place of incident recorded in the DD entry which was marked to him for appropriate action. The fact that the investigating officer is making a false statement can be gathered from the fact that PW-7 SI Ajit Kumar arrested the accused Kamla and accused Mithlesh from jhuggi no. 319. PW-6 L/Ct. Geeta stated that the complainant Param Shivam had taken PW-7 SI Ajit Kumar to Jhuggi No. 319 where accused Kamla and Mithlesh were arrested vide arrest memos Ex.PW3/F and Ex.PW3/G respectively.
(b) DD 54A records that PCR call was made on 06.07.2009 at 11.15 p.m. regarding the incident through mobile no. 9958061472. PW-3 Param Shivam stated that he made the call through a shop. According to the accused Mithlesh, she made a call through the said mobile number. She stated that the said mobile phone was issued in the name of her employer Ms. Baljeet Kaur. PW-7 SI Ajit Kumar stated in his cross-examination that he tried to trace the owner of the said mobile number mentioned in DD No. 54A. He stated that he has no knowledge that the said number belong to the accused Mithlesh. PW-7 SI Ajit Kumar has not stated as to what investigation he made to trace the subscriber of the said mobile number. He made no investigation at all regarding the fact as to who made call at 100 number through mobile no. 9958061472.
(c) PW-7 SI Ajit Kumar stated that he reached at the place of incident and came to know that the injured were shifted to GTB Hospital. He stated that on 07.07.2009, he reached at the house of the complainant and prepared the site plan at the instance of PW-3 Param Shivam. PW-3 Param Shivam stated that the blood spilled on the floor of the house. He FIR No. 234/09 State Vs. Sonu & Ors Page No. 17 of 20 stated that the blood stains were present at the time of visit of the local police. However, PW-7 SI Ajit Kumar has not stated anything regarding the presence of blood in jhuggi no. 176, E-46/D-35, Jain Mandir Wali Jhuggi, Dilshad Colony, Delhi. Site plan Ex.PW7/B also does not show the presence of any blood stain in the said jhuggi. It creates considerable doubt regarding the place of the incident.
(d) There was delay of 25 hours in registration of FIR. This delay has remained unexplained. Reasons furnished for this delay are un-satisfactory. According to PW-3 Param Shivam, he reached at police station Seemapuri on the next day after his discharge from the hospital but police did not take any action and thereafter, he visited DCP, North-East who handed him over a note to hand it over to SHO but even then, SHO, PS Seemapuri did not take any action. PW-7 SI Ajit Kumar stated that he reached at GTB Hospital and made enquiry from the injured persons but they refused to make their statement on the ground that they were under treatment. Such unexplained delay of 25 hours in registration of FIR despite the fact that the injured persons were conscious and oriented and fit for making statement at the time of their medical examination is fatal to the case of the prosecution.
(d) The prosecution has not been able to explain the grievous injuries sustained by the accused Kamla. No explanation as to how the accused Kamla sustained the said grievous injury came forward in the statement of PW-3 Param Shivam or PW-7 SI Ajit Kumar. PW-3 Param Shivam went to the extent of stating that he had not seen any injury on the person of the accused Kamla. PW-7 SI Ajit Kumar collected MLC and obtained opinion about the nature of the injuries sustained by the accused Kamla but he has not make any investigation as to how she sustained the said grievous injuries.
(e) The incident in question taken place in a crowded area. PW-7 SI Ajit Kumar also stated that several persons were present when he visited the place of the incident but he has not examined any resident of the area regarding the place and manner of the incident.
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(f) PW-7 SI Ajit Kumar has not examined ASI Diwan Singh and HC Mool Chand who had taken Param Shivam, Smt. Mahalaxmi and the accused Kamla to GTB Hospital. The said witnesses were material in order to ascertain the place of the incident. They had reached at the place of the incident first and they could have stated the state of things observed by them at the time of their visit and the place from where they had taken the injured persons to GTB Hospital.
(g) PW-7 SI Ajit Kumar stated that the injured persons did not make statements on the ground that they were under treatment. However, he made no DD entry regarding the fact that he visited the injured persons in GTB Hospital and the injured persons were not willing to make statement.
(h) The defence has examined DW-3 Mamraj Singh. DW-3 Mamraj Singh stated that on 06.07.2009 at 10.30 p.m., Param Shivam, Mahalaxmi, Balli, Amru and Raju were carrying lathi, danda and hockey and Param Shivam and Raju had given danda blow to Kamla and she sustained injury on her head and left arm. He stated that the accused Mithlesh made a call at 100 number. His deposition is corroborated by the medical evidence. His evidence is convincing and inspires confidence. There is no reason to doubt his deposition.
44. In view of the aforesaid discussion, it is crystal clear that the evidence of PW-3 Param Shivam is not credible and worth reliance. There are serious lapses in the investigation. Evidence of DW-3 Mamraj Singh is consistence and the defence version appears to be probable. There is unexplained delay of 25 hours in registration of FIR. This Court has no hesitation in reaching to the conclusion that the prosecution has failed to bring home the charges against the accused persons.
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45. Accordingly, the accused Sonu, Shibbu, Mithlesh and Kamla are acquitted from charges under section 323, 325, 452, 459 and 506 read with section 34 Indian Penal Code, 1860. Let copy of this judgment be sent to the office of Commissioner of Police for appropriate action at their end.
Announced in the open court SANJAY SHARMA on this 21st day of January, 2015. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
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