Delhi District Court
Sc No. 52/12. State vs . Krishan Kumar & Other. on 19 December, 2014
SC No. 52/12. State Vs. Krishan Kumar & Other.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Session Case No. 52/2012.
PS Najafgarh.
U/s 324/452/341/149/34 IPC.
1. Jagbir Singh,
S/o Sh. Boop Singh,
2. Sh. Ranbir Singh
S/o Sh. Boop Singh,
Both R/o House No. RZ1,
XBlock, New Roshanpura,
Main Paprawat Road,
Najafgarh, New Delhi43. ... Complainants.
Vs.
1. Krishan Kumar,
Sh. Puran Mal,
R/o RZ26, New Roshanpura,
Main Paprawat Road,
Najafgarh, New Delhi43.
2. Puran Mal,
Sh. Prem Raj,
R/o RZ26, New Roshanpura,
Page No. 1 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
Main Paprawat Road,
Najafgarh, New Delhi43.
3. Ram Phal,
S/o Late Sh. Daryao Singh,
R/o RZ1, Prem Nagar,
Main Paprawat Road,
Najafgarh, New Delhi43.
4. Hoshiar Singh,
S/o Sh. Surat Singh,
R/o Village Ladpur,
Tehsil & District Jhajjar,
Haryana.
At Present Residing at:
RE22, Phase II, Roshanpura Extn.,
Main Paprawat Road,
Najafgarh, New Delhi43.
5. Sanjay @ Nanha,
S/o Late Sh. Daryao Singh,
R/o RZ1, Prem Nagar,
Main Paprawat Road,
Najafgarh, New Delhi43.
6. Dilbagh Singh,
S/o Late Sh. Daryao Singh,
R/o RZ1, Prem Nagar,
Main Paprawat Road,
Najafgarh, New Delhi43.
7. Subhash,
S/o Sh. Puran Mal,
R/o RZ26, New Roshanpura,
Page No. 2 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
Main Paprawat Road,
Najafgarh, New Delhi43. ... Accused.
Date of Institution. : 27.8.2012.
Date of Arguments. : 29.11.2014.
Date of Judgment. : 19.12.2014.
:: JUDGMENT ::
1. Initially a complaint u/s 200 CrPC alongwith an
application u/s 156 (3) CrPC was filed by both the complainants
namely Jagbir Singh and Ranbir Singh against seven accused
persons namely Krishan Kumar, Puran Mal, Ram Phal, Hoshiar
Singh, Sanjay @ Nanha, Dilbagh Singh and Subhash. Vide
order dated 14.3.2005, the concerned ld. MM directed the SHO
of PS Najafgarh u/s 156 (3) CrPC to register an FIR and to
investigate the matter. After completion of investigation, the
investigating agency filed cancellation report. Thereafter the
concerned ld. MM directed the complainants to lead pre
summoning evidence and on the basis of pre summoning
evidence, the concerned ld. MM summoned all the seven
accused persons for the offences u/s 324/341/452 IPC. Vide
order dated 21.9.2011, the concerned ld. MM had framed the
charge for the offence u/s 324/452/341 r/w/s 34/149 IPC
Page No. 3 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
against all the accused persons. After summoning of all the
accused persons, pre charge evidence was led. Vide order dated
23.8.2011, ld. Predecessor Sh. Virender Bhatt had directed the
concerned ld. MM to send the present case file to his Court for
trial, as cross State case relating to same incident vide FIR No.
221/04, u/s 302/324/323/34 IPC of PS Najafgarh, was pending
trial before the said Court against the complainants of this case.
Both the cross cases were received on transfer in this court.
2. Vide order dated 12.9.2014 of this Court passed in
criminal revision petition titled as "Jagbir Singh & Another Vs.
State & Other", bearing CR No. 46/14, moved on behalf of the
complainants, charge for the offences u/s 149 IPC, u/s 452
r/w/s 149 IPC, u/s 341 r/w/s 149 IPC and u/s 308 r/w/s 149
IPC was ordered to be framed against all the accused persons.
Accordingly vide order dated 16.9.2014, charge for the offences
u/s 149 IPC, u/s 452 r/w/s 149 IPC, u/s 341 r/w/s 149 IPC
and u/s 308 r/w/s 149 IPC was framed against all the seven
accused persons, to which they pleaded not guilty and claimed
trial.
3. Since it was a sessions triable case, therefore as per
Section 225 CrPC, the trial of the present case was conducted
Page No. 4 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
by the ld. Addl. PP for State.
4. In support of its case, the prosecution has examined 9
witnesses.
5. PW1 Jagbir Singh, one of the complainants/injured of
the present case has deposed about the factum of incident. He
also proved application u/s 156 (3) CrPC and complaint u/s 200
CrPC moved before the Court of ld. MM as Ex PW1/A, site plan
filed alongwith aforesaid complaint as Ex PW1/B.
6. PW2 Dr. Arunima Hajra, Medical Officer (Casualty),
RTRM Hospital, New Delhi, has deposed that on 17.4.2004, she
medically examined patients Ranbir Singh and Jagbir Singh
and has proved their MLCs Ex PW6/B and Ex PW6/A
respectively. She has further deposed that she opined the
nature of injury of Ranbir Singh as simple caused by sharp
edged weapon and the injury of Jagbir Singh was opined as
simple in nature and injury no. 1 was caused by sharp object
and rest injuries were caused by blunt object. She further
deposed that the injury no. 1 of Ranbir Singh were lacerations
(two) in left temporal, one of them is two and a half inch and the
other one is one inch, second injury was laceration in right
Page No. 5 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
frontal of two inches and third injury was laceration in left
parital of two inches. She also deposed that she gave the
opinion regarding the nature of injury after perusal of the XRay
report. She has further deposed that the injury no. 1 of Jagbir
Singh was laceration in right temporal region, one inch with
clean cut margin, second laceration in occipitoparietal junction
with irregular margin and third injury was bruise at tip of left
shoulder with tenderness and mild swelling.
7. PW3 Const. Vincent from the office of DCP, Main Line
Security, Vinay Marg, New Delhi, has deposed that as per their
records, the complaint dated 24.4.2004 and 29.4.2004 were not
available as the same were already destroyed being old record
pertaining to the year 2004. He has proved the order with
regard to weeding out vide Ex PW3/1 and Ex PW3/2.
8. PW4 HC Dayaram from the office of Commissioner of
Police, has proved the relevant records about receiving of
complaint dated 29.4.2004 Ex PW4/1 and has deposed that as
per their record, the said complaint was marked to DCP, South
West District, vide entry no. 5401.
9. PW5 Satwanti, mother of both the complainants, has
Page No. 6 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
claimed herself to be an eye witness and has also deposed about
the incident.
10. PW6 Ranbir Singh, other complainant/injured of the
present case, has also deposed about the factum of incident. He
has deposed about the incident from start as to how it
happened.
11. PW7 Bhoop Singh (father of both the complainants and
husband of PW5), has deposed that on 17.4.2004 in the early
morning, he left his house for going to his sister's house in
Haryana. He was telephonically informed about the incident by
his family members. Thereafter he immediately came back
within 23 hours and directly reached at RTRM Hospital, where
his both sons namely Ranbir Singh and Jagbir Singh were
admitted in injured condition, but he was not allowed to meet
his sons by the police. Thereafter he came to his home where
he came to know about the whole incident from his family
members and also came to know that his both sons were
removed to the hospital by the PCR. He further deposed that
after knowing all the facts about the incident, he immediately
went to SHO, PS Najafgarh, to make complaint against all the
accused persons, but the SHO did not lodge his complaint and
Page No. 7 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
even did not receive his complaint and asked him to run away
from the police station, otherwise he was threatened to be
implicated. Then after 45 days, he met the DCP and made
complaint marked as Mark A in writing to him. He further
deposed that he also made written complaint marked as Mark B
to the Commissioner of Police, but no action was taken by the
police on his complaints. He further deposed that thereafter he
moved a petition before the Hon'ble High Court, but the same
was withdrawn and has proved certified copy of the order vide
Ex PW7/A.
12. PW8 Seema, wife of complainant Jagbir Singh has
deposed that on 17.4.2004 at about 7.308.00 am, while she was
doing her household work, she heard some noise from outside of
the house and her husband was getting ready for going to his
office. On hearing the noise, her husband ran outside and she
also followed him. She further deposed that when she came
outside, she saw many persons gathered there, which included
accused persons and they were having lathies and dandas and
were beating her 'jeth' (brother in law) Ranbir Singh and her
mother in law Satwanti Devi was trying to rescue him. She also
deposed that when her husband tried to intervene, accused
Ram Phal gave a lathi blow on the head of her husband and
Page No. 8 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
upon asking of her husband, she immediately rushed inside
her house and made telephone calls to phone no. 100 from their
land line no. 25019624. She further deposed that after
informing the police, she again came out of her house and saw
that her husband Jagbir Singh and her brother in law Ranbir
Singh were lying in a pool of blood and her mother in law was
crying helplessly and the persons gathered at spot, rescued her
husband and brother in law from the accused persons,
otherwise the accused persons would have killed her brother in
law and husband. She also deposed that after 510 minutes,
police reached at spot and on seeing the police, accused persons
fled away from the spot and her husband Jagbir Singh and
brother in law Ranbir Singh were taken to hospital in PCR Van
and she also accompanied them.
13. PW9 ASI Dharamvir has deposed that on 17.4.2004, he
was posted as Duty Head Constable at RTRM Hospital, where at
about 8.009.00 pm, PCR Zebra 93 van brought injured Jagbir
Singh and Ranbir Singh and he gave information to this effect to
PS Najafgarh.
14. Thereafter separate statements of all the accused
persons u/s 313 CrPC was recorded and the stand of the
Page No. 9 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
accused persons was of general denial. The accused persons
took the plea that this is a false case and that they have not
inflicted the injuries on the complainants.
15. I have heard Sh. V.K. Swami, ld. Addl. PP for State,
duly assisted by Sh. Satish Tamta, ld. counsel for complainants.
I have also heard Sh. Anirudh Yadav, ld. counsel for all the
accused persons.
16. I have perused the entire record including the written
submissions filed on behalf of the complainants.
17. Before proceeding to deal with the evidence, I would
like to bring on record the fact that with regard to the incident
in question there was a cross State case bearing FIR No. 221/04
of PS Najafgarh vide Sessions case no.50/12, which was got
registered on the statement of accused Krishan Kumar against
the injured complainants of the present case. Vide separate
judgment of even date in that case dictated to the Stenographer
and announced in open court, both the complainants herein
have been convicted u/s.302/324/323/34 IPC and their
defence has been rejected. The evidence recorded in that case
would also be relevant in deciding the present case and at
Page No. 10 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
appropriate place in the judgment, the evidence recorded in the
cross case would also be referred to.
18. PW1 Jagbir Singh has deposed that on 17.4.2004,
when he was getting ready for office at about 7.308.00 am, he
heard some noise and came out of his house, he saw that
accused persons namely Krishan Kumar, Puran Mal, Dariyao
Singh, Ramphal, Sanjay, Dilbagh, Subhash, Hoshiyar Singh
were beating his brother Ranbir Singh with lathis, dandas and
iron rods and his brother was lying on the ground. He further
deposed that he saw accused Krishan Kumar having an iron rod
in his hand, giving a blow with rod on the head of his brother
and when he tried to rescue him, accused Sanjay and Dilbagh
caught hold of him from behind and Ram Phal hit on his head
with a lathi. He also deposed that other accused persons also
started beating him and in the meantime, his wife Seema also
came there to rescue them and he asked her to go inside and to
make a call to PCR. He further deposed that he also made a call
to PCR. Many public persons gathered at the spot and some of
them tried to save him and his brother from the accused
persons. PCR came at the spot after some time and on seeing
the PCR, all the accused persons fled away from the spot. He
further deposed that blood was oozing from his head as well as
Page No. 11 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
head of his brother Ranbir Singh and his brother Ranbir Singh
was lying unconscious on the ground in the pool of blood. The
police had taken them to RTRM Hospital and he was got
discharged from the hospital by the SHO despite the fact that
treatment was still going on. He further deposed that he was
taken to the PS Najafgarh and the then SHO had obtained his
signatures on some blank papers. He also deposed that on the
next day, he was produced before the concerned ld. MM and was
sent to Jail. He further deposed that they were saved by the
public persons otherwise the accused persons would have killed
them.
19. PW6 Ranbir Singh deposed that he was running a
general store in the year 2004 from front portion of his premises
no. RZ1, New Roshan Pura, Paprawat Road, Najafgarh, New
Delhi and on 17.4.2004, he opened his shop in the morning
hours at about 6.30 am. At about 7.00 am, 23 customers were
present at his shop, when accused Puran Mal, who was heavily
drunk came in front of his shop and started abusing him.
Meanwhile his (accused Puran Mal) brother Daryao Singh (since
deceased) also reached there. Both of them started abusing
him. He further deposed that he came out of the shop and
requested them not to abuse him. In the meantime, his (Ranbir)
Page No. 12 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
mother also came there, who had brought tea for him and asked
him to come inside the shop. Thereafter he came inside the
shop. He further deposed that when he was taking tea
alongwith his mother inside the shop, meanwhile all the seven
accused persons and another person Daryao Singh (since
deceased), entered into his shop and they were having dandas,
lathies and iron rods in their hands. Accused Krishan gave a
blow of iron rod on his head. He further deposed that his
mother tried to rescue him from accused persons, but the
accused persons and Daryao Singh (since deceased) forcibly
dragged him out from his shop and started beating mercilessly
with lathies, iron rods and bottles and the accused persons
were saying "aaj isko khatam karke iski kahani khatam kar dete
hain". Accused Krishan also gave blow of bottle on his head.
He further deposed that his mother was crying for help, many
people were gathered at the spot and he sustained severe
injuries. He further deposed that on hearing the noise, his
brother Jagbir Singh came out of the house and tried to rescue
him from the accused persons, but he was also beaten by the
accused persons. He further deposed that he was beaten very
mercilessly, as a result of which he became unconscious and his
brother also sustained injuries. He further deposed that on
hearing the noise, Seema wife of his brother Jagbir Singh, also
Page No. 13 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
came out of the house and she made telephone call to the
police, who took them to RTRM Hospital, where he was got
admitted and was got discharged by the police officials on
21.4.2004. He further deposed that he was taken to PS
Najafgarh by the police officials, where some papers in blank
were got signed from him and was produced before the Court in
Patiala House Courts.
20. It is the admitted case of the prosecution and defence
that all the accused persons and the complainants were living
across the street and the relations between them were strained
since many years. It is also not in dispute that on 17.4.2004 at
7.30 am, a scuffle took place between them. Admittedly calls
were made at phone no. 100, which was recorded vide DD No.
10A of PS Najafgarh. The PCR vehicle came at the spot and took
both the injured complainants to RTR Hospital. DD No. 10A
was marked to ASI Satbir Singh, who alongwith Const. Abhay
Singh reached at RZ1, New Roshan Pura, Paprawat Road,
Najafgarh, Delhi, and ASI Satbir Singh took two of the
injured/accused persons of this case namely Krishan Kumar
and Puran Mal to RTRM Hospital.
21. In cross Sessions case no.50/12, complainants Jagbir
Page No. 14 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
Singh and Ranbir Singh of this case, who are accused persons
in said cross case bearing FIR No. 221/04 of PS Najafgarh, have
been convicted for the offences u/s 302/324/323/34 IPC, as in
that case death of Daryao Singh (in the same incident) and
injuries to two of the accused persons herein namely Krishan
Kumar and Puran Mal caused by complainants herein in
furtherance of their common intention, were held to be proved
and no justifiable explanation for same was given.
22. Where regarding any incident if accused persons also
suffer with injuries, then it is for the prosecution to explain
injuries and nonexplanation of the injuries suffered by the
accused persons can fatal to the prosecution case in certain
circumstances.
23. To what extent the nonexplanation of injuries on the
person of accused can prove fatal to the case of prosecution has
been explained by the Hon'ble Supreme Court of India in the
matter of "State of Madhya Pradesh Vs. Misri Lal (dead) &
Others", AIR 2003 SC 4089, wherein in para 17 and 18, it was
held as follows:
"17. The last and which appears to be fatal to the
Page No. 15 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
prosecution case is nonexplanation of the injuries
sustained by the accused. As already said accused
Mishrilal received as many as five injuries, which
were dangerous to life. Madhusudan and
Jamunanprasad received simple injuries. In Ex. P1
as well as in the entire deposition of PWs, the
prosecution has not explained the injuries sustained
by the accused. The defence version is that on being
retreated the bullockcart of Babulal, the complainant
party Maharaj Singh, Gopal, Mathura Lal, Lakhan,
Jagdish, Mulia, Kailash and Karan Singh came with
lathis and farsa. Mathura Lal hit Mishrilal's head
with the farsa and Babulal, Maharaj Singh and
Karan Singh beat Mishrilal with lathis. Madhusudan
ran to save his father Mishrilal and they also beat
him. When Jamunaprasad came to save, he was also
beaten up and on that Jamunaprasad ran towards
the house and made two fires in the air to save his
father. It is the case of defence that the bullet, which
struck Bhavarsingh, came from towards the house of
Babulal. In the face of defence version, which
competes in probability with that of the prosecution
case, it was mandatory on the part of the prosecution
to have explained the injuries sustained by the
accused and nonexplanation of the injuries is fatal to
the prosecution case. In Lakshmi Singh and others
v. State of Bihar, (1976) 4 SCC 394, referring to
earlier decisions in Mohar Rai v. State of Bihar,
(1968) 3 SCR 525: AIR 1968 SC 1281 : 1968 Cri
LJ 1479, it was held by this Court:
"......where the prosecution fails to explain
the injuries on the accused, two result
follow : (1) that the evidence of the
Page No. 16 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
prosecution witnesses is untrue; and (2)
that the injuries probabilise the plea taken
by the appellants...
...in a murder case, the nonexplanation of
the injuries sustained by the accused at
about the time of the occurrence or in the
course of altercation is a very important
circumstance from which the court can
draw the following inferences :
(1) that the prosecution has
suppressed the genesis and
the origin of the occurrence
and has thus not presented
the true version;
(2) that the witnesses who
have denied the presence of
the injuries on the person of
the accused are lying on a
most material point and
therefore their evidence is
unreliable;
(3) that in case there is a
defence version which explains
the injuries on the person of
Page No. 17 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
the accused it is rendered
probable so as to throw doubt
on the prosecution case.
The omission on the part of the prosecution
to explain the injuries on the person of the
accused assumes much greater importance
where the evidence consists of interested or
inimical witnesses or where the defence
gives a version which competes in
probability with that of the prosecution
one...
...However there may be cases where the
nonexplanation of the injuries by the
prosecution may not affect the prosecution
case. This principle would obviously apply
to cases where the injuries sustained by
the accused are minor and superficial or
where the evidence is so clear and cogent,
so independent and disinterested, so
probable, consistent and creditworthy, that
it far outweighs the effect of the omission
on the part of the prosecution to explain the
injuries."
18. In State of Rajasthan Vs. Madho, 1991 (2)
RCR (Crl.) 463 (SC) : AIR 1991 SC 1065 at page
1067 this Court held as under :
"The fact remains that both the respondents
had sustained serious injuries, Kishna mainly on the skull whereas Madho on the Page No. 18 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the inured PW2."
24. Similar view was expressed by Hon'ble Supreme Court in the case of "Surender Paswan Vs. State of Jharkhand", 2004 (SC) 742.
25. In the connected cross Session case no.50/12 accused Krishan Kumar has deposed that after complainant Ranbir Singh gave injuries to Daryao Singh with ice picker while complainant Jagbir Singh caught hold of him, then his father (Puran Mal) pushed both the complainants aside, as a result of which both the complainants fell down. Further accused Puran Page No. 19 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. Mal has broadly corroborated him and deposed that in order to save Daryao Singh from the complainants, he pushed accused Ranbir Singh back, as a result of which he fell down by his head on a cut tree branch nearby. Thus the prosecution in cross case had explained as to how the aforesaid simple injuries were received by both the complainants herein. Further the injuries to both the complainants herein were superficial and admittedly there was no bony or neurological injury. The MLCs Ex.PW6/A and Ex.PW6/B in this case which are Ex DW3/A and Ex DW3/B in cross Sessions case no.50/12 of complainants Jagbir Singh and Ranbir Singh respectively mention certain injuries, opined as simple and said injuries did not appear to be serious. Further in cross case DW3 Dr. Arunima Hajra, Medical Officer, RTRM Hospital, had stated that the said injuries could be possible with hitting by broken bottle or could be selfinflicted. Hence even self infliction of said injuries can not be ruled out. Further even if it is assumed that both the complainants had received injuries only in the incident still it is clear from the testimony of accused Krishan Kumar and Puran Mal in cross case that after complainant Ranbir Singh gave ice picker blows in the chest of Dariyao Singh, accused Puran Mal pushed both the complainants in order to save Dariyao Singh (and it was natural for him to do so being real brother of Dariyao Singh) and Page No. 20 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. hence both the complainants fell down and also received injuries. Further PW1 has admitted in this case that it is mentioned in his complaint Ex.PW1/A in para 6 that accused persons pushed and struck Ranbir Singh against a tree outside the shop. PW6 Ranbir Singh has also admitted that after dragging him out of the shop the accused person herein had pushed him as a result of which he collided with the tree. Thus the injuries to both the complainants of this case have been explained.
26. However, in the cross State case, from the testimony of PW1 and PW2 wherein they claimed that at about 07.30 am, on the asking of Ranbir, Jagbir caught hold of Dariyao Singh (since deceased) from behind and Ranbir gave ice picker blows in the chest of Dariyao Singh, from the testimony of PW7 who declared Dariyao Singh brought dead vide his MLC at 08.50 pm and from testimony of autopsy surgeon PW9 who proved that Dariyao Singh died of hemorrhagic shock due to ante mortem two puncture wounds in his both lungs which were sufficient to cause his death individually and collectively and said injuries were possible from recovered ice picker (at the instance of Ranbir), the death of Dariyao Singh as a result of injuries received by him in the incident was held to be proved. However Page No. 21 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. the claim of the complainants is that Dariyao Singh received injuries in the melee when the accused persons of this case were throwing bottles. Still no explanation has been given by complainants as to how the two fine stab injuries on vital part (chest) puncturing both the lungs were inflicted to Dariyao Singh. Even if claim of complainants in this regard is taken on face value, still there was no chance of Dariyao Singh receiving those injuries by throwing of bottles by other accused persons of this case. Also from the sequence of events and timings proved on record of cross case, it is evident that Dariyao Singh received injuries in the said incident only at about 07.30 am and was declared brought dead at 08.50 am as per his MLC.
27. Further the PW1 Jagbir Singh has improved his testimony in connected cross case by deposing in this case that when he tried to rescue his brother, accused Sanjay and Dilbagh caught hold of him. He has further improved his testimony by claiming that some of the public persons gathered at the spot tried to save him and his brother. It is pertinent to mention that there is no such testimony of any public person. Further PW Ranbir has made improvement in his testimony by deposing that accused persons were saying "Aaj isko khatam karke iski kahani khatam kar dete hain". PW8 Seema, wife of Page No. 22 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. Jagbir, who was in police has admitted that she had not told the concerned doctor or the police about the injuries received by her husband and his brother although she has claimed that she accompanied them to hospital in PCR van.
28. There are large number of discrepancies and contradictions between the testimonies of the complainants herein in the connected cross State case wherein they are accused and their testimonies in this case, compared to original case mentioned in complaint.
29. Contradiction in testimony of complainants and their family members in cross State case :
In the cross Sessions case, as per the claim of the complainants Jagbir Singh and Ranbir Singh, eight accused persons namely Krishan Kumar (complainant/PW1), Puran Mal (PW2), Daryao Singh (deceased), Ram Phal, Hoshiar Singh (PW3), Sanjay @ Nanha, Dilbagh Singh and Subhash had initially trespassed into the shop of complainant Ranbir Singh and had beaten him there and thereafter had dragged him outside his shop, where he was beaten up with iron rods, dandas and lathies and when complainant Jagbir Singh Page No. 23 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
tried to intervene, he was similarly beaten up. In the said case in his testimony complainant Ranbir Singh has claimed that all the 8 assailants together armed with dandas, lathis and rods entered his shop and accused Krishan gave campa cola bottle blow on his head and then they dragged him outside the shop and gave beatings (outside the shop) with aforesaid weapons and on hearing the noise, his mother who had come to serve tea to him, came to his rescue (However, in this case he has improved his testimony by saying that Krishan gave a blow of iron rod also on his head). Further in her testimony in cross case, Smt. Satwanti, mother of both complainants, claims to have witnessed the incident from the very start, thus contradicting the version of complainant Ranbir Singh. Further as per the testimony of Smt. Satwanti in cross case, initially only accused Dariyao Singh, Puran Mal and Krishan came to Ranbir's Shop, where accused Krishan gave campa cola bottle blow on the head of complainant Ranbir and thereafter accused Ramphal, Sanjay and Dilbagh reached the spot and then accused Subhash reached the spot and thereafter accused Hoshiyar reached there. This witness again has contradicted complainant Ranbir Singh who had deposed that all the 8 assailants Page No. 24 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
entered his shop together. Further complainant Jagbir who has claimed that he reached the spot on hearing noise of 'BachaoBachao', but has named only 7 of the alleged assailants and has not named the alleged 8th assailant Subhash whereas the case of the complainants (herein) in the cross Sessions case, as per the suggestion given to prosecution witnesses and as per their stand in their statements u/s.313 CrPC, is that all the 8 assailants were involved in inflicting injuries to them. Further complainant Jagbir Singh has claimed in cross case that accused Krishan gave 'danda' blow on the head of complainant Ranbir but Ranbir Singh has not claimed so. Smt. Satwanti, mother of both the complainants herein has further contradicted complainats Jagbir Singh and Ranbir Singh by deposing in cross case that accused Hoshiyar hit complainants Ranbir with the lathi on his head. Accused Hoshiyar Singh has categorically deposed in cross case that he reached the spot after the incident had taken place. Further complainant Ranbir Singh has claimed in cross case that he got unconscious due to injuries, but as per prosecution witnesses he was removed from spot in conscious state and even his MLC does not corroborate his version on this point. Further Smt. Page No. 25 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other.
Satwanti, mother of both the complainants herein has claimed that accused Hoshiyar hit complainants Jagbir on his hands with a lathi whereas complainant Jagbir has not claimed so. In her cross examination she has voluntarily stated that Jagbir was not present at the spot, thus contradicting her earlier version. Further Bhoop Singh, father of both the complainants herein has claimed in cross case that both his sons became unconscious, although not claimed so by complainant Jagbir.
30. The injuries claimed by the complainants do not corroborate with their medical evidence. Had accused side consisting of 8 persons beaten both the complainants severely with dandas, lathis and iron rods as claimed by them, they would have suffered much grave injuries, then seen in their MLCs, which is not the case herein. Rather a suggestion was given on behalf of the State in the cross case that the MLCs of both the complainants were manipulated with the help of wife of Jagbir Singh, who was working in police, to show in defence, since Daryao Singh had expired in the incident. It was also the claim of the prosecution in the cross case that this case was initiated after considerable lapse of time by the complainants and no such complaint in writing was given either to the police or to the concerned ld. MM immediately after the incident and Page No. 26 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. both the complainants even did not mention their version to the concerned ld. MM when they were produced in custody and hence the defence of both the complainants is not probable and tenable. Admittedly the first complaint as per PW4 HC Dayaram from office of Commissioner of Police in writing from the side of complainants made on their counter version was dated 29.4.2004, thereby meaning that no complaint for about 11 days in writing from the date of incident was made to police or its higher authorities. No explanation justifying the delay has been given by the complainants. Further the claim of complainant Ranbir in cross case that accused Puran Mal was drunk is not clearly corroborated by MLC (in cross case) of accused Puran Mal wherein only smell of alcohol is mentioned and no percentage of alcohol in his blood is mentioned. Also accused Puran Mal has given the explanation in cross case that he was having toothache and hence had used cotton dipped in alcohol on his teeth. Also from the smell of alcohol only, no adverse influence regarding culpability of accused Puran Mal can be drawn.
31. The complainants have tried to show that accused persons were the aggressors and they are the victims. However as discussed above they have not explained the injuries to Page No. 27 of 28.
SC No. 52/12. State Vs. Krishan Kumar & Other. accused Puran Mal, Krishan Kumar and deceased Dariyao Singh. Hence applying the ratio of aforesaid cases, either the evidence of the material prosecution witnesses regarding incident as claimed by them, is untrue or the injuries to accused persons and Dariyao Singh probabilise the plea taken by accused persons. Even otherwise the version of complainants does not inspire confidence considering the entire material on record of this case as well as cross case. They do not appear to be truthful and their testimony is not trustworthy. Thus, the prosecution has not been able to prove its case beyond reasonable doubt against accused persons.
32. Hence in view of the aforesaid discussions, all the accused persons namely Krishan Kumar, Puran Mal, Ram Phal, Hoshiar Singh, Sanjay @ Nanha, Dilbagh Singh and Subhash are acquitted for the offences u/s 149 IPC, u/s 452 r/w/s 149 IPC, u/s 341 r/w/s 149 IPC and u/s 308 r/w/s 149 IPC. Announced in the open Court on 19.12.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 28 of 28.