1 IN THE COURT OF SMT. BIMLA KUMARI ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI S.C. No. 07/11 ID No. 02401R1569192008 [ENTITY] Vs. 1 [ENTITY] S/o Tara [ENTITY] Misra R/o 173, Gali No. 4, Jharoda Part-III, Sangam Vihar, Burari, Delhi. 2 [ENTITY] S/o Ram Chander Jha R/o 173, Gali No. 4, Jharoda Part-III, Sangam Vihar, Burari, Delhi. FIR No. 399/08 P.S. Timarpur U/S 308/34 [ACT] Date of Institution: 20.11.09 Date of reserving for judgment: 26.02.11 Date of pronouncement: 28.02.11 [CASE NUMBER] Page 1/10 2 JUDGMENT
In the present case, a charge has been framed against accused [ENTITY] and [ENTITY] in respect of offence U/[SECTION]/[SECTION] [ACT] on 31.03.10 by Ld. Predecessor. The allegation in the charge is that on 12.08.08 at about 8:30 AM near house No. 172, Gali No. 4, Jharoda-III, Delhi, they in furtherance of their common intention caused simple injuries on th person of Sh. [ENTITY] with such intention or knowledge and under such circumstances that, if by that act, they had caused the death of Sh. [ENTITY], they would have been guilty of culpable homicide, not amounting to murder.
2 Both accused pleaded not guilty to said charge and claimed trial.
3 To prove its case, prosecution has examined six witnesses. They are [ENTITY] (PW-1), [ENTITY]), [ENTITY]), [ENTITY] (PW-4), ASI [ENTITY]) and SI [ENTITY]).
4 [ENTITY]ments of both accused U/[SECTION] [ACT] have been recorded, wherein they have denied the allegations of prosecution. They have submitted that they are innocent. They have been falsely implicated in this case.
5 I have heard arguments from ld. legal aid counsel Sh. [ENTITY] for both accused and ld. Addl. PP for [ENTITY]. I have also perused the case file. Ld. counsel for accused has prayed for acquittal of both accused by submitting that material witnesses in this case have not supported the prosecution case and turned hostile. There is no material on record to convict the accused persons. 6 In this case, out of six witnesses, PW-3 Sh. [ENTITY] is the star witness being the complainant. He has deposed that he has been knowing accused [ENTITY], present in court, for the last four- five years. In July, 2008 he had purchased one plot of 25 yards for Rs. 3,17,500/- from accused [ENTITY]. He had paid full and final payment to accused [ENTITY] on 22.07.08. Accused [ENTITY] executed GPA, Agreement to Sale and Purchase, an Affidavit, Receipt of Rs. 3,17,500/- and Will. The photocopies of GPA, Agreement to Sale, Affidavit, Receipt and Will are Ex. PW3/A to Ex. PW3/E respectively. Accused did not hand over to him the chain of documents vide which he received the possession of the plot. The plot was constructed upto one floor and there was a tin shed on the first floor. The right side wall of the said plot was not handed over to him [PW-3]. Accused [ENTITY] owned adjacent plot of the said plot and he claimed his [PW-3's] plot's fourth wall as his own. 7 On 12.08.08 he went to the house of accused [ENTITY] and demanded the chain of documents of his plot. A hot talk took place between him and [ENTITY]. Some public persons also arrived at the spot. Somebody pushed him [PW-3] in the crowd. He sustained injury on his head. One [ENTITY], who resides in his gali, took him to hospital, where he was medically examined. He was discharged from the hospital and came to his house. Police came to his house but he was not available. Thereafter, on 13.08.08 he [PW- 3] went to police post Jharoda, where police recorded his statement Ex. PW3/A. He did not tell the police the name of assailants as he did not know, who pushed him in the crowd. Police obtained his signatures on some blank and written papers. He cannot say as to who caused injury to him nor he can identify those persons. Further, he does not want to say anything more.
8 In cross-examination by ld. Addl. PP, PW-3 Sh. [ENTITY] has denied that he stated to police in statement Ex. PW3/A that accused [ENTITY] quarrelled with him. He has denied that accused [ENTITY] and his relative accused [ENTITY] picked a brick and hit upon his head, due to which he sustained injury on his head and blood oozed out from his head. He has denied that he informed the police on 100 number. He has further denied that he had stated to police in his statement Ex. PW3/A that accused [ENTITY] and his relative [ENTITY] caused injury on his head.
9 He has further denied that he had stated to police in his statement Ex. PW3/B dated 25.09.09 that his clothes were smeared with blood, due to bleeding from his head and he had washed those clothes and could not handover the same to police on 13.08.09. 10 He has also denied that on 19.08.09 he identified accused [ENTITY] in the gallery of the court at [ENTITY], while he was being taken by police officials to court and police recorded his statement in this respect.
11 He has denied that on 05.10.08 accused [ENTITY] was arrested from a Paan khokha near Jharoda Chowki vide arrest memo Ex. PW2/A or that his personal search was conducted vide memo Ex. PW2/B and that his disclosure statement Ex. PW2/C was recorded. He has denied that these documents were prepared in his presence. He has stated that police obtained his signatures on some printed and written papers and these documents are those of them. He has denied that he had named accused persons in his complaint, but today he is deposing falsely to save the accused persons.
12 Accused persons have been shown to PW-3 but he [PW- 3] stated that these persons did not cause injury to him. He has denied that he is not identifying accused persons intentionally and deliberately. He has denied that there was no crowd at the spot at the time of incident. He has denied that he received injury at the hands of accused persons and not from the persons from crowd. He has denied that police did not obtain his signatures on blank as well as printed papers. He has denied that accused [ENTITY] was arrested in his presence at his instance. He has denied that he has entered into a compromise with the accused persons and as such he is deposing falsely. He has denied that police never obtained his signature on blank /printed papers. He has denied that when he demanded the chain of documents of his plot from accused [ENTITY], accused [ENTITY] and his relative accused [ENTITY] attacked him with bricks and caused injury on his head.
13 An opportunity to cross-examine the witness has been given to ld. legal aid Counsel for accused, but he did not avail of that opportunity.
14 Another material witness is PW-4 [ENTITY]. He is the eye witness of the incident. He has deposed that he knows accused [ENTITY] and [ENTITY] personally. He was residing in the house of Sh. [ENTITY] and accused [ENTITY] and his son-in-law, [ENTITY] were also residing in the same gali. On 12.08.08 at about 8:30 AM/9:00 AM, he was present in his house. He heard a noise of quarrel. He came out from his house and saw a crowd. He saw that there were injuries on the head of [ENTITY]. The blood was oozing out from the head of [ENTITY]. He immediately took the injured [ENTITY] to hospital. He was treated in the Trauma Center. The family of [ENTITY] was informed and thereafter, he came back to his house. Police met him on the next day and asked him about the incident. He told the same facts to police, which he has deposed in the court. Further, he does not know, who has caused injuries to [ENTITY]. 15 In cross-examination by ld. Addl. PP, PW-4 [ENTITY] has denied that he stated to police in statement Ex. PW4/A that [ENTITY] asked for the chain of documents from accused [ENTITY], who refused and thereafter, a quarrel took place between accused [ENTITY] and [ENTITY]. He has also denied that accused [ENTITY] started beating [ENTITY] and in the meantime, son- in-law Shri [ENTITY] came there or that Shri [ENTITY] picked up brick and pelted upon [ENTITY] and that accused [ENTITY] also picked up a brick and hit upon [ENTITY], due to which [ENTITY] sustained injury on his head and blood oozed out from his head.
16 Both accused have been shown to PW-4 [ENTITY], but he [PW-4] has stated that accused persons did not cause injuries to [ENTITY]. He has denied that he is not identifying accused persons deliberately. He has denied that he was very much present at the spot and in his presence, both accused persons caused injury upon [ENTITY]. He has denied that family of accused persons and accused themselves have pressurised him not to depose against them or to identify them in the court. He has denied that he is deposing falsely to save accused person being their neighbour.
17 An opportunity to cross-examine this witness has also been given to ld. legal aid Counsel for accused, but he did not avail of that opportunity 18 Prosecution has to prove its case beyond reasonable doubt.
In Dilli Mukhand Singh V. [ENTITY] of Madhya Pardesh, 1971 Crl. L.J 1632 it was held that guilt of accused must be proved beyond reasonable doubt. Suspicion, howsoever strong, cannot take place of proof.
In Mousam Singha Ray & Ors. V. [ENTITY] of West Bengal, 2003(3) JCC 1358 it was held by Hon'ble Supreme Court that the burden of proof in a criminal trial never shifts, and it is always the burden of prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. The law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone.
19 In the present case, PW-3 [ENTITY] is the star witness of this case being the complainant. He has not supported the prosecution case either in examination-in-chief or in cross-examination by ld. Addl. PP. He has categorically deposed in examination-in-chief that he received injury on his head as somebody from the crowd pushed him. He did not tell the police the names of assailants. Police obtained his signature on some blank and written papers. He cannot say as to who caused injury to him nor he can identify those persons.
20 In cross-examination by Ld. Addl. PP, he has denied that accused [ENTITY] quarrelled with him. He has further denied that accused [ENTITY] and his relative accused [ENTITY] picked a brick and hit upon his head due to which he sustained injury on his head and blood oozed out from his head. He has denied that on 19.08.09 he identified accused [ENTITY] in [ENTITY] Courts. He has further denied that he intentionally and deliberately did not identify the accused persons and deposed falsely to save them. He has denied that when he demanded the documents of his plot from accused [ENTITY], accused [ENTITY] and his relative accused [ENTITY] attacked him with bricks and caused injury on his head.
21 The other material witness PW-4 [ENTITY] has also not supported the prosecution story either in examination-in-chief and cross-examination by ld. Addl. PP. In his examination-in-chief PW-4 has deposed that on the date of incident he was present in his house. He came out from the house after hearing the noise and found that [ENTITY] was having injury on his head and blood was oozing out from his head. In other words, PW-4 did not see as to who caused injury to PW [ENTITY]. In cross-examination by ld. Addl. PP, he has denied that he stated to police in his statement Ex. PW4/A that a quarrel took place between [ENTITY] and accused, when [ENTITY] asked documents from accused [ENTITY] or that accused picked up bricks and hit the bricks upon [ENTITY] due to which he received injury on his head. He has further denied that he was present at the spot and in his presence, accused caused injury to [ENTITY].
22 Since the material witnesses namely, PW-3 [ENTITY] and PW-4 [ENTITY] have not supported the prosecution story, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons. Accordingly, accused [ENTITY] and [ENTITY] are acquitted of offence, they were charged with.
23 In this case, accused [ENTITY] and [ENTITY] are on bail. Their personal bonds and surety bonds are cancelled. Their sureties are discharged. File be consigned to Record Room.
Announced in the open court today on 28.02.11 (Smt. [ENTITY]) Additional Sessions Judge(North) [ENTITY] Courts, Delhi.