U/s: 326/324/323/34 IPC – False Complaint, Contradictory testimony; Acquitted

IN THE COURT OF SHRI RAKESH KUMAR III,CHIEF
METROPOLITAN MAGISTRATE NORTH EAST, KARKARDOOMA
COURTS, DELHI

State Vs Narender @ Pran etc.
FIR No. 333/01
U/s: 326/324/323/34 IPC
PS Gokalpuri
Date of Institution of case :20.06.2002
Date on which judgment is reserved :12.08.2014
Date on which judgment is delivered :28.08.2014

Unique ID No. 02402R0050702002

JUDGMENT
a) Sl. No. of the case : 304/14
b) Date of commission of offence : 12.09.2001
c) Name of complainant : Sh. Madan Verma
d) Name of accused, his parentage :
1. Narendra @ Pran S/o and address Bishamber R/o: H. No.59, Ward No. 8, Indira Puri Extn., Loni, Ghaziabad, U.P.
2 Dalip Kataria @ Raju @ Sonu Kataria S/o Sahab Singh R/o: gali no. 5, Phase 4, Shiv Vihar, Delhi
e) Offence complained of or proved :U/S:326/341/324/34 IPC
f) Plea of the accused :Pleaded Not Guilty
g) Final Order :Acquitted
h) Date of such order :28.08.2014
i) Brief reasons for the just decision of the case:

In brief the prosecution case against the accused persons are that on 12.09.2001 at about 10 pm at gali no. 11, Near Shiv Sharma School, Shiv Vihar accused persons Narender @ Pran and Dalip Kataria @ Raju voluntarily caused grievous hurt by sharp instrument ustra and knife on the person of complainant Madan Verma and wrongfully restrained him by obstructing him from proceeding in any direction in which he had right to proceed and caused simple hurt by sharp instrument ustra/knife on the person of Sanjay and as such had committed the offence under section 326/341/324/34 IPC After usual investigation charge sheet was filed. 2 Copy of charge sheet was supplied to the accused free of costs and Ld. Predecessor of this court after considering the material available on record framed the charge for the offence under section 326/341/324/34 IPC on 03.09.2003 to which accused persons pleaded not guilty and claimed trial.

3. In order to substantiate the charge prosecution has examined in as much as.10 witnesses.

PW1 Dr. T. Gupta, CMO GTB Hospital had examined the patient Madan S/o Satpal vide MLC NO. A 3848 and proved the MLC Ex.PW1/A.

PW2 Madan Verma/complainant has deposed that he could not recollect the exact date but the incident took place on 13.09.2001 when he was coming along with his friend at about 8.30 pm to home from Gandhi Nagar. When they reached at Lok Vihar near the house of Satvir, where accused persons Sonu Kataria and Narender met them and they first asked him to give Rs. 500/­ . When he reused they took out a ustra from the pocket and hit him on his face and also hit his friend Sanjay Saxena with a knife. On raising alarm both the accused ran away from the spot. Thereafter police reached at the spot and took them to GTB Hospital. Police recoded his statement Ex. PW2/A . Further he deposed that he knew the accused persons prior to this incident.

PW3 ASI Braham Singh had deposed that on 13.09.2001, he was posted at PS Gokalpuri as duty officer and had proved the copy of FIR Ex. PW3/A.

PW4 Ct. Bhupender had deposed that on 12.09.2001, he was posted at PS Gokalpuri . At about 10.10 pm, on receipt of DD No. 22 he along with HC Naim reached at the spot. They were informed that the injured were removed to the hospital by PCR. Thereafter they went to the hospital and obtained the MLC in the name of Madan and Sanjay and their statements were recorded and endorsement Ex. PW4/A was handed over to him for the registration of the case. Copy of FIR is Ex. PW3/A. Copy of DD no. 22 is Mark PW4/B.

PW5 Sanjay had deposed that he did not recollect the date, however the month might be 8/9 however, it was two years back, he along with Madan were returning from their job. When they reached near Indira Puri, Sonu Kataria and Pran met them and started abusing and beating him. He was given knife blow near his left eye by one of the accused but he did not recollect as to who gave him knife blow. Madan had also received a ustra blow on his face. Both of them robbed Rs. 2,000/­ from him and ran away. Blood started oozing out. He was not owing any money from the accused persons. His parents came at the spot and they took them to the hospital.

PW6 Dr. B. K. Jain had proved the opinion on MLC bearing No. B 3722/01 of injured. Further he disclosed that the final opinion regarding nature of injury of injured is given by Dr. Amit Bhandari as simple dtd.9.10.2001. He had proved the MLC Ex. PW6/A.

PW7 Dr. R. Dayal , CMO GTB Hospital had deposed that as per the directions of MS GTB Hospital he had proved the MLC bearing no. B 3722/01 as Ex. PW6/A and states that as per MLC, injury no. 1 was caused by Sharp edged weapon and injury No. 2 and 3 were caused by blunt edged weapon.

PW8 ASI Mohd. Naim had deposed that on 12.09.2001, he was posted at PS Gokalpuri as HC. On that day, he was on emergency duty from 8 pm to 8 am. On receipt of DD no. 22A regarding quarrel at gali no. 11, near Shiv Shakti School, Shiv Vihar, Delhi he along with Ct. Bhupender reached at the spot where he came to know that injured had been shifted to GTB Hospital and no eye witness found present at the spot . Thereafter he along with Ct. Bhupender reached at the GTB Hospital and he obtained MLC of both the injured persons Madan and Sanjay Kumar and recorded statement of injured Madan Verma Ex. PW2/A. After perusal of the MLC and statement of complainant, he found offence under section 323/324/34 IPC is made out against the accused persons and thereafter he prepared tehrir Ex. PW8/A and handed over tehrir to Ct. Bhupender for registration of the FIR in PS Gokalpuri. Thereafter statement of injured Sanjay was recorded. Ct. Bhupender after registration of the FIR came back at GTB Hospital along with copy of FIR and original tehrir and handed over the same to him. They reached at the spot again. On the spot none was present. Thereafter they returned to PS . On 14.09.2001, he reached at GTB Hospital where he came to know that injured had been released from the hospital. Then he reached at the house of injured Madan and met with Madan and they came at the spot and at the instance of injured Madan he prepared the site plan Ex. PW8/B. After that he searched for the accused but accused could not traced out. On 5.10.2001, accused Narender @ Pran had surrendered himself before the court so he was interrogated in the present case and he made disclosure statement which is Ex. PW8/C and was arrested vide memo Ex. PW8/D and his personal search was conducted vide memo Ex. PW8/E. On 25.10.2001 accused Sonu @ Dilip Kataria was apprehended at the instance of Madan and he was arrested vide memo Ex. PW8/F and his personal search was conducted vide memo Ex. PW8/G. Disclosure statement of accused is recorded which is Ex. PW8/H. After obtaining the result, Section 326 IPC was added. Thereafter he recorded the statement of witness and after completion of investigation filed the Challan in the court.

PW9 Dr. Nain Singh had deposed that on 8.10.2001, he was posted at GTB Hospital. He had given his opinion on MLC bearing No. A 3848 of injured Madan as Ex. PW1/A.

PW10 Dr. Vinita Rathi, Radiologist had deposed that on 13.09.2001, she was posted at GTB Hospital and on that day, she had examined the X ray report of injured Sanjay vide X ray No. 3243 dated 12.09.2001 and the said report is Ex. PW10/A.

4 Statement of accused Dalip Kataria and accused Narendra recorded under section 313 Cr.P.C and all the incriminating evidence appearing on record put to the accused persons to which they denied and stated that they were innocent and had been falsely implicated in the said case. Accused persons had refused to lead any evidence in their defence. 5 I have heard the arguments of Ld. APP and Ld .counsel for the accused persons.

6 Prior to proceed further, here it is not out of mention to place here that present case has been registered on the basis of allegations made by the complainant Madan Verma who has been examined in the present case as PW2 wherein the alleged deposed that offence has been committed by the accused persons while he was with Shri Sanjay who has been examined in the present case as PW5. PW2 has been examined in the present case on 18.11.2003, he has been cross examined on 15.10.2012 and PW5 Sanjay has been examined on 27.10.2004 but his examination in chief has been deferred at the request of Ld. APP on the ground that certain facts have come up on record during the testimony which confirmed the commission of offence exclusively triable by the Sessions Court, to this effect an application on behalf of Ld. APP filed on 24.2.2005 seeking committal of the present case, thereafter the case has been adjourned four times for reply and arguments but due to non production of the accused, the application could not be looked by the Ld. Predecessor and inadvertently on 15.10.2005 case adjourned for PE. At last on 24.02.2010, PE stands closed but on 20.3.2010 another application under section 311 Cr.P.C on behalf of the Ld. APP filed seeking permission for examination of other material witness Sanjay PW5 which had been allowed on the even date i.e. 20.03.2010 subject to availability of PW5. Vide order dated 20.04.2010PW5 was ordered to be get served through IO Mohd. Naim who has been examined in the present case as PW8. The summons to PW5 for 3.5.2010 received back with the report that he is missing since 15.4.2009 and an FIR No. 948/09 under section 364 IPC has already been registered in this regard in Ghaziabad and court observed that the witness cannot be examined being untraceable as such the testimony cannot be read in evidence or considered for that file may be sent to the sessions court for trial on points of incomplete testimony of PW5. Lastly after concluding the evidence, PE stands closed on 15.10.2012, thereafter statement of the accused was recorded on 18.4.2013 wherein the accused has shown his willingness to lead evidence in defence as such on 18.12.2013 an application was filed which had been allowed but despite several opportunities given till 27.5.2014 neither any witness in support of their defence nor accused examined himself. Accordingly, DE stands closed vide order dated 27.5.2014.

7. In the present case, the acquittal has been sought by the Ld. defence counsel on the ground that several contradictions have been come up on record in respect to the place of offence i.e. PW2 deposed in his examination in chief before the court that when they reached at Lok Vihar near the house of Satbir both accused had committed the alleged offence whereas in Tehrir or complaint which is Ex. PW2/A the place of occurrence has been mentioned near Shiv Sharma School, Shiv Vihar and PW5 in his examination in chief before the court stated the place of occurrence Indira Puri. The other material contradictions between the testimonies of PW2 and PW5 are contended that in the complaint of PW2 there is no as such mention in respect to Rs. 500/­ or Rs. 2,000/­ as deposed by PW5 alleged to be asked or even in the tehrir there is no as such in respect to the robbery of Rs. 2,000/­. Admittedly, the prosecution failed to establish that both PW2 and PW5 were injured by the accused persons either by Ustra or knife as alleged because no as such recovery of weapon has been done by the IO. Lastly, the IO of the case even did not bother to collect the blood stained clothes of the injured and PW2 in his testimony admitted that he had not given blood stained clothes to the police officers. It is further contended that since the accused has been implicated in the present case falsely and acquittal sought on the ground that the person who inflicted injury instead of going to the hospital, they preferred to go back to their house and in this regard, the contradictions between the testimony of PW2 and PW5 are the major one i.e. PW2 admitted that after the incident he went in his house then the police taken them to the hospital. On the other hand, PW5 has stated that at the spot parents took them to the hospital.

8. On the other hand, Ld. APP sought conviction on the ground that all of these are the minor contradictions and the testimonies of PWs has also been supported with the medical report and the MLC has been proved by the prosecution wherein the grievous injury has been established in respect to the complainant injured PW2 and simple injury to the Sanjay which is Ex. as PW6/A.

9. Since in the present case, there are two injured i.e. Madan Verma who has been examined as PW2 and Sanjay who has been examined as PW5 but his examination in chief cannot be considered in evidence because opportunity to cross examine has not been given to the accused and subsequently he has not been traceable. In the present case, I am of the considered view that various contradictions come up on record apart from the contradictions which is pointed out by the Ld. counsel for the accused mentioned above. The present case has been registered on DD entry no. 22A when DD entry was recorded on the basis of PCR call but PW8 IO deposed that when they reached to the place of occurrence/offence, no eye witness were found at the spot and they came to know that injured had been shifted to Guru Teg Bahadur Hospital but contradictory deposition has been made by PW2 himself that after commission of alleged offence, he went to his house from there he has been taken by the police officers to the hospital. In the present case, it is come up on record that both the injured were taken to the hospital by one HC Bhag Singh as per MLC Ex PW6/A but no investigation has been done in this regard how HC Bhag Singh has taken the accused persons to the hospital and there is no explanation on behalf of the IO and the prosecution that why HC Bhag Singh has not been cited as a witness. During the statement of the accused both the accused has pointed out that they have been falsely implicated in the present case because of enmity with the accused persons in as much as an FIR bearing no. 752/2001, PS Loni has been registered under section 324 /506 IPC in which the accused Dalip Kataria was injured/complainant with the allegations that injuries were caused by complainant Madan Lal Verma and Sanjay who are the material witnesses here as PW2 and PW5 and accused Narender also cited as a witness in that case i.e. why complainant Madan Lal Verma PW2 and Sanjay, PW5 lodged fake complaint and both accused has been falsely implicated in the instant case.

10. After taking into consideration the facts and circumstances and also the testimonies of PW2 and PW5, I am of the considered view that material contradictions come up on record especially keeping in view the fact that after getting injuries, no one preferred to go back to his house rather to approach to the hospital and the testimony of PW2 also come up under the shadow because the PW5 in his examination in chief stated that they have been taken by their parents whereas the MLC record Ex PW6/A tell the different story. Hence I am of the considered view that both the accused persons are acquitted. Bail bonds of the accused persons are cancelled and sureties are discharged.

File be consigned to record room.

ANNOUNCED IN OPEN COURT
Dated : 28.08.2014
RAKESH KUMAR III
CHIEF METROPOLITAN MAGISTRATE (NE)
KARKARDOOMA COURTS, DELHI

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