Vinod Kumar v. State of Haryana & Anr.

Present : Mr. R.S. Mamli, Advocate for the petitioner. S.S. SARON, J. *** Crl. Misc. No. 40585 of 2008 For the reasons stated in the Criminal Misc. application which is supported by an affidavit of the counsel appearing for the petitioner, the delay of 90 days in filing the revision petition is condoned. Criminal Misc. stands allowed. Crl. R. No. 1774 of 2008 Heard learned counsel for the petitioner. The revision petition has been filed by the complainant-petitioner Vinod Kumar (PW-2) against the order dated 10.12.2007 passed by the learned Additional Chief Judicial Magistrate, Kurukshetra whereby the respondent No.2- Kamlesh alias Kammo wife of Surinder Kumar has been acquitted of the offences punishable under Sections 323, 504 and 506 of the Indian Penal Code (“IPC” – for short). Crl. Misc. No. 40585 of 2008 and Crl. R. No. 1774 of 2008 2 Case FIR No.225 dated 20.7.1999 was registered at Police Station Shahabad for the offences under Sections 323, 504 and 506 IPC on the complaint of Vinod Kumar (petitioner), which complaint was forwarded by the learned Judicial Magistrate under Section 156 (3) of the Code of Criminal Procedure (“Cr.P.C.” – for short). The complainant-petitioner Vinod Kumar (PW-2) has inter alia alleged that the accused (respondent No.2) was habitual of filing false cases against him and his family so as to pressurize him to withdraw the civil suit regarding protection and defamation that he had filed. It is inter alia alleged that on 18.6.1999 at about 8.00 a.m., the accused Kamlesh @ Kammo (respondent No.2) was armed with an iron ‘patti’ and she started abusing the complainant Vinod Kumar (PW-2) when he was entering his house. She hit him on his right wrist with an iron ‘patti’. After the assault, the brother-in-law of the complainant namely Subhash Chand (PW-3) and one Rajesh Sahni came at the spot. They rescued him from the accused. The complainant went to the Civil Hospital for treatment. Subash Chand (PW-3) in his deposition in Court stated that on

18.6.1999 i.e. on the date of the incident, he was present at the house of Vinod Kumar complainant (PW-2) when he (Vinod Kumar complainant) had gone to inquire about the results of his matriculation examination. When he returned, Kamlesh @ Kammo (respondent No.2) attacked him with an iron ‘patti’ about which he had cautioned him. The ‘patti’ hit the right arm of Vinod Kumar (PW-2). The accused-respondent No.2 Kamlesh @ Kammo had a dispute with the brother- in-law of the complainant. She had threatened him with death. Dr. Sunita Kumari (PW-5) Medico-Legally examined Vinod Kumar – complainant (PW-2) and proved the MLR report (Ex.PW5/A). She observed swelling on medial side of right wrist (generalized) tenderness was present. Semi Crl. Misc. No. 40585 of 2008 and Crl. R. No. 1774 of 2008 3 circular abrasion 5cm x 0.6 cm. was there, which was linear and slightly curved on medial side of right wrist towards the side of little finger.

Clotted blood was present over this wound. Wound was reddish in colour. Movements of the right wrist joint were normal, slightly tender. Patient was advised x-ray of wrist joint AP and lateral views. Ex. PW5/A was the carbon copy of MLR, which bears her signatures. Ram Chand ASI (PW-4) on 20.07.1999 was posted as Incharge Police Post Shahabad when he received the case file for investigation. He reached the spot and site plan (Ex.PW4/A) was prepared. Statements of witnesses under Section 161 Cr.P.C. were recorded on 30.7.1999. The learned Additional Chief Judicial Magistrate, Kurukshetra vide her impugned order has acquitted respondent No.2 Kamlesh @ Kammo. Learned counsel for the petitioner has submitted that the prosecution has proved its case against the respondent in all material aspects. The eye witness account of Subhash (PW-3), it is submitted, is established by the medical evidence that has come on record in the deposition of Dr.

Sunita Kumari (PW-5). She has proved the Medico Legal Report (Ex.PW5/A). Therefore, it is submitted that the order acquitting respondent No.2 is not sustainable and is liable to be set aside. After giving my thoughtful consideration to the matter, it may be noticed that the learned Additional Chief Judicial Magistrate, Kurukshetra has recorded sound reasons for acquitting respondent No.2 Kamlesh @ Kammo. It was noticed that there was a delay of 12 days in the registration of FIR. Besides, it was a counter-blast to the complaint filed by the accused (respondent No.2) against the complainant Vinod Kumar (PW-2) (petitioner) and his family members. It was also noticed that Subash Chand (PW-3) was a close relation of the complainant. The complainant Vinod Kumar (PW-2) during his examination as a wintess had Crl. Misc. No. 40585 of 2008 and Crl. R. No. 1774 of 2008 4 accepted that respondent No.2 Kamlesh @ Kammo had filed a criminal case against them in which he, his wife, brother and mother were accused.

It is in the said background that the evidence of the complainant Vinod Kumar (PW-2) and his brother-in-law Subash (PW-3) was evaluated. The occurrence in the present case is alleged to have taken place on 18.6.1999 but it was not before 1.7.1999 that the complainant moved the complaint in the Court of learned Judicial Magistrate Ist Class, Kurukshetra. In this manner, there was a delay of almost 12 days in reporting the matter which had not been satisfactorily explained. The delay it was observed is often the result of roping in innocent persons after much thought, consultation and deliberation. It was also noticed that the complainant though had mentioned in the complaint that the matter was reported to the Police vide Report No.4 dated 24.6.1999 but no action was taken. It was observed even if the said version was taken to be true, then also the complainant (PW2) had not been able to explain a delay of six days in reporting the matter to the Police which was a serious infirmity in the prosecution case.

Besides, the complainant Vinod Kumar (PW-2) and his brother-in-law Subash Chand (PW-3) were the only eye-witnesses in the case. The other witness namely Rajesh Kumar who was a neighbour of the complainant was given up as unnecessary. It was observed that Rajesh Kumar was an independent witness of the locality and his version was important to bring to light the nature of the controversy. Non-examination of Rajesh Kumar was held to make the prosecution case doubtful. The deposition of Dr. Sunita Kumari (PW-5) who medico-legally examined Vinod Kumar –complainant (PW-2) injured on 18.6.1999 was also considered. In cross-examination, the said witness admitted that possibility could not be ruled out that if the patient fell on a hard surface, he could sustain the injury. The observations of the Doctor it was held could not be lightly brushed aside in Crl. Misc. No. 40585 of 2008 and Crl. R. No. 1774 of 2008 5 view of the other circumstances of the case.

The nature of injury i.e. swelling on the wrist with the small abrasion 5 cm x 0.6 cm, it was observed that such injury could easily be sustained by a fall or be even self-inflicted. It was also observed that it did not appeal to reason that a lady residing in the neighbourhood of the complainant who was a well built 44 years of age would have the courage to inflict blows on the complainant Vinod Kumar (PW-2) and that too without any provocation, in broad day light at 8.00 a.m. The case of the complainant is based only on his deposition and that of his brother-in-law Suhash Chand (PW-3). It is not as if the complainant has to examine himself and his relation and get a finding of guilt recorded by a Court against an accused and that too by late lodging of a complaint and un-supporting medical evidence; besides, when earlier litigation was pending between the parties. Therefore, the reasons and conclusions reached at by the learned Additional Chief Judicial Magistrate, Kurukshetra are just and plausible and are not liable for any interference by this Court in exercise of its revisional jurisdiction.

Keeping in view the nature of pending litigation that was there between the parties in which the complainant (petitioner) was an accused and also the other circumstances, it can safely be said that the prosecution has been unable to bring home the guilt of respondent No.2 beyond shadow of reasonable doubt. For the foregoing reasons, there is no merit in the criminal revision petition and the same is accordingly dismissed. January 06, 2009 (S.S. SARON) JUDGE