Delhi District Court
State vs . Suresh @ Sethi Etc. Page : 1 Of 13 on 3 April, 2018
IN THE COURT OF SH. DILBAG SINGH PUNIA
DISTRICT & SESSIONS JUDGE, NORTH DISTRICT,
ROHINI, DELHI
SC No. 146/17
FIR No. 310/13
PS : Shahbad Dairy
U/s. 323/308/34 IPC
State
Versus
1.Suresh @ Sethi S/o. Late Sh. Raj Kumar R/o. C17/9, Shahbad Dairy, Delhi.
2. Govind S/o. Late Sh. Rajpal R/o. C17/39, Shahbad Dairy, Delhi.
3. Ajay S/o. Late Sh. Satte R/o. C11/27, Shahbad Dairy, Delhi.
Date of institution of case : 16.03.2017
Date of final arguments : 03.04.2018
Date of Judgment : 03.04.2018
JUDGMENT :
1. Case of the prosecution as disclosed from the report under section 173 Cr.P.C. is that pursuant to PCR call and DD No. 56B dated State vs. Suresh @ Sethi etc. Page : 1 of 13 SC No. 310/13, PS : Shahbad Dairy 21.05.13 concerning quarrel ASI Rajender Singh along with Ct. Pankaj reached at Shahbad Dairy Bus Stand where it was revealed that the injured had been removed to BSA Hospital by the PCR staff. No eye witness was found on the spot. Thereafter, ASI Rajender along with Ct. Pankaj reached BSA Hospital where MLCs of injured namely Arvind S/o. Choturam and Manoj S/o. Sh. Dilbagh with the alleged history of physical assault were collected. Injured Arvind was not found in the hospital and injured Manoj was found unfit for statement. No eye witness of the incident was found in the hospital also. IO ASI Rajender kept the call pending investigation and on 01.06.13, injured Arvind came in the police station and got his statement recorded. Injured/complainant Arvind interalia stated that he is conductor on RTV and on 21.05.13 they were going on their RTV bearing no. DL 1 VA 6699 to Rithala Metro Station after picking up passengers from Bawana. He stated further that three boys who had boarded in the RTV which was being driven by Manoj from Bawana and had to go to Shahbad Dairy were doing mischievous acts with each other and calling each other as Sethi, Govinda and Ajay. He has further stated that when their vehicle reached near Prahladpur Wine shop, these boys told that they have to bring beer from wine shop and asked the complainant and Manoj to stop the vehicle and keep it stationary till they come back. Driver Manoj told that it is RTV and they cannot stop it for such time and they dropped all three boys in front of wine shop. He has stated that this being the last trip, he and Manoj picked up the passengers for Shahbad Dairy only from Rithala and dropped all the passengers at Shahbad Dairy Bus Stand and parked the State vs. Suresh @ Sethi etc. Page : 2 of 13 SC No. 310/13, PS : Shahbad Dairy vehicle on side of the road. He has further stated that when he and Manoj were sitting at Bus Stand, at about 9.30 p.m. all three boys reached there and on seeing him and Manoj, they told that they will teach a lesson to them for disobeying of their command. He further stated that they started beating them and they ran towards their vehicle but fell down on the road. He has stated that all the three boys started attacking on his face and face of Manoj severely with bricks and they tried to kill him and Manoj as a result of which they received injuries. He further stated that he and Manoj were taken to BSA Hospital by PCR van and they were admitted in the hospital due to their injuries. He stated that after treatment he left for his village and came to the police station for recording his statement after returning from his village yesterday (31.05.13). He stated that during quarrel, his mobile was lost somewhere and he can identify all three boys if shown to him.
2. It is further case of the prosecution that initially the FIR was registered u/s. 308/34 IPC and investigation was conducted by ASI Rajender Singh. Site plan was prepared on the instance of the complainant. At the instance of complainant, accused Suresh @ Sethi and Govind were arrested. Accused persons made the disclosure statements. During further investigation, opinion about the nature of injuries on the MLCs of both injured were taken wherein the injury of complainant Arvind was opined as simple whereas injury caused to Manoj was opined as grevious. Accordingly section 323 IPC was added in the present case and in the meantime, accused Ajay was granted bail.
State vs. Suresh @ Sethi etc. Page : 3 of 13 SC No. 310/13, PS : Shahbad Dairy
3. Further investigation of the case was entrusted to SI Surender Kumar who formally arrested accused Ajay. After completion of investigation, charge sheet for offences u/s 323/308/34 IPC was filed against accused persons in the court of Ld. M.M. who after complying with the provisions u/s. 207 Cr.P.C. committed the case to this court.
4. On 06.04.2017, after hearing the arguments charge for the offence u/s. 308/34 IPC against accused persons was framed. They pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined two witnesses namely PW1 Arvind and PW2 Manoj.
6. PW1 Arvind deposed that he does not remember date and month but year was 2013 and on the day of incident, he was working as conductor on RTV bearing no. 6699 and Manoj was the driver on the RTV. He further deposed that they had left from Bawana after taking passengers in RTV and were going to Rithala Metro Station. He deposed that three persons had boarded their RTV from Bawana for Shahbad Dairy, Delhi. He also deposed that when their RTV reached at Village Prahladpur, said three persons stated that they had to purchase liquor from Wine Shop and they asked him to keep stopped the RTV till they return after purchasing the liquor. He deposed that he replied that the time of each round of RTV is fixed and it cannot be stopped for such time and all three persons deboarded there. He further deposed that RTV State vs. Suresh @ Sethi etc. Page : 4 of 13 SC No. 310/13, PS : Shahbad Dairy went to Rithala Metro Station and deboarded the passengers there. He further deposed that they again took passengers from Rithala Metro Station for last round till Shahbad Dairy and reached Shahbad Dairy and all the passengers deboarded the bus. PW1 deposed that he and Driver Manoj were sitting in the RTV at Shahbad Dairy. He deposed that in the meanwhile, ten to fifteen persons came inside the RTV and started beating him and driver Manoj. He deposed that they were having bricks, saria, danda etc. and they had beaten them (PW1 and driver) with Saria, danda and bricks etc. He further deposed that he sustained injuries on his left eye and head and he became unconscious. PW1 deposed that he regained his consciousness and found himself in the Ambedkar Hospital. He deposed that he had undergone medical treatment at Ambedkar Hospital and his statement Ex.PW1/A was recorded by the police in the police station at Prahladpur after two three days of incident. He deposed that thereafter, he went to his village and no other proceedings were conducted in his presence. PW1 deposed further that he had seen the entire court room but none of the persons who had beaten them on that day was present in the court (witness failed to identify the accused persons present in the court).
7. Since the witness was resiling from his statement given to the police, request was made by ld. Addl. PP to declare him hostile and his request was allowed. During crossexamination, PW1 deposed that he cannot reply to the suggestion if the incident took place on 21.05.13. He deposed that three persons who boarded from Bawana were doing State vs. Suresh @ Sethi etc. Page : 5 of 13 SC No. 310/13, PS : Shahbad Dairy mischievous acts and calling themselves as Sethi, Govinda and Ajay. He further deposed that he along with driver Manoj were sitting at Shahbad Dairy bus stand after the parking the RTV on the side of the road. He admitted that above said three persons who boarded from Bawana came at the stand of Shahbad Dairy and stated that these are driver and conductor who did not stop the RTV on their saying and they stated "Saalo Ko Batate Hai Gaadi Kaise Rokte Hai". PW1 volunteered that many other persons had come along with them at the bus stand. He deposed that on 01.06.13 he visited police station Shahbad Dairy and on that day his statement was recorded by the police. He deposed that he also told to the police that his mobile phone had got missing in that quarrel. He deposed that he had told to police that he can identify the said three persons who had beaten them on that day. He denied that on 01.06.13 he along with IO visited the spot i.e. Bus Stand, Shahbad Dairy and on his instance IO prepared the site plan of the spot. He further denied that on that day at about 10.45 a.m. he along with IO and constable reached at Murga Market Road, Shahbad Dairy and there he identified two persons who were standing in the corner as the persons who had beaten them on 21.05.13. He denied that said two persons were apprehended by the police in his presence and their names were disclosed as Suresh and Govind. He denied that Suresh and Govind were arrested in his presence. He identified his signatures on arrest memo of Suresh and Govind Mark A and Mark B. State vs. Suresh @ Sethi etc. Page : 6 of 13 SC No. 310/13, PS : Shahbad Dairy
8. During further crossexamination, statement Mark X from portion A to A1 was read over to him but he denied having given such statement to police. Attention of PW1 was specifically drawn towards accused persons and he deposed that he has seen accused persons present in the court but he cannot identify them as he does not remember the faces of the persons who had beaten them on that day. He denied that he fully remember the faces of the persons who had beaten them on that day or that all the three persons present in the court had beaten them on 21.05.13 or that he is intentionally not identifying accused persons present in the court as he has been won over by them and he wants to save them from punishment. He deposed that arrest memo Mark A and Mark B were got signed from him in the police station. He denied that both arrest memos were signed by him at the spot at the time of arrest of both accused persons. He denied that he is not revealing entire true facts before the court as he wants to save accused persons. He was also confronted with his statement Mark X which he denied.
9. PW1 was also crossexamined by ld. Defence counsel who during cross deposed that on 21.05.13 when quarrel took place there were 30 to 35 persons at the spot. He further deposed that he cannot say as to who had beaten him out of those 30 to 35 persons.
10. PW2 Manoj who is the driver of the RTV deposed that on 21.05.13 he was driving RTV bearing no. 6699 and after dropping the passengers, he was going to Rithala Metro Station. He deposed that he does not know who was conductor on that day as he had come on duty on State vs. Suresh @ Sethi etc. Page : 7 of 13 SC No. 310/13, PS : Shahbad Dairy that day only. He deposed that some passengers in RTV vehicle asked him to stop the vehicle near liquor shop but he did not stop there and went to the destination of RTV as usual. He further deposed that on his return journey on RTV, when he stopped at Bus Stop before Thekha (liquor shop) and he got down from RTV and was sitting on the bus stand, he was attacked by some assailants and they had given him injuries by bricks and stones and he received injuries on his head (brain). PW2 further deposed that he does not identify those assailants and neither he can identify them even if shown to him. The attention of PW2 was also drawn towards accused persons present in the court specifically but witness submitted that he cannot identify and cannot tell whether persons present in the court were amongst assailants. He deposed that he cannot tell whether the conductor had received injuries or not.
11. As PW2 also resiled from his statement given to the police, he was declared hostile at the request of State. He was crossexamined by ld. PP and in his cross, he deposed that police had not recorded his statement. He denied that police had recorded his statement and he had stated that three boys had asked him to stop the RTV at the liquor shop and when he did not stop then on his return journey those three boys saw him and Arvind sitting in the bus stop and on seeing them they said that why he had not stopped the vehicle and stated to teach him a lesson and all the three boys started beating them. He denied that he had stated in statement Mark PW2/A that he can identify all the three boys who had assaulted him if shown to him. Attention of PW2 was also drawn towards State vs. Suresh @ Sethi etc. Page : 8 of 13 SC No. 310/13, PS : Shahbad Dairy accused present in the court and he has deposed that accused persons present in the court were not the persons who had assaulted him and his conductor. He denied that he has been won over by accused persons and that is why he is not identifying accused persons present in the court deliberately. He denied that he suppressed the fact that Arvind is his conductor and he also received injuries in the incident. He deposed that he and his conductor were removed by PCR officials to hospital and he remained for about 11/2 month in Braham Shakti Hospital. He denied that police had recorded his statement in the hospital on 21.04.14. He also denied that because he was threatened by accused persons he is deposing falsely.
12. Despite lengthy crossexamination by the State of PW1 and PW2, no incriminating evidence could come on record against accused persons.
13. Ld. defence counsel submitted that PW1 Arvind and PW2 Manoj are the only material public witnesses but they have turned hostile and have not supported the case of the prosecution. This submission of ld. defence counsel has been accepted as correct by ld. CPP.
14. Since PW1 and PW2 are the only material eye witnesses who have turned hostile and remaining witnesses are police and official witnesses; therefore, no useful purpose would have been served by examining remaining witnesses, therefore the prosecution evidence was State vs. Suresh @ Sethi etc. Page : 9 of 13 SC No. 310/13, PS : Shahbad Dairy closed vide separate order of the date.
15. As both the material public witnesses have not supported the case of the prosecution, recording of statement of accused persons u/s. 313 Cr.P.C. has been dispensed with.
16. Arguments were heard at Bar. Ld. defence counsel has submitted that prosecution has failed to establish its case. Ld. PP stated that both the witness have been won over by accused persons, hence they have not supported the case of the prosecution concerning identity aspect.
17. Ld. Defence counsel has submitted that PW1 Arvind and PW2 Manoj are the only material public witnesses but they have not supported the case of the prosecution concerning authorship of the crime by the accused persons. This submission of ld. Defence counsel has been accepted as correct by ld. PP.
18. I have perused the testimony of PW1 and PW2. PW1 although has supported the case of the prosecution on the sustaining of injuries by him and PW2 but they have not given convincing version with respect to the identity of the accused persons as authors of the crime. PW1 has deposed that when he and driver Manoj were sitting in the RTV at Shahbad Dairy, in the meantime, ten to fifteen persons came inside the RTV and started beating him and driver Manoj. PW1 deposed that he had viewed the entire court room but none of the persons who had beaten State vs. Suresh @ Sethi etc. Page : 10 of 13 SC No. 310/13, PS : Shahbad Dairy them on that day was present in the court. During crossexamination by ld. Public Prosecutor on identity aspect, he denied that on 01.06.13 at about 10.45 a.m. he along with IO and constable had reached at Murga Market Road, Shahbad Dairy and had identified two persons who were standing in the corner as the persons who had beaten them on 21.05.13. He denied that the said two persons were apprehended by the police in his presence and their names were disclosed as Suresh and Govind. He denied that Suresh and Govind were arrested in his presence. This witness was asked to identify the accused persons present in court. Despite specific pointing out by ld. PP, PW1 refused to identify accused persons as authors of the crime and deposed that he does not remember the faces of the persons who had beaten them on that day. He denied that he fully remembers the faces of the persons who had beaten them on that day or that all three persons present in the court had beaten them on 21.05.13 or that he is intentionally not identifying accused persons present in the court as he has been won over by them and wants to save them from punishment.
19. PW2 has also deposed on the similar lines of PW1 concerning identity aspect. He deposed in his examination in chief that he was attacked by some assailants and they had given him injuries by bricks and stones. He deposed that he can not identify those assailants. He further deposed that he cannot identify accused even if they are shown to him. Attention of PW2 was also drawn towards accused persons present in the court but he submitted that he cannot identify and cannot tell State vs. Suresh @ Sethi etc. Page : 11 of 13 SC No. 310/13, PS : Shahbad Dairy whether persons present in the court were the assailants. He further deposed that he cannot tell whether the conductor had received injuries or not.
20. As PW2 had resiled from his statement given to the police, he was declared hostile at the request of State. During crossexamination, he denied that all the three boys started beating them. He denied that he had stated in statement Mark PW2/A that he can identify all the three boys who had assaulted him if shown to him. Attention of PW2 was specifically drawn towards accused persons present in the court but he stated that they are not the persons who had assaulted him and his conductor. He denied that he has been won over by accused persons and that is why he is not identifying accused persons present in the court deliberately.
21. In view of the aforegoing discussion of the testimony of the only witnesses concerning identity, there is no hitch on the part of this court to conclude that prosecution has failed to establish the identity of accused persons. Hence, this court is left with no option except the option of acquitting the accused persons. Accused persons are acquitted of the offences u/s. 308/34 IPC by awarding them benefit of doubt.
State vs. Suresh @ Sethi etc. Page : 12 of 13 SC No. 310/13, PS : Shahbad Dairy
22. File be consigned to Record Room after due compliance of provisions of section 437A Cr.P.C.
Announced in the open court (DILBAG SINGH PUNIA)
today i.e. 03.04.2018 District & Sessions Judge (North)
Rohini Courts, Delhi
State vs. Suresh @ Sethi etc. Page : 13 of 13
SC No. 310/13, PS : Shahbad Dairy