Delhi District Court
State vs Mohit Chawla on 4 January, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE, (CENTRAL); DELHI
SC No.20/10
FIR No. 508/2008
PS Patel Nagar
U/s 308/34 IPC
In the matter of:
State
Versus
1. Mohit Chawla,
S/o Sh. Dilip Chawla,
R/o G2/11, Sector 11, Rohini, Delhi.
2. Saurabh @ Monu, S/o Sh. Balbir Singh,
R/o G3/108, Sector 11, Rohini, Delhi.
3. Arvind Anchal, S/o Sh. Ashok Anchal,
R/o F2/158159, Sector 11, Rohini, Delhi. .......Accused
persons
Date of institution : 10.05.2010
Date of Judgment : 04.01.2013
FIR No. 508/08 1/13
J U D G M E N T
All the abovenamed three accused have been facing trial for offences U/s 308 read with Sec.34 IPC on the accusation that on 03.12.2008, at about 6 pm, on main Patel Road, under Shadipuar Metro Station, within the jurisdiction of PS Patel Nagar, they assaulted Arun Mishra and his brother Narender Mishra and caused injuries on their person. In this way, they are alleged to have committed offence of culpable homicide not amounting to murder.
2. In brief, it is case of the prosecution that on 03.12.2008, Arun Mishra (complainant) and his brother Narender Mishra were going towards Chawri Bazar, riding motorcycle no. DL 4SN D 3140. The motorcycle was being driven by Narender Mishra while his brother Arun was sitting on the pillion. At about 6 pm, they reached Patel Road. One Esteem car came from behind and hit their motorcycle. Narender Mishra stopped the motorcycle to see damage. In the meanwhile, Esteem car also stopped there. Many boys alighted from the car and started hurling abuses. One of the assailants took out a danda and inflicted injury on the head of Arun Mishra. As a result, Arun Mishra started bleeding.
Narender Mishra stepped ahead to save his brother. The aforesaid boys inflicted injuries on the person of the two brothers with danda, and by way of kick and fist blows. The two brothers fell down. Arun Mishra almost lost consciousness. All the assailants then ran away. Deepak from public apprised the complainant of registration number of the Esteem car i.e. FIR No. 508/08 2/13 DL 8CF 1807.
Information reached PS Patel Nagar at 7 pm that some one had robbed one person at Gate no. 4 at Shadipur Metro Station and then managed to escape. This information was sent to the police by PCR. Thereupon DD No. 34A was recorded.
SI Arjun Singh accompanied by Ct. Murli Singh reached the spot and found Arun Mishra and Narender Mishra present there. He prepared injury sheet of injured and sent them to DDU hospital in the company of Ct. Murli Singh for their medical examination. Both of them were medically examined by Dr. Khalid Ali Khan. But they did not make statement for registration of case.
On 06.12.2008, Arun Mishra contacted ASI Arjun Singh at PS Patel Nagar and made statement which led to registration of this case. ASI Rakesh Tyagi took up investigation of this case. On reaching the spot, ASI prepared rough site plan of the place of occurrence.
It is also case of prosecution that on 08.12.2008 Esteem car referred to above was seized by the police from the house of Arvind Anchal, accused in Sector11, Rohini, Delhi.
Mohit Chawla, accused surrendered before the police on 16.12.2008; Sourabh, accused surrendered on 09.02.2009 and then got recovered weapon of offence i.e. broken Danda from his house; Arvind, accused surrendered on 03.03.2009. On completion of investigation Challan was put in court. FIR No. 508/08 3/13
3. Prima facie case having been made out, Charge for an offence under Section 308 read with Section 34 IPC was framed against all the three accused on 12.08.2010. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence
4. In order to prove its case, prosecution has examined following 9 witnesses:
PW1, Arun Mishra Injured
PW2, Deepak Kumar an eye witness to the occurrence.
PW3, Narender Mishra Injured
PW4, HC Jai Chand to prove recording of FIR Ex.PW4/A
PW5, Dr. Y.N. Morya to prove MLCs Ex.PW5/A & Ex.PW5/D
PW6, Dr. Uday Kr. Singh to prove opinion of Dr. Aditi on
examination of Xray plates.
PW7, SI Arjun Singh To prove part of investigation conducted
by him.
PW8, Ct. Ashok Kumar To prove the investigation conducted in his
presence.
PW9, ASI Rakesh Tyagi Investigating officer of the case.
Statement of accused
5. When examined under Section 313 Cr.P.C., accused have denied all the allegations against them. They have also denied their presence on the given date, time and place and pleaded alibi. However, in defence, they have led no evidence despite opportunity.
6. Arguments heard. File perused.
FIR No. 508/08 4/13
Discussion
7. Occurrence is alleged to have taken place on 03.12.2008 at about 6.00 pm, on main Patel Road, under Shadipur Metro Station. Case was registered on the basis of statement of Arun Mishra_which is Ex.PW1/A. This statement was forwarded by ASI Arjun Singh on 06.12.2008 at 12.20 am.
As per case of the prosecution itself, both Arun Mishra and Narender Mishra did not make any statement to the police on 03.12.2008, 04.12.2008 and 05.12.2008. Ex.PW7/A is DD No. 34A recorded at Police Station Patel Nagar on 03.12.2008 at 7.00 pm. As per this DD entry no. 34A, lady Constable Kiran of PCR informed that someone had snatched money at Shadipur metro station, gate no. 4 and then run away. Mobile phone number 9810534747 also finds mention in this DD entry. It has come in the cross examination of PW1 Arun Mishra that this was his mobile phone number and that he had called police from a local PCO and also made call to PCR from this mobile phone number. But neither in Ex. PW1/A nor in his statement made in court, PW1 stated about snatching of money from him by anyone on 3.12.2008. So it remains unexplained as to how version regarding snatching of money was given to police.
MLC Ex.PW5/A pertains to Arun Mishra whereas MLC Ex.PW5/B pertains to Narender Mishra.
In both these MLCs, the victims furnished history of physical assault. They were accompanied by Ct. Murli Singh, No. 874/C when they reached FIR No. 508/08 5/13 DDU hospital at about 8.00 pm. As per contents of MLC Ex.PW5/A and Ex.PW5/B, both injured were conscious and oriented. There is nothing in this medical record to suggest that they were unfit to make statement. Arun Mishra, injured was specifically declared fit to make statement, at the very time he was medically examined. Therefore, it was for these two persons to explain as to why they did not make statement before the police prior to 06.12.2008.
It remains unexplained as to how statement Ex PW1/A came to be recorded on 06.12.2008 when on 3.12.2008 he was declared fit, by the doctor, to make statement.
In his cross examination, Arun Mishra stated to have met the police for the first time at Shadipur Metro station and thereafter, in the hospital. He was removed to the hospital by the police. PW1 admitted that he was conscious when he reached the hospital. Although in his cross examination, PW1 stated to have not told the doctor about the incident, he volunteered that he had suffered injury and had severe pain. In the next breath, he stated to have made statement before the police at the Metro Station. However, no such statement made by the police at Metro Station has been placed or proved on record. Even otherwise, it is not case of the prosecution that any such statement was made by Arun Mishra at Metro Station.
8. Admittedly, Arun Mishra was discharged from the hospital during the night intervening 03/04.12.2008. At that time, police personnel were present with him. According to PW1, from the hospital he was brought to the police FIR No. 508/08 6/13 station where his statement was recorded during the night intervening 03/04.12.2008. He categorically stated that his statement was recorded only once. However, in the next sentence he replied that his statement was recorded on the next day morning when he was called to the police station. This contradiction creates doubt in the version narrated by PW1 Arun Mishra as to date of recording of his statement.
As per prosecution version, Narender Mishra also did not make any statement prior to 06.12.2008. However, in his cross examination, Narender Mishra stated to have been made statement before police on 04.12.2008. He categorically stated that his statement was never recorded after 04.12.2008. So it remains unexplained as to whether statement of Narender Mishra was recorded on 04.12.2008 or on 06.12.2008 and in case statement of Narender Mishra was recorded on 04.12.2008, as to where the same is why it has been withheld.
Manner of occurrence Contradictions
9. As per prosecution version, when Arun Mishra was riding his motorcycle and his brother Narender Mishra was sitting on the pillion and they were moving towards Chawri Bazar via Metro Station Shadipur, one esteem car hit their motorcycle from behind. When Arun Mishra stopped his motorcycle in front of the gate of Metro Station and started checking it, the same Esteem car came from behind and stopped there. As per version narrated by Arun Mishra in his statement recorded on 06.12.2008, that the time many boys came out of the Esteem car and started hurling abuses at him FIR No. 508/08 7/13 and his brother and only one of them picked up danda from the car and inflicted injury on his (Arun Mishra) head, resulting in bleeding. When Narender Mishra stepped ahead to save him (Arun Mishra), those boys again inflicted injuries on his person (of Arun Mishra) with danda, kick and fist blows.
While appearing in Court Arun Mishra as PW1 stated that about 4 persons had got down from the Esteem car and that one occupant started quarreling with him while others picked up quarrel with his brother.
As regards the weapon, PW1 Arun Mishra stated in Court that one of the occupants of the car had given blow on his head with danda, as a result whereof he fell on the stairs of the Metro Station and blood started coming out. He was given beatings several times as further stated by PW1.
He further stated that it is Saurabh accused who was having a danda. In his chief examination, Arun Mishra nowhere stated that any other occupant of the car was also armed with danda or used any such weapon in inflicting injuries on his person or on the person of his brother. This version narrated by him is, therefore, not in consonance with version narrated to the police in his statement ExPW1/A where it finds mention that all the boys used dandas, kick and fist blows in giving them beatings and causing injuries.
So far as injuries on the person on his brother Narender Mishra are concerned, PW1 stated in his crossexamination to have not seen danda blows being inflicted on the person of his brother Narender Mishra, reason FIR No. 508/08 8/13 being that he had fallen down by that time. He came to know about the injuries on the person of Narender Mishra only after he got up.
As per version of the prosecution available in Ex PW1/A i.e. statement before the police, motorcycle was being driven by PW Narender Mishra. However, while appearing in Court, PW1 Arun Mishra stated that it is who was driving the motorcycle and that it is who stopped the motorcycle just ahead of the esteem car, after the motorcycle was hit from behind.
While appearing as PW3, Narender Mishra stated that Mohit accused hurled abuses at him after he stopped the motorcycle and started looking at the damage. Arun Mishra objected to it. Thereafter, Saurabh accused hit a danda on the head of Arun Mishra resulting in injury on his person. Further according to PW3 when he stepped ahead to save his brother, Arvind accused caught hold of him (PW3) from behind and Saurabh inflicted danda blow on his right thigh. Thereafter, accused persons started giving them beatings and they fell down.
It is significant to note that PW Narender Mishra did not state about use of danda by all the occupants of the car. He named only Saurabh accused who used danda in inflicting injuries on his person and on the person of his brother Arun Mishra. This version regarding use of weapon is, therefore, in contradiction to the version available in Ex PW1/A i.e. statement made by Arun Mishra made before the police.
10. As regards identity, as noticed above, in Ex PW1/A, there is no mention except that there were many boys and one of them was Manish. FIR No. 508/08 9/13 Had Arun Mishra seen any of the accused hurling abuses or inflicting injuries or giving them beatings, he would have given at least some description of the assailants in statement of Ex PW1/A, even if made on the fourth day of the occurrence. Nondescription of the assailants in this statement recorded on 06.12.2008, also puts the Court of guard to scrutinize the version narrated by him and his brother Narender Mishra with more care and caution. Admittedly, the two brothers did not know any of the assailants prior to the present occurrence.
In his cross examination, Arun Mishra stated that some day after occurrence, IO had called him to the police station in connection with identification of accused persons and on that date, he found Arvind accused present at the police station with his father. It is significant to note that PW1 Arun Mishra while making statement before the police, did not name any of the accused but while appearing in Court, he named Saurabh, Mohit and Arvind. However, it remains unexplained as to how and when he came to know there names.
PW3 Narender Mishra named Mohit as the person who hurled abuses at him; Saurabh accused as the person who inflicted injuries with danda and Arvind who caught hold of him (PW3) from behind. But the fact remains that he did not make any statement before the police prior to 06.12.2008. In his cross examination, PW3 admitted that he did not know the accused persons earlier. He is alleged to have become unconscious on receipt of injuries and regained consciousness 23 hours thereafter. It is in his cross FIR No. 508/08 10/13 examination that he came to know about Mohit at the spot but he came to know about names of other accused at the police station. He explained that he was called to the police station in connection with identification of other two accused and found both of them present there. He further stated that names of other two accused persons were disclosed to him by the police. The witness admitted in his cross examination to have not given description of the accused persons other than that of Mohit accused. He could not see them properly by face, as clearly stated by him.
12. As per prosecution version Deepak Kumar s/o Fulan Prasad, R/o T47, West Patel Nagar, Delhi apprised Arun Mishra about the number of the Esteem car in which the assailants made good their escape. Said Deepak Kumar has stepped into the witness box as PW2. According to this witness, on 3.12.2008 at about 6/6.30 a.m he came down from Shadipur Metro Station and on reaching the road found that 34 persons having surrounded Narender and Arun Kumar and giving them beatings. When he reached near assailants, all of them managed to escape in Esteem Car No. DL8CF1807. The witness identified all the accused persons present in the court as the assailants.
As noticed above, present case was registered on the statement made by Arun Mishra on 6.12.2008 i.e three days after the occurrence. In the statement Ex. PW1/A, Arun Mishra did not state that Deepak had witnessed inflicting of injuries on his person and on the person of his brother Narender.
FIR No. 508/08 11/13
In his chief examination recorded as PW1, Arun Mishra did not state that he had come to know of the number of the Esteem car from Deepak. Even in his crossexamination PW1 did not state that he had come to know about the number of the Esteem car from Deepak. PW3 Sh. Narender Mishra has also not deposed about presence of Deepak on the given date, time and place or that the vehicle number was disclosed to them by Deepak.
PW1 admitted in his crossexamination that Deepak did not visit him in the hospital during the period he remained there. He also did not accompany him to the hospital from the spot.
As per prosecution version Deepak knew Arun Mishra and his brother Narender Mishra since his childhood. It remains unexplained as to why PW Deepak did not accompany to the hospital even after the assailants are stated to have managed to escape or during the period the two brothers remained in the hospital.
In his crossexamination PW1 Arun Mishra stated that Deepak might have reached the spot about five minutes after the occurrence. He specifically stated that at the time of occurrence Deepak had not reached there. In view of the statement of Arun Mishra, it cannot be said that Deepak had seen the accused or witnessed injuries being inflicted by them.
In his chiefexamination, PW2 Deepak Kumar stated that police reached the spot and removed both the injured to hospital. Had he been present there, he would have come forward and made the statement before the police on the same day. There is no explanation as to why PW2 Deepak FIR No. 508/08 12/13 Kumar did not make statement before the police on 3.12.2008 itself.
13. It is case of prosecution that Saurab Accused made disclosure statement and got discovered weapon of offence i.e one Danda from his house situated in Rohini. It has come in the crossexamination of police officials that no one was called from the nearby houses at the time the police party reach the house of Saurab accused. There is no explanation for non joining of any witness from the public at the time of alleged recovery of Danda. No document has been placed on record regarding departure of ASI Rakesh Tyagi from the police station, for the house of Saurab Accused. This creates doubt in the version of prosecution regarding any such recovery. Conclusion
14. In view of the above discussion, this court comes to the conclusion that prosecution has failed to substantiate the allegations levelled against the accused persons beyond shadow of reasonable doubts. Extending the benefit of doubt, this court hereby orders for acquittal of all the accused persons.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 04.01.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No. 508/08 13/13