Delhi District Court
The State vs 1. Rajesh on 4 February, 2015
D.O.D 04.02.2015 FIR No. 80/11
P.S Narela
u/s 308/323 /34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 42/2014
UID NO . : 02404R0301682012
FIR No : 80/11
P. S : Narela
u/s : 308/323/34 IPC
The State versus 1. Rajesh
S/O Raghubir Singh
R/O H.NO 1029, Pana Paposian,
Narela, Delhi.
2 . Pawan @ Poni
S/O Om Prakash R/O H.No 1029,
Pana Paposian, Narela, Delhi.
Date of committal to session court : 06-02-2013
Date of argument : 04.02.2015
Date of order : 04.02.2015
JUDGMENT
1. Brief facts of the case are that on 20.2.2011, at about 7:15 pm, Vikas and Mohan were going on a motorcycle after attending a marriage . Motorcycle was being driven by Mohan and Vikas was the pillon rider. It SC No 42/14 State vs Rajesh &Ors (Page 1 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC is alleged that accused Rajesh and Pawan @ Poni along with their associates namely Sandeep and Arun (Both JCL) in furtherance of their common intention attacked Vikas with iron rod and darati due to which Vikash sustained injury and became unconscious . It is further alleged that they also cause injury on the person of Mohan . Both the injured persons are shown to have been removed to SRHC Hospital. Public witness Mahender Khatri is shown to have made a call at 100 number.
2. The said information was reduced into DD no.
65 B at P.S Narela and it was marked to S.I Yakoob(expired) for investigation. S.I Yakoob (expired) along with Ct. Dharambir reached at the spot and found that injured has already been shifted to the hospital. They reached at the hospital and recorded the statement of injured Mohan on the basis of which present FIR was registered and accused persons were arrested and were chargesheeted for offences u /s 308/323/34 IPC.
3. Here it is pertinent to mention that challan against JCL Sandeep was filed before the JJB and accused Arun was declared Juvenile vide order dated 06.2.2013 by the ld committal Court and challan against him was also SC No 42/14 State vs Rajesh &Ors (Page 2 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC directed to be sent to JJB.
4. Vide order dated 03.11.2012, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 308 IPC was exclusively triable by the court of sessions, therefore vide order dated 06.02.2013 case was committed to the court of sessions.
5. Vide order dated 17.5.2013, ld predecessor of this court decided the charges and accordingly, accused Rajesh and Pawan @ Poni were charged for the offences u/s 308/323/34 IPC to which they pleaded not guilty and claimed to be tried.
6. In order to prove its case, prosecution has examined as many as nine witnesses.
7. PW 1 HC Sultan Singh is the duty officer who proved the registration of FIR ExPW1/A and his endorsment ExPW1/B on the rukka.
8. PW2 HC Arif Khan deposed that on 26.7.2011, he was posted at P.S Narela as Head Constable and was having duty as beat head constable at Pana Paposia in SC No 42/14 State vs Rajesh &Ors (Page 3 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC the area of P.S Narela. He joined investigation in this case with S.I Yakoob Khan(expired) and hey reached on the road of gas godown , Pana Paposia . There at about 4:30 -5:00 pm a secret informer came and informed them that accused Rajesh @ Monu along with his associates were sitting at the back of Gas godown and if raided they can be apprehended. S.I Yakoob Khan requested 4-5 passers by to join them in the investigation after telling them but none of them agreed to join them and they all left while expressing their difficulty to join them and left without telling their names and addresses. Thereafter, he along with S.I Yakoob Khan reached at the back of Gas Godown of Indane and he saw accused Rajesh @ Monu since he was having beat duty in the area . He called accused Rajesh @ Monu and caught him and produced him before S.I Yakoob Khan. S.I Yakoob Khan interrogated accused Rajesh @ Monu and thereafter arrested him vide memo ExPW2/A and his personal search was conducted vide ExPW2/B . Accused Rajesh @ Monu made a disclosure statement ExPW2/C in which he disclosed that he could get the 'Danda ' used by him in commission of crime from his house. Accused Rajesh led them to his house in Pana Paposia and got recovered a wooden SC No 42/14 State vs Rajesh &Ors (Page 4 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC Danda which was " chakor"( Square) in shape and of the size of 1.2 inch and one end of which was broken. The said danda was having length of 3 feet and 2 inch. That danda was converted into parcel with the help of white cloth and was sealed with the seal of MY and seized vide seizure memo ExPW2/ D .
9. PW2 HC Arif Khan further deposed that accused Rajesh led them to the respective houses of his co-accused persons who were involved in the crime . accused Pawan @ Poni was apprehended from his house and after interrogation he was arrested vide memo ExPW2/G and his personal search of accused Pawan @ Poni was conducted vide ExPW2/H . PW2 was cross examined by the ld counsel for the accused persons.
10. PW3 Ct. Vinod proved DD no. 65 B dt.
20.2.2011 as ExPW3/A .
11. PW4 Vikas deposed that on 20.2.2011 at about 6:30 pm, he along with his friend Mohan(PW7) after attending a marriage were coming out of marriage pandal on motorcycle driven by Mohan(PW7). When they SC No 42/14 State vs Rajesh &Ors (Page 5 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC had proceeded for some distance, someone hit Vikas(PW4) from behind on his head with an iron rod. He got down from the motorcycle and took a round and saw that it was accused Pony @ Pawan , who had hit on his head. Vikas (PW4) went towards accused Pony @ Pawan and he gave another blow with iron rod on his head. Vikas (PW4) became semiconscious as a result of blows and fell down. Huge crowd gathered there. Mohan (PW7) took him to SRHC Hospital. In the hospital he was not in a position to give any statement to the police and Mohan (PW7) had lodged a complaint. His statement was recorded by the police. There was a quarrel between Sandeep (JCL) and him some days prior to the present incident. Present incident had taken place a JCL Sandeep wanted to take revenge from him and Sandeep (JCL) is the son of brother of accused Pony @ Pawan. PW4 was cross examined by ld Adll PP for state as he was resiling from his previous statement qua identification of accused Rajesh @ Monu. PW4 was cross examined by the ld counsel for the accused persons also.
12. PW5 Sh Mahender Khatri deposed that on 20.2.2011 , he was present at Jaat Dharamshala , Paana Paposiya Narela. When he came outside , he noticed one SC No 42/14 State vs Rajesh &Ors (Page 6 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC person lying in injured condition and in the pool of blood. He made a call at 100 number from his mobile number 9911358358 .
13. PW6 Dr. Rajesh Kumar deposed that on 20.2.2011, he examined Vikas(PW4) brought to the hospital with alleged history of assault, vide MLC ExPW6/A and opined the nature of injury as simple. He also proved the MLC of Mohan(PW7) who was also examined by him vide MLC ExPW6/B.
14. PW7 Mohan is the injured and eye witness of the incident. He has not supported the case of the prosecution. He was declared hostile by ld Adll PP for state and was cross examined by him.
15. PW8 Ct. Dharambir deposed that on 20.2.2011, he along with S.I Yakoob Khan(expired) on receipt of DD no.65 B reached at the spot where they came to know that the injured has already been removed to SRHC Hospital, Narela. S.I Yakoob (expired) along with Ct Dharambir(PW8) went to SRHC Hospital and obtained MLC of Vikas(PW4). IO recorded statement of Mohan(PW7) ExPW7/A and handed over the same to him SC No 42/14 State vs Rajesh &Ors (Page 7 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC for registration of FIR. He went to the police station and got registered the FIR.
16. PW9 ASI Hamir Singh is the witness who filed the chargesheet.
17. Thereafter PE was closed and statements of accused persons u/s 313 Cr. PC were recorded. Accused persons denied all the allegations made against them. They did not opt to lead any evidence in their defence.
18. I have heard the ld Addl. P P for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
19. Accused persons are facing trial on the allegations that they both along with co-accused Arun and Sandeep(JCL) in furtherance of their common intention attacked Vikas with an iron rod & darati and also caused simple injury to Mohan . In order to prove its case although prosecution has examined nine witnesses but the case of the prosecution rested on the testimony of PW4 Vikas and PW7 Mohan.
SC No 42/14 State vs Rajesh &Ors (Page 8 of 15 )
D.O.D 04.02.2015 FIR No. 80/11
P.S Narela
u/s 308/323 /34 IPC
20. If testimony of PW4 and PW7 is put to close scrutiny it becomes crystal clear that same is not free from doubt and reliance cannot be placed upon them. PW7 Mohan is the complainant on whose complaint present FIR is shown to have been registered and the matter was investigated . He deposed that on 20.2.2011, a wedding was taking place in his house. He and his friend Vikas(PW4) were coming out of his house after taking dinner. At about 7:30 pm, some boys started beating his friend Vikas with "Darati" in their hands. On seeing Vikas being beaten up, he ran away from the spot and found Vikas lying on the road. Huge crowd collected there. He took Vikas to SRHC Hospital. Vikas had received the injuries in his head so his head had to be stitched. Police also reached at SRHC Hospital and recorded his statement ExPW7/A.
21. PW7 turned hostile. He was cross examined by ld Adll PP for state . He has said nothing against the accused persons. He categorically stated that he knows both the accused persons present in the court but they had not given any beatings to his friend Vikas and the persons who had given beatings to Vikas , are not SC No 42/14 State vs Rajesh &Ors (Page 9 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC present in the court. Even during his cross examination by ld Prosecutor for the state, he has denied the suggestion put to him on the lines of the case of the prosecution.
22. This takes me to the testimony of PW4 Vikas.
PW4 Vikas deposed that on 20.2.2011 at about 6:30 pm, he along with his friend Mohan(PW7) after attending a marriage were coming out of marriage pandal on motorcycle driven by Mohan(PW7). When they had proceeded for some distance, someone hit Vikas(PW4) from behind on his head with an iron rod. He got down from the motorcycle and took a round and saw that it was accused Pawan @ Poni , who had hit on his head. Vikas (PW4) went towards accused Pawan @ Poni and he gave another blow with iron rod on his head. Vikas (PW4) became semiconscious as a result of blows and fell down. Huge crowd gathered there. Mohan (PW7) took him to SRHC Hospital. In the hospital he was not in a position to give any statement to the police and Mohan (PW7) had lodged a complaint. His statement was recorded by the police. There was a quarrel between Sandeep (JCL) and him some days prior to the present incident. He further deposed that present incident had SC No 42/14 State vs Rajesh &Ors (Page 10 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC taken place as JCL Sandeep wanted to take revenge from him and Sandeep (JCL) is the son of brother of accused Pawan @ Poni .
23. From the evidence of PW4 Vikas , it is clear that there was animosity between him and Sandeep (JCL) , who is son of the brother of Pawan @ Poni and they did not have good relations.
24. It is well settled law that while appreciating the evidence of the witnesses related to the injured or deceased, having strained relations with the accused party, their evidence is required to be carefully scrutinized and it is to be find out if there is scope for taking view whereby the court can reach to the conclusion that it may a case of false implication.
25. The previous enmity between the parties may be a ground for the complainant party to implicate the accused persons falsely in the present case as well as it may be a motive for the accused persons to commit the offence. Meaning thereby, the SC No 42/14 State vs Rajesh &Ors (Page 11 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC previous enmity can be used either way.
26. In Nalla Venkaiah v State of A.P , (2002) 7 SCC 117 (in para no.13), Hon'ble Supreme Court held:
"... The test, in such circumstances, as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double-edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault....."
27. In Ramanand Yadav vs Prabhunath Jha and ors, (2003) 12 SCC 606 ( in para 15), Hon'ble Supreme Court held:-
".. But at the same time if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence is biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid...."
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28. PW4 Vikas has said nothing against accused Rajesh but as far as accused Pawan @ Poni is concerned, he deposed that accused Pawan @ Poni had hit him on his head with iron rod and he felt some darkness in front of him and his friend Mohan had made a call to the police. As stated herein above, Mohan who had appeared in the witness box as PW7 has not corroborated and supported the version given by PW4. PW4 was cross examined by ld Adll PP for state. He denied that first of all Rajesh had given a rectangular wooden danda blow on his head but he replied that accused Pawan @ Poni had attacked him with the weapon like "Darati". He further replied that this fact was told to him by his friend Mohan. Meaning thereby, Vikas (PW4) has not seen accused Pawan @ Poni using "Darati" and it was stated to him by his friend Mohan who had said nothing in this regard.
29. The sequence of events as narrated by PW4 Vikas is not convincing and he has given a confusing version which has definitely a doubt in the story of prosecution. He is not sure whether he was attacked by accused Pawan @ Poni with the help of iron rod or darati.
SC No 42/14 State vs Rajesh &Ors (Page 13 of 15 )
D.O.D 04.02.2015 FIR No. 80/11
P.S Narela
u/s 308/323 /34 IPC
He has denied the involvement of co-accused Rajesh but according to the prosecution, accused Rajesh was involved in the commission of crime. Further, what happened to the alleged weapon of offence has also not surfaced.
30. There is material improvements in the testimony of PW4 Vikas. In the background of the fact that testimony of PW4 Vikas is shaky and is not supported by any other witness, no conviction can be based on the such testimony.
31. Testimony of PW4 does not inspire confidence as there are contradictions, improvements and embellishments which go to the root of the present matter and his evidence cannot be safe to rely upon( Khalil Khan versus State of MP: (2003) 11 SCC 19) . Accused persons have been able to dent the case of the prosecution and a reasonable doubt in the mind of this court has been created which would give benefit of doubt to the accused persons.
32. In the present case, prosecution has miserably failed to prove the offence against the accused persons SC No 42/14 State vs Rajesh &Ors (Page 14 of 15 ) D.O.D 04.02.2015 FIR No. 80/11 P.S Narela u/s 308/323 /34 IPC beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons. Accused Rajesh and Pawan @ poni, therefore, stands acquitted from the charges u/s 308/323/34 IPC .
33. Their surety stands discharged.
34. In terms of section 437(A) CrPC, accused persons are directed to furnish bail bond in the sum of Rs 10,000/- with one surety in the like amount.
35. File be consigned to record room after necessary compliance.
Announced in the open (Rajesh Kumar Goel) Court today i.e 4.2.2015 ASJ-5, North Rohini Court SC No 42/14 State vs Rajesh &Ors (Page 15 of 15 )