Delhi District Court
State vs (1) Vikas Pandit @ Vikas Kaushik on 22 October, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST), KARKARDOOMA COURTS, DELHI.
SC No.27/2012
Unique case ID No. 02402R0020762012
FIR No.95/2011
Police Station Pandav Nagar
Under Section 308/452/427/506/34 IPC
State Versus (1) Vikas Pandit @ Vikas Kaushik
(Proceedings abated since expired)
(2) Meghraj @ Meghan
S/o Kartar Singh
R/o D15, Acharya Niketan, Mayur
Vihar, Delhi91.
Date of Institution : 14.05.2012
Date of judgment reserved : 10.10.2013
Date of judgment : 22.10.2013
J U D G M E N T
The Police of Police Station Pandav Nagar has filed the present chargesheet against accused persons, namely, Vikas Pandit @ Vikas Kaushik(since expired) and Meghraj @ Meghan in FIR No.95/2011, under Section 308/452/427/506/34 IPC SC No.27/2012 State Vs. Vikas Pandit etc. Page 1 of 21 2 Briefly stating, the facts of the prosecution case are that on 27.03.2011 an information was received in PS with regard to a quarrel which was recorded vide DD No.20A Ex.PW1/A. The same was assigned to ASI Dharamvir(PW10) who along with Ct. Sensar Pal(PW2) reached C53, Shashi Garden and found that the scattered articles were lying in Idea showroom. They came to know that injured was admitted in Kukreja Hospital. Ct. Sansar Pal was left to protect the spot and he himself went to Kukreja Hospital and found injured Sushil Kumar Rawal(PW5) admitted there. ASI Dharamvir Singh(PW10) obtained MLC of the injured and recorded his statement Ex.PW5/A. 3 In his statement, injured Sushil Kumar Rawal(PW5) that he was running a collection centre of Idea mobile phone at C53, Shashi Garden, Delhi. On 27.03.2011 at about 1.00 p.m., he and his known Raj Kumar were sitting in the showroom. Suddenly, three boys came into the showroom. One of them was having a baseball bat in his hand. When the injured asked them as to what the matter was, those boys started beating him with baseball bat. He further stated that one of the boys was hiding something in his pant and he did not know as to whether it was knife or a pistol. Thereafter, some SC No.27/2012 State Vs. Vikas Pandit etc. Page 2 of 21 other associates of those boys came inside and started vandalizing the showroom and ran away. When he checked his cash, he found that collection of Rs. 26,000/ which pertains to date 26.03.2011 and collection of Rs. 3,000/ of the day of incident and one gold chain weighing 10 gram was missing. Somebody gave ring to the police at No.100. Son of one Mr. Jain removed the injured to the hospital. He has also stated that he had seen one of those boys roaming in the area who is known by the name of Vikas @ Pandit and that he was the person who was hiding something in his pant. He has also stated that he could identify remaining persons if produced before him. He has also stated that those boys also threatened him to kill while running away.
4 IO ASI Dharamvir Singh(PW10) made endorsement Ex.PW10/A on the statement of injured and sent the same to PS for registration of the FIR. In the PS, PW1 WHC Rajni who was working as duty officer recorded FIR Ex.PW1/C and made endorsement Ex.PW1/B on the rukka. ASI Dharamvir Singh(PW10) got the spot photographed. Weapon of offence i.e. two baseball bats and three pieces of bricks(colly Ex.P1) which were lying at the spot and which alleged persons had allegedly left while running away SC No.27/2012 State Vs. Vikas Pandit etc. Page 3 of 21 were seized vide memo Ex.PW2/A. Statements of the witnesses were recorded. Search for accused was made. Further investigation of the case was assigned to SI Parveen Kumar(PW12) who prepared site plan Ex.PW12/A at the instance of the complainant. 5 On 4.5.2011, accused Vikas Pandit(since expired) surrendered in the Court, therefore, SI Parveen Kumar(PW12) moved application for interrogation and formal arrest and after obtaining permission from the Court, he arrested accused Vikas Pandit vide memo Ex.PW3/A, his personal search Ex.PW3/B was conducted and his disclosure statement Ex.PW3/C was recorded by the IO. Accused Vikas Pandit pointed out the spot vide memo Ex.PW3/D. Another disclosure statement Ex.PW12/B of Vikas Pandit was also recorded by the IO.
6 On 18.05.2011, accused Meghraj also surrendered in the Court. After obtaining permission from the court, he was arrested vide memo Ex.PW6/B and his personal search Ex.PW6/C was conducted. He made disclosure statement Ex.PW6/A. Application Ex.PW11/A for TIP of accused Meghraj was moved by the IO and he has refused to join the TIP. TIP proceedings Ex.PW11/B were conducted in that regard. Copy of the TIP proceedings was supplied SC No.27/2012 State Vs. Vikas Pandit etc. Page 4 of 21 to the IO vide his application Ex.PW11/C. 7 Injured Sushil Rawal was medically examined in Kukreja Hospital. According to MLC Ex.PW7/A, he had received lacerated wound on left parietal bone and abrasion on thigh and shoulder. Nature of injury was opined to be simple. 8 During investigation, it revealed that accused persons were accompanied by Parvez @ Guddu, Sabu and Nikki on the day of incident. Parvez @ Guddu was apprehended but during TIP, complainant failed to identify him, therefore, he was placed in column No.2. Remaining accused persons were tried to be searched but they could not be traced out as their addresses were not known. 9 After completion of the investigation, chargesheet was filed against accused persons in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
10 At the time of filing chargesheet, accused Vikas Pandit @ Vikash Kaushik was reported to have expired, hence, proceedings against him were abated.
11 After hearing Ld. Counsel for the accused Meghraj SC No.27/2012 State Vs. Vikas Pandit etc. Page 5 of 21 and Ld. Addl. PP for the State, charges under Section 308/452/427/506/34 IPC were framed against the accused to which he pleaded not guilty and claimed a trial.
12 In order to prove its case, prosecution has examined as many as 12 witnesses. PW5 Sushil Kumar Rawal is the complainant/ injured whereas PW4 Raj Kumar was employee of the complainant and was present at the shop at the time of incident. PW8 Vikas Jain is neiguhbour of the complainant was also running a shop in the neighbourhood. PW9 Guddi is brother of the complainant. PW7 Dr. Ramesh Kumar had medically examined the injured. PW11 Sh. J.P.Nahar the then Ld. M.M. had conducted TIP in respect of accused Meghraj. PW1 WHC Rajini was duty officer. PW2 Ct. Shansar Pal, PW3 HC Jagdish, PW6 Ct. Nitesh remained associated in the investigation conducted by Investigating Officers PW10 ASI Dharamvir Singh and PW12 SI Parveen Kumar.
13 On conclusion of evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein he gas denied the case of prosecution in toto. He has stated that he is innocent and has been falsely implicated in the present case by the police. Accused persons opted not to lead evidence in his defence. SC No.27/2012 State Vs. Vikas Pandit etc. Page 6 of 21 14 I have heard Ld. Addl. PP for the State and Ld. counsel for the accused persons and have carefully gone through record of the case.
Occurrence 15 Case of the prosecution is that on the day of incident i.e. on 27.03.2011, both the accused along with their associates came to the showroom of the complainant Sushil Kumar Rawal (PW5) and gave beatings to him. It has been argued by the Ld. Counsel for the accused Meghraj that there is no evidence on record that accused Meghraj came along with Vikas Pandit to the showroom of the injured or gave beatings to injured/complainant as this witness as well as none of the eye witnesses has supported the case of prosecution. He has further argued that there is no other evidence on record to establish that the accused Meghraj had caused injury on the person of Sushil Kumar Rawal (PW5) and none of the eye witness including the complainant identified accused Meghraj as the assailant or the trespasser or that he caused damage to the shop of the complainant. 16 On the other hand, Ld. Addl. PP for the State has argued that the hostility of complainant Sushil Kumar Rawal and other eye witnesses has not affected the case of prosecution as the SC No.27/2012 State Vs. Vikas Pandit etc. Page 7 of 21 MLC of complainant proves that he suffered injuries which establishes the case of prosecution that he was given beatings. He has further argued that evidence against accused Vikas Pandit (since expired) has come on record. He has further argued that accused Meghraj was the associate of accused Vikas Pandit, so his role cannot be segregated.
17 To prove its case, prosecution has examined the complainant Sushil Kumar (PW5). This witness deposed that he was running Idea Collection Centre in the name of M/s Rajpoot Enterprises at C53, Shashi Garden, Pocket5, near Gurudwara. Four workers, namely, Raj Kumar, Bhuwan, Ms. Priya and Dolly were employed by him on the said centre. On 27.03.2011, he along with his worker was present in his Collection Centre and at about 1.00 p.m., Vikas Pandit (since expired) armed with base ball bat along with his 2/3 associates who were also armed with base ball bat came to his shop and entered forcibly. When he asked accused Vikas Pandit as to what had happened, Vikas Pandit gave base ball bat blow on his head and associates of Vikas Pandit also assaulted him and his employees with base ball bat. Vikas Pandit and his associates forcibly took out Rs.29,000/ from cash box, his gold chain weighing SC No.27/2012 State Vs. Vikas Pandit etc. Page 8 of 21 10 grams which was forcibly removed. He has also stated that accused Vikas Pandit and his associates were also armed with countrymade pistol in dub of their pant. This witness and his employees raised alarm. Someone informed the police at No.100. His neighour Mr. Jain also reached there and then he was taken to Kukreja Nurshing Home. Police officials also reached there and recorded his statement Ex.PW5/A. 18 PW5 has further deposed that on 4.4.2011, he again joined investigation of the present case with the police. Accused Vikas Pandit had threatened him that "tuney meray khilaf case karkey acha nahi kiya, agar agey tumney mere khilaf koi bayan diya toh tumari sehat kay liya acha nahi hoga" ( you have not done right thing by getting registered a case against him and if you make statement in future, it would not be good for your health). Police had prepared site plan at his instance.
19 On 19.05.2011, PW5 was called by the IO at Tihar Jail for identifying the associates of accused Vikas Pandit and he accordingly reached there but suspect refused to get conducted his TIP. On 23.05.2011, police officials along with some person came to his centre but that person was not among with the assailants. He has SC No.27/2012 State Vs. Vikas Pandit etc. Page 9 of 21 also stated that none of the assailants/robbers was present in the court. 20 This witness was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State during which he admitted that accused Meghraj had filed a petition for quashing of FIR and he had executed an affidavit to support the quashing of FIR. He has denied that he has mixed up with accused Meghraj, therefore, he was not identifying him deliberately and intentionally in order to save him from punishment.
21 From the above testimony of complainant (PW5), it is clear that there is nothing in the testimony of PW5 to connect the accused Meghraj with the present case. He has not deposed anything against accused Meghraj. He has not stated that accused Meghraj had also come to his centre along with Vikas Pandit. He has not stated that accused Meghraj had caused any damage to his office or caused any injury to him or his employees. Therefore, testimony of PW5 is completely of exonerating nature. He has not identified accused Meghraj as the trespasser or the assailant or as the associate of accused Vikas Pandit (since expired).
22 PW4 Raj Kumar is also another alleged eye witness. PW4 was working as employee of the complainant Sushil Kumar SC No.27/2012 State Vs. Vikas Pandit etc. Page 10 of 21 Rawal at his Idea Collection Centre. He has stated that on 27.03.20111, his employer Sushil Kumar Rawal was also present at the shop. On that day at about 1.00 p.m., one Vikas Pandit came to their shop along with his 2/3 associates and they started talking with Sushil. Thereafter, Vikas Pandit and his 2/3 associates assaulted Sushil Kumar Rawal with base ball and this witness was also manhandled and assaulted by them. He has also stated that Vikas Pandit and his associates had caused damage to the showroom. He has also stated that abovesaid persons had given base ball bat blow on the head of Sushil Kumar Rawal. They had raised alarm and someone informed the police on 100 number. His employer was removed to Kukreja Nurshing Home at Shashi Garden.
23 This witness was also declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State. In his cross examination by Ld. Addl PP, he has admitted that he knew Vikas Pandit as he had been residing in Shashi Garden itself. He has also stated that he did not know the name of associates of Vikas Pandit. He has denied that accused Megh Raj present in the Court was one of the assailants. He has also denied that he was deliberately not identifying the accused Megh Raj as he has been won over by SC No.27/2012 State Vs. Vikas Pandit etc. Page 11 of 21 him.
24 PW8 Vikas Jain has stated that he was working in Aircel Company as a Salesman. On 27.03.2011, he was present at General Store of his father situated at C53, Shashi Garden, Labour Chowk, Mayur Vihar PhaseI, Delhi. On that day at about 1.00 p.m., he heard noise of "bachao bachao", he came out of the shop and saw that some persons were beating one Sushil Kumar who was running Idea Collection Centre in Shashi Garden. Meanwhile, someone informed the police; police had come and meanwhile those persons who were beating Susuil ran away from there. Thereafter, he took the injured Sushil to Kukreja Hospital where he was medically examined. Injured Sushil was assaulted with baseball bat, hockey and danda and there were about 45 assailants who assaulted Sushil. The assailants threw away danda and baseball bat etc. at the spot itself while hearing about reaching of police at the spot and ran away from there. Later on, police made inquiry from him and his statement was recorded. 25 Case of the prosecution is that PW4 Raj Kumar and PW8 Vikas Jain were the eye witnesses of the incident. Though, both these witnesses have deposed that they had witnessed the incident, but they have not stated even a single word against accused Meghraj that SC No.27/2012 State Vs. Vikas Pandit etc. Page 12 of 21 he was present at the spot at the time of incident. All they have deposed is against accused Vikas Pandit who has since expired. Both these eye witnesses have not identified accused Meghraj as the associate of accused Vikas Pandit. They have not stated that on the day of incident accused Mehgraj committed trespass in the shop of the complainant (PW5) or that he was assaulted by accused Meghraj or damage to the shop was caused by him. So, there is nothing in the testimony of both these witnesses to connect accused Meghraj with the commission of crime of the present case.
26 PW9 Guddu, brother of the injured/complainant Sushil Kumar Rawal, has stated that he was running a mobile repairing shop bearing No.101, Chaudhary Market, Mayur Vihar, PhaseI, while his younger brother Sushil was running Idea Collection Centre in shop No.C53, Shashi Garden and distance between his shop and shop of his brother might be about 1 KM. He has also stated that he used to visit the shop of his brother in routine. On 26.03.2011, in the evening time, he went to the shop of his brother Sushil and when he was returning back, one Vikas Pandit stopped him and asked him to arrange liquor but he refused at which accused Vikas Pandit abused him. Thereafter, accused Vikas along with his other 23 SC No.27/2012 State Vs. Vikas Pandit etc. Page 13 of 21 associates started grappling with him and criminally intimidated that he and his brother could not run his business in the area of Mayur Vihar PhaseI if they did not pay him weekly money (Hafta). He replied that he and his brother were doing their business at their own cost and they were not his servant. Thereafter, he managed to escape from there and started running his business. Meanwhile, accused Vikas threatened him to teach a lesson for not meeting his demand of Hafta.
27 PW9 further deposed that on 27.03.2011, neighbour of his brother Sushil informed him that Vikas along with his associates had come at the shop of his brother and assaulted his brother with baseball bat, danda etc. He was further informed that they had also caused damage to the shop of his brother. He immediately rushed towards the shop of his brother where he came to know that he had been removed to Kukreja Hospital. Meanwhile, he also reached there and got him medically examined and after getting the first aid, he took his brother to LBS Hospital with the help of police. Accused Vikas and his associates assaulted his brother to take revenge of the incident dated 26.03.2011 and for compelling them to meet his demand of hafta. His statement was recorded by the police. SC No.27/2012 State Vs. Vikas Pandit etc. Page 14 of 21 28 As per testimony of PW9 Guddu, brother of the complainant (PW5), he had not witnessed the incident of the present case. He has deposed only with regard to having previous altercation between him and accused Vikas Pandit (since expired). PW9 has not even stated that it was accused Meghraj who had demanded weekly money from him or that this accused threatened PW9 with dire consequences to him or to his brother. So, there is nothing in the testimony of PW9 to say that he had witnessed the incident or that accused Meghraj was in any way connected with the offence of the present case. As per the the above testimony of PW9, he was not present at the spot and had not witnessed the incident of giving beatings to PW5 Sushil Kumar Rawal. As per his testimony, PW9 reached at the spot on coming to know that his brother PW5 had been assaulted. In his testimony, PW9 has not deposed whether he was informed by PW5 as to how he received said injuries. So, there was no occasion for him to say that accused Meghraj had assaulted to the complainant or committed criminal trespass. His testimony is only to the effect that he got information that his brother was being beaten by accused persons, but the said testimony is hearsay and is not admissible in evidence. Testimony of PW9 cannot be said to be SC No.27/2012 State Vs. Vikas Pandit etc. Page 15 of 21 corroborative in nature inasmuch as the alleged victim of the incident PW5 Sushil Kumar Rawal had not named accused Meghraj as the assailant.
29 So far as MLC Ex.PW7/A of PW5 Sushil Kumar Rawal is concerned, it shows that he was medically examined by Dr. Ramesh Kumar (PW7) and he received lacerated wound on his left parietal bone and abrasions and the injuries sustained by PW5 were opined to be simple in nature. As per MLC Ex.PW7/A, PW5 Sushil Kumar was brought to hospital with the alleged history of assault, but the name of none of the accused has been given in the MLC who assaulted injured Sushil Kumar.
30 I have gone through the ratio of judgment in case of State of UP vs. Shri Krishan AIR 2005 SC 762 in which the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. In another case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90, the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. 31 In the present case, PW5 Sushil Kumar Rawal who is SC No.27/2012 State Vs. Vikas Pandit etc. Page 16 of 21 the complainant as well as victim, PW4 Raj Kumar and PW8 Vikas Jain, alleged eye witnesses of the incident even did not identify accused Meghraj as the trespasser or the person who had assaulted the complainant. Even, the allegedly recovered weapon of offence i.e. baseball bat and pieces of brick were not put to these public witnesses to confront them with the same to say that complainant was assaulted by these weapons of offence. Even, these baseball bat and brick pieces were not put to the doctor to ascertain whether the injuries suffered by the complainant could have been caused with those baseball bat and brick pieces. There is no independent corroboration to the recovery of said baseball bat and brick pieces. Therefore, the conviction of accused Meghraj cannot be based on such a distorted version given by complainant/injured PW5 Sushil Kumar, PW4 Raj Kumar and PW8 Vikas Jain.
32 In view of above discussion, there is no evidence on record that injured Sushil Kumar Rawal (PW5) received injuries at the hands of accused Meghraj. There is no evidence on record either substantive or corroborative to hold that on the day of incident, accused Meghraj committed trespass in the shop of the complainant (PW5) or that he assaulted the complainant or caused damage to the SC No.27/2012 State Vs. Vikas Pandit etc. Page 17 of 21 articles lying in the shop or criminally intimidated him to kill. So, in view of above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused Meghraj beyond reasonable doubt that he caused injuries on the person of complainant or he committed criminal trespass in the shop of the complainant or that he committed mischief by causing damage to the articles lying in the shop or that he criminally intimidated the complainant. Consequently, in my considered view, accused Meghraj is entitled for acquittal for the offences punishable under Section 308/452/427/ 506/34 IPC.
Identity of accused 33 The identity of accused Meghraj being the perpetrator of crime has not been established. Identification of accused has not been established from the testimony of complainant/injured (PW5) as well as another alleged eye witnesses Raj Kumar (PW4) and Vikas Jain (PW8) in the Court. None of these witnesses had named accused Meghraj as the person who committed criminal trespass into the shop of the complainant or gave beatings to him or caused damage to teh articles lying in the shop or that he was member of the assailants. In view of nonidentification of accused Meghraj by complainant/injured SC No.27/2012 State Vs. Vikas Pandit etc. Page 18 of 21 and other eye witnesses, a doubt is cast about the story put forth by the prosecution.
34 I have gone through the ratio of judgment in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) in which it was held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been convicted for offence charged. In the present case also, the identity of accused Meghraj being the perpetrator of crime has not been duly established and same is full of doubts. 35 I have also gone through another judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90 in which the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. In another case titled State of UP vs. Shri Krishan AIR 2005 SC 762, the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. The ratio of above authorities is squarely applicable to the facts of the present case inasmuch as the testimony of all the alleged eye witnesses i.e. SC No.27/2012 State Vs. Vikas Pandit etc. Page 19 of 21 including the complainant is neither reliable nor trustworthy. 36 Thus, the prosecution has failed to establish the identity of accused Meghraj beyond reasonable doubt being the perpetrator of crime of the present case.
Conclusion 37 In the present case, prosecution has examined injured/complainant Sushil Kumar Rawal (PW5). But the fact remains that testimony of PW5 is silent about the complicity of accused Meghraj in commission of the offence of the present case. He has not identified accused Meghraj as the member of the assailants who had entered his shop on the day of incident. He has not stated anything that accused Meghraj assaulted him or caused damage to the articles lying in his shop or that he had criminally intimidated him. 38 Prosecution has also examined PW4 Raj Kumar and PW8 Vikas Jain, other alleged eye witnesses of the incident. Though, both these witnesses have witnessed the incident from their eyes, but they have stated that it was accused Vikas Pandit who along with his associates came to the shop of the complainant and assaulted him. They have not stated anything that accused Meghraj was the associate of accused Vikas Pandit or that accused Meghraj was present at the SC No.27/2012 State Vs. Vikas Pandit etc. Page 20 of 21 spot at the time of incident. Both these witnesses turned completely hostile and had not supported the case of the prosecution even on a single aspect. They have deposed that he had not seen the accused Meghraj as the assailant on the day of incident. Their statements are of no help to the prosecution as there is nothing in their testimony from which accused Mehgraj could be connected with the commission of offence of the present case. Prosecution has further failed to prove convincingly that accused Meghraj caused mischief while damaging the articles lying in the shop of complainant. Therefore, I am of the view that prosecution has not been able to prove its case against accused Meghraj beyond reasonable doubt. 39 Consequently, I am of the considered opinion that prosecution has failed to prove its case against accused Meghraj beyond reasonable doubt. Accordingly, accused Meghraj @ Meghan is hereby acquitted of the charges framed against him under Section 308/452/427/506/34 IPC. He is directed to comply with provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 22.10.2013 District & Sessions Judge(East)
Karkardooma Courts, Delhi
SC No.27/2012 State Vs. Vikas Pandit etc. Page 21 of 21