Delhi District Court
State vs . (1). Sunder Singh on 22 February, 2016
FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 231/14 Unique Case ID No. 02404R0387132010 State Vs. (1). Sunder Singh S/o Sh. Ghisa Ram R/o Village Chandpur Khurd, Delhi. (2) Rakesh Kumar S/o Sh. Hari Singh R/o Village Chandpur Khurd, Delhi. (3) Devender Kumar S/o Sh. Deep Chand R/o Village Chandpur Khurd, Delhi. (4) Narender Kumar S/o Sh. Jai Narain R/o Village Chandpur Khurd, Delhi. FIR No. : 204/07 Police Station : Kanjhawala Under Sections : 279/337/323/341/34 IPC Date of committal to Sessions Court : 02.03.2010 Date on which judgment was reserved : 22.02.2016 Date on which Judgment pronounced : 22.02.2016 State Vs Sunder Singh etc. ("Acquitted") Page 1 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The above named accused persons were facing trial in respect of offences punishable U/s 323/341/34 IPC and accused Rakesh Kumar was also facing trial for the offences punishable U/s 279/337 IPC on the allegations that on 23.10.2007 at about 9.30 pm at Chand Pur Khurd Road, Delhi within the jurisdiction of PS Kanjhawala, all of them in furtherance of their common intention had voluntarily obstructed Rakesh @ Johney (PW2) so as to prevent him from proceeding in any direction and voluntarily caused simple injuries to him.
2. As per the case of prosecution mentioned in the charge sheet, intimation was received in PS Kanjhawala with regard to incident of quarrel on 23.10.2007 at about 10.10 pm. Same was recorded vide DD no. 35A and it was entrusted to ASI Dharambir Singh (PW7) for appropriate action. On the same day at about 11.25 pm, another information with regard to quarrel at Chota Chand Pur, was received in PS Kanjhawala. Same was recorded vide DD no. 36A and contents thereof were telephonically informed to ASI Dharambir Singh for necessary action. Subsequently, complainant Rakesh @ Johney (PW2) visited PS Kanjhawala on 27.10.2007 and made statement (Ex.PW2/A) before ASI Dharambir Singh (PW7) to the effect that 23.10.2007, he had gone to meet Jaipal on his motorcycle at Chand Pur Khurd. After sometime, he State Vs Sunder Singh etc. ("Acquitted") Page 2 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 alongwith Jaipal went walking towards the side of Mandir. At about 9.30 pm, when he was easing out ahead transformer at Mandir Road, two wheeler scooter ridden by three persons came while being driven in rash and negligent manner and driver struck said scooter against his legs, due to which he fell down on the road. The assailants also fell down alongwith the offending vehicle. Thereafter, one of said three persons took out hockey stick from the scooter and gave beatings to him. When he tried to leave the said place, one of them caught hold of him and other associate gave fist and kick blows to him. They also called their fourth associate by calling him as Narender and thereafter, said Narender also gave beatings to him with the same hockey stick. He fell unconscious on account of hockey blow made on his head. Since he was not feeling well in the hospital, he could not make statement at that time. On the basis of said statement, FIR in question was got registered for the offences punishable U/s 279/337/323/341/34 IPC and investigation was carried out by ASI Dharambir Singh.
3. During the course of investigation, ASI Dharambir Singh prepared site plan (Ex.PW7/C) of the place of occurrence and got the motorcycle no. DL8SE7165 inspected through Mechanical Inspector (PW10). He also arrested all the four accused persons and recorded statements U/s 161 Cr.PC of the relevant witnesses. After completion of investigation, chargesheet was filed before the Court.
4. After compliance of section 207 Cr.P.C., the case was State Vs Sunder Singh etc. ("Acquitted") Page 3 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 transferred to the Court of Sessions vide order dated 10.02.2011 passed by Ld. Sessions Judge, whereby the matter was withdrawn from the Court of Ld. MM and was directed to be transferred to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
5. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge for the offences punishable U/s 323/341/34 IPC against all the accused persons. Separate charge in respect of offences punishable U/s 279/337 IPC was also framed against accused Rakesh Kumar, vide order dated 17.05.2012, to which they pleaded not guilty and claimed trial.
6. In support of its case, prosecution has examined eleven witnesses namely PW1 Sh. Jaipal Singh, PW2 Sh. Rakesh @ Jonny, PW3 Sh. Rajbir Singh, PW4 HC Balraj, PW5 Ct. Qamar Ali, PW6 HC Kanwar Singh, PW7 SI Dharambir Singh, PW8 HC Suresh Kumar, PW9 SI Ram Karan, PW10 ASI (Retd.) (Technical) Devender Kumar and PW11 Dr. Kuldeep Singh, during trial.
7. Thereafter, statements U/s 313 Cr.P.C. of all the four accused persons were recorded, during which all the incriminating evidence which came on record, were put to them which they denied. All the four accused persons claimed that they are innocent and have been falsely implicated in this case. All the four accused persons also opted to lead evidence towards State Vs Sunder Singh etc. ("Acquitted") Page 4 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 their defence and examined Sh. Nand Mohan as DW1, Inspector Jagpal Singh as DW2 and ASI Balraj Singh as DW3.
8. I have already heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Sh. Vipin Sanduja, Adv. on behalf of all the four accused persons. I have also gone through the material available on record as well as the written arguments filed by the accused persons.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES
10. PW1 Sh. Jaipal Singh: He is the alleged eye witness of the incident in question. He deposed that during winter season on 23rd day of some month in the year 2007 at about 8.30 pm, Rakesh @ Johney alongwith his friend had come to his house on motorcycle. After taking meals, Rakesh had left his house and had crossed electric transformer situated at a distance of 1½ killa away from his house. He was present at a distance of about 10 - 12 steps away from him. At that time, accused persons namely Rakesh, Sunder and Devender came on two wheeler scooter from the side of Mandir. Accused Rakesh was driving the scooter whose last four digits were 7165. Accused Sunder and Devender were sitting as pillion riders on the said scooter. Accused Rakesh hit the scooter State Vs Sunder Singh etc. ("Acquitted") Page 5 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 against Rakesh @ Johney and thereafter, lost his balance and he alongwith other two accused persons fell down from the scooter. Thereafter, they started beating Rakesh @ Johney. One of the accused who was carrying hockey in his hand, hit Rakesh @ Johny with said hockey while accused Sunder and Devender gave fist and kick blows to him. Accused Sunder also called his nephew Narender to the spot, whereafter said accused also started beating Rakesh @ Johney. He tried to intervene and made efforts to rescue Rakesh @ Johney but could not succeed. He called covillagers who reached there but by that time, all the four accused persons fled away towards the side of Mandir on their scooter. He alongwith covillager removed Rakesh @ Johny to Ambedkar hospital. On the same night, police met him at the hospital and recorded his statement.
In his cross examination, he admitted that he is one of the accused in case FIR no. 201/07 of PS Kanjhawala. He was confronted with relevant portions of his chief examination visavis his police statement Ex. PW1/DA. He further deposed that he had not told concerned doctor about the manner in which Rakesh @ Johny had sustained injuries but volunteered to have told those facts to covillager from whom doctor had enquired.
11. PW2 Sh. Rakesh @ Johny: He is the complainant/injured of this case. He deposed on the lines of prosecution story during chief examination. He testified that accused Rakesh was driving the offending scooter while accused Sunder and Devender were sitting as pillion riders. State Vs Sunder Singh etc. ("Acquitted") Page 6 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 Accused Rakesh had struck scooter on his left leg, due to which he fell down on the road and sustained injuries on his left leg. Accused Rakesh took out hockey from front jali of his two wheeler scooter and gave hockey blow on his waist from back side. When he tried to escape, accused Sunder and Devender caught hold of him. Accused Sunder also gave beating on back side of his waist, whereas accused Devender gave him fist and kick blows. Accused Rakesh also called Narender to the spot and accused Narender also hit hockey on left side of his head, due to which he fell unconscious.
He identified his signature on his statement Ex.PW2/A recorded on 27.10.2007. He deposed that he was discharged from BSA hospital on next day of the date of incident but since he again felt giddiness, he got admitted in Avantika Hospital, Budh Vihar and remained admitted there till 25.10.2007. He also disclosed the registration number of offending scooter as DL8SE 7165.
It may be noted here that the aforesaid witness was subjected to cross examination by Ld. Additional PP as he was not deposing on the lines of prosecution story on certain aspects. During said cross examination, he denied to have made statement Ex.PW2/B dated 12.12.2007 before the police. He also denied to have made statement Ex.PW2/C dated 10.03.2007 before the police. He denied to have stated before the police that accused Rakesh was driving the scooter in rash and negligent manner.
State Vs Sunder Singh etc. ("Acquitted") Page 7 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 In his cross examination, he deposed that his mother is the registered owner of the motorcycle on which he had gone to the house of Jaipal. He was confronted with relevant portions of his chief examination visavis his police statement Ex.PW2/A. He was also confronted with photocopy of one statement bearing his signature made before police. He identified his signature appearing at pointA on the said statement (Mark PW2/DA) but claimed that said statement was not his statement and he had no knowledge as to how his signatures were appearing there upon. He admitted that he is coaccused alongwith Suresh Chand and Yashvir in case FIR no. 201/07 of PS Kanjhawala. He admitted that accused Rakesh did not hit hockey on his left leg. He denied the relevant suggestions put to him on behalf of accused persons.
12. PW3 Sh. Rajbir Singh : He is the registered owner of two wheeler scooter no. DL8SE7165. He deposed that said two wheeler scooter was purchased by him from accused Rakesh for a sum of Rs. 5300/. Initially, he had paid Rs. 4800/ to accused Rakesh and remaining amount was to be paid to him after its transfer in his name. He further deposed that he had never given his scooter to accused Rakesh after 18.07.2007 and he himself used to drive the said scooter.
This witness was also subjected to cross examination by Ld. Additional PP as he was not supporting the case of prosecution at all. During said cross examination, he denied to have made statement Ex.PW3/A dated 10.12.2007 before the police. However, he admitted to State Vs Sunder Singh etc. ("Acquitted") Page 8 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 have received notice U/s 133 of M.V Act (Ex.PW3/B) and his reply appearing at portion encircled MarkX on the said notice. He also admitted that aforesaid scooter was seized by police vide memo Ex.PW3/C. He also produced photocopy of receipt (Ex.PW3/D) and Forms no. 29 and 30 (Ex.PW3/E and Ex.PW3/E1 respectively) regarding purchase of said scooter.
This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
POLICE WITNESSES
13. PW4 HC Balraj: He is the Duty Officer. He has proved factum regarding registration of FIR in question. He proved copy of said FIR as Ex.PW4/A, Certificate U/s 65B of Evidence Act as Ex.PW4/C and his endorsement on the rukka as Ex.PW4/B. He had also recorded Kayami DD No. 44A regarding registration of FIR.
This witness has not been cross examined by accused persons despite grant of opportunity.
14. PW5 Ct. Qamar Ali: On 10.03.2008, he had joined investigation with IO SI Ram Karan. He deposed that accused persons namely Rakesh, Narender Kumar and Devender were arrested in his presence, vide memos Ex.PW5/A, Ex.PW5/C and Ex.PW5/E. He also proved personal search memos of said accused persons as Ex.PW5/B, Ex.PW5/D and Ex.PW5/F. This witness has not been cross examined by State Vs Sunder Singh etc. ("Acquitted") Page 9 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 accused persons despite grant of opportunity.
15. PW6 HC Kanwar Singh: He deposed that on 27.10.2007, he had handed over copy of FIR and rukka to ASI Dharamvir at the spot i.e. Chandpur Khurd Village, near Shiv Mandir Road. He further deposed that site plan was also prepared by IO at the instance of complainant, who was also present at the spot. He has not been cross examined by accused persons despite grant of opportunity.
16. PW7 SI Dharambir Singh: This witness was entrusted copy of DD no. 35A (Ex.PW7/A) at 10.10 pm on 23.10.2007 regarding quarrel at the house of Jaspal near Mandir at Chandpur Khurd Village.
He deposed that he alongwith local staff reached the place of information, where it was revealed that quarrel had taken place and one party had gone to BSA Hospital and other party had gone to SGM Hospital. He rushed to BSA Hospital, where he collected MLC of injured Rakesh @ Johny. He made enquiry from said injured and also recorded his statement. Since injured was under pain, he could not explain complete facts. One Jai Pal who had accompanied injured Rakesh @ Johny and had also suffered minor injuries, met him in BSA Hospital. He recorded his statement. Thereafter, he went to SGM Hospital, where injured persons namely Rakesh @ Sunder and Devender were found undergoing treatment therein. He collected their MLCs and also recorded statements of injured Sunder and Devender. Injured Rakesh could not make statement as his condition was not well. DD was kept pending. State Vs Sunder Singh etc. ("Acquitted") Page 10 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 On 24.10.2007 during evening hours, he again visited SGM Hospital and recorded statement of third injured Rakesh S/o Sh. Hari Ram. Thereafter, he discussed the matter with concerned SHO and FIR No. 201/07 was registered in PS Kanjhawala on 25.10.2007.
He further deposed that on 27.10.2007, he again discussed the facts with senior police officers and recorded statement Ex.PW2/A of injured Rakesh @ Johny S/o Late Ram Kumar and prepared rukka Ex.PW7/B and got the present FIR registered through Duty Officer. He also deposed that he accompanied injured Rakesh @ Johny to the place of occurrence and prepared site plan Ex.PW7/C at his instance. He also deposited MLC of said injured in BSA Hospital for providing opinion regarding the nature of injuries of said injured.
In his cross examination, he deposed that he had recorded statement of injured Rakesh @ Johny on 23.10.2007. He admitted that said statement Mark PW2/DA was in his handwriting. He also admitted that in said statement, injured Rakesh @ Johny did not claim that he was not feeling well or that he would give some other statement. He also admitted that original of statement Mark PW2/DA has not been placed alongwith the chargesheet. It was revealed that said original statement was available in the police file and accordingly, same was placed on record and was exhibited as Ex.PW7/DX. He admitted that in statement Ex.PW7/DA, complainant nowhere disclosed the name of any of the accused persons. In response to the specific question put on behalf of State Vs Sunder Singh etc. ("Acquitted") Page 11 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 accused persons as to why he did not arrest accused Rakesh @ Johny in case FIR no. 201/07 on his visit in PS Kanjhawala on 25.10.2007, he claimed that he did not do so as the situation could have been aggravated on account of cross cases pending between the parties. He denied the relevant suggestions put to him during his cross examination made on behalf of accused persons.
17. PW8 HC Suresh Kumar: He is the formal witness. He deposed that on 12.12.2007, he alongwith SI Ram Karan had joined investigation of the present case, when accused Sunder Singh was arrested. He has proved copy of arrest memo and personal search memo of said accused as Ex.PW8/A and Ex.PW8/B respectively. This witness has not been cross examined by accused persons despite grant of opportunity
18. PW9 SI Ram Karan: This witness remained IO of this case from 19.11.07 till filing of charge sheet before the Court. He deposed that after transfer of investigation from local police to DIU, investigation was marked to him. He served notice U/s 133 of M.V Act ( Ex. PW9/A) upon registered owner namely Rakesh Kumar S/o Sh. Hari Singh of scooter no. DL8SE7165, whereafter reply (Ex. PW9/B) thereof was received by him wherein it was claimed by registered owner namely Rakesh that he had already sold the scooter to Rajbir Singh S/o Khem Singh. He collected relevant documents i.e. photocopy of payment receipt mark PW9/A, acknowledgment Ex. PW3/D, whereafter he served notice U/s 133 of M.V Act (Ex. PW9/C) upon subsequent purchaser namely Rajbir Singh who State Vs Sunder Singh etc. ("Acquitted") Page 12 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 furnished reply (Ex. PW3/B) thereto and also produced the said scooter. He seized the said scooter vide memo Ex. PW3/C and also collected copy of its RC mark PW9/B. He got mechanical inspection of said scooter conducted through concerned official who furnished his report Ex. PW9/D to him.
He also deposed that on 12.12.2007, he had arrested accused Sunder Singh vide memo Ex. PW8/A. On 10.03.2008, he had arrested accused Rakesh Kumar, Narender Kumar and Devender vide memos Ex. PW5/A, Ex. PW5/C and Ex. PW5/E. He had also prepared kalandara U/s 128/177 of M.V Act (Ex. PW9/E) against accused Rakesh.
In his cross examination, he expressed ignorance regarding vigilance enquiry being conducted in the present case. However, he denied the suggestion that senior police officer had held that FIR in question had been got registered as a counter blast to FIR no. 201/07 already registered at PS Kanjhawala against the complainant party. He denied the other relevant suggestions put to him on behalf of accused persons.
19. PW10 ASI (Retd.) (Technical) Devender Kumar: This witness had conducted mechanical inspection of vehicle i.e. Bajaj Chetak Scooter No. DL8SE7165. He has proved his report dated 10.12.2007 as Ex.PW10/A. This witness has not been cross examined by accused persons despite grant of opportunity.
State Vs Sunder Singh etc. ("Acquitted") Page 13 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 MEDICAL WITNESSES:
20. PW11 Dr. Kuldeep Singh: This witness was posted as Casualty Medical Officer in BSA Hospital. He deposed that on 23.10.2007, he had examined injured Rakesh @ Johny. He proved MLC of said injured as Ex.PW11/A. He had referred said patient to Senior ResidentOrtho, ENT and Surgery for further management and opinion. He also identified the handwriting and signatures of Dr. Brijesh, Sr. Resident (Ortho) and of Dr. Raj Kumar, Sr. Resident, ENT and of Dr. Pushpraj Singh on said MLC. He also opined the nature of injury as simple. This witness was not cross examined by accused persons despite grant of opportunity.
DEFENCE WITNESSES:
21. DW1 Sh. Nand Mohan: This witness was posted as SDO, MTNL Bawana. He deposed that as per their record, telephone number 27556182 had been installed in the name of Sh. Suresh Chand S/o Than Singh, R/o H. No. 53, Chandpur Village, Delhi110081. At present, said telephone number was DNP (due to non payment). He explained that DNP means that the telephone number had been disconnected due to non payment. He further deposed that call details during the period from 23.10.2007 to 24.10.2007 were not available as the record was old. He also deposed that as per rules, the record of more than one year old, was not maintained by their department. He proved letter Ex.DW1/A. State Vs Sunder Singh etc. ("Acquitted") Page 14 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 In his cross examination by Ld. Additional PP, he deposed that he had deposed on the basis of record.
22. DW2 Inspector Jagpal Singh: This witness produced the report of DCP, (Vigilance). He deposed that as per said report, no action had been taken against the then SHO of PS Kanjhawala. He proved said report as Ex.DW2/A bearing signature of DCP (Vigilance) Sh. R.A. Sanjeev at pointA. He has not been cross examined on behalf of State despite grant of opportunity.
23. DW3 ASI Balraj Singh: This witness produced register containing DD no. 9A, DD no. 30 and DD no. 45. He proved photocopies of said DDs as Ex.DW3/A, Ex.DW3/B and Ex.DW3/C respectively.
In his cross examination, he deposed that he was not having any personal knowledge of the said DD entries and he had only produced the record.
ARGUMENTS ADVANCED AND CASE LAW CITED
24. While opening the arguments, Ld Additional PP duly assisted by counsel of complainant vehemently argued that prosecution has been successful in establishing the guilt of accused persons for offences punishable U/s 323/341/34 IPC beyond reasonable doubt. For the said purpose, they heavily relied upon the testimonies of PW1 Jai Pal Singh (alleged eye witness) and PW2 Rakesh @ Johney (complainant/injured himself) examined during trial. They also referred to the medical evidence in the form of testimony of PW11 Dr. Kuldeep Singh and MLC State Vs Sunder Singh etc. ("Acquitted") Page 15 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 (Ex.PW11/A) proved during trial. Ld. Additional PP therefore, submitted that accused persons should be convicted in this case.
25. On the other hand, Ld. defence counsel vehemently argued that the prosecution has failed to establish the charges levelled against the accused persons. For the said purpose, he also referred to the testimonies of prosecution witnesses examined during trial and pointed out various contradictions and claimed that in view of vast improvements made by relevant prosecution witnesses during trial, their testimonies are not reliable and accused persons are entitled to be acquitted in this case. The contradictions as pointed out by Ld. defence counsel shall be discussed in the subsequent paras of this judgment.
26. Firstly, I shall deal with the offences punishable U/s 279/337 IPC charged against accused Rakesh Kumar. It is needless to mention here that in order to bring home guilt of accused Rakesh Kumar for said offences, the first and foremost ingredient to be proved during trial was that said accused had been driving the offending vehicle i.e. scooter no. DL8SE7165 in rash or negligent manner so as to endanger human life or personal safety of others and while driving the said scooter in rash or negligent manner, he caused simple hurt to any person.
27. No doubt, complainant Rakesh @ Johney (PW2) is claimed to have stated in his police statement (Ex.PW2/A) dated 27.10.2007 that on 23.10.2007, accused Rakesh Kumar was driving his two wheeler scooter in rash and negligent manner and while driving so, he hit the said scooter on State Vs Sunder Singh etc. ("Acquitted") Page 16 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 his legs, due to which he fell down on the road. Undisputedly, the alleged eye witness of prosecution i.e. PW1 Jai Pal Singh did not utter anything on the point of rash and negligent driving of the offending scooter by said accused in his police statement. However, complainant Rakesh @ Johney while entering into witness box as PW2, demolished the prosecution story to the aforesaid extent, as he categorically deposed that accused Rakesh Kumar had hit the scooter against him intentionally. It is also relevant to note that even during his cross examination conducted by Ld. Additional PP, PW2 denied to have stated before the police that accused Rakesh Kumar was driving the scooter in rash and negligent manner or that said accused had hit the scooter against him while driving the same in aforesaid manner. Even the testimony of PW1 Jai Pal Singh is silent on the aspect of driving of scooter by accused Rakesh Kumar in rash or negligent manner. That being so, there is no iota of doubt that prosecution has miserably failed to establish during trial that accused Rakesh Kumar had been driving two wheeler scooter no. DL8SE7165 in rash or negligent manner or that while driving the scooter in said manner, he had caused simple hurt to Rakesh @ Johney (PW2).
28. This brings me down to the offences punishable U/s 323/341/34 IPC charged against all the four accused persons. As already discussed above, the entire case of prosecution is rested upon the testimonies of PW1 Jai Pal Singh and PW2 Rakesh @ Johney. Thus, it has to be seen by the Court as to whether the testimonies of said two witnesses State Vs Sunder Singh etc. ("Acquitted") Page 17 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 are reliable or not.
29. It is pertinent to note that in his police statement (Ex. PW2/A) recorded on 27.10.2007, PW2 stated that he alone had gone to the house of Jai Pal Singh (PW1) on his motorcycle on 23.10.2007. However, PW2 deposed during trial that he alongwith his friend Satish S/o Prem Singh had gone to the house of Jai Pal Singh on his motorcycle on 23.10.2007. He further deposed that said Satish remained at the house of Jai Pal Singh, while he alongwith Jai Pal Singh came out of the house of Jai Pal Singh and he went to attend the call of the nature towards transformer on foot whereafter, the incident took place. If said part of the testimony of PW2 is to be believed then Satish S/o Sh. Prem Singh also became one of the material witness in this case but he has neither been joined during investigation nor cited or even produced during trial. Thus, an adverse inference is liable to be drawn against the prosecution.
30. In his police statement Ex.PW2/A, PW2 Rakesh @ Johney claimed that one of the assailants had caught hold of him, while second assailant gave kick and fist blows to him and one of them took out hockey stick from the two wheeler scooter and gave beatings to him with said hockey stick. However, PW2 deposed during trial that he was caught by two persons i.e. accused Sunder and Devender and accused Sunder gave bite on back of his waist, while accused Devender gave him beating with punches and slaps.
31. It is also relevant to note that the alleged incident is claimed State Vs Sunder Singh etc. ("Acquitted") Page 18 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 to have taken place during late evening hours on 23.10.2007. PW2 claimed in his police statement Ex.PW2/A that he had become unconscious on account of injury sustained by him on his head due to blow given by hockey stick and since he was not feeling well at that time, he could not make statement before the police and that is why, he had visited PS Kanjhawala on 27.10.2007 for giving his statement in this case. However, PW2 deposed during trial that he had been discharged from the hospital on 24.10.2007. He further claimed that police did not meet him in BSA hospital. He also deposed that he had visited PS Kanjhawala on 26.10.2007 but he could not meet the police on account of some inauguration function which was being organized in the PS on 26.10.2007 and Commissioner of Police had visited there and thus, he again went to PS Kanjhawala on 27.10.2007 when he gave his statement Ex. PW2/A.
32. As is quite evident from the above discussion that there was apparent delay of four days in registration of FIR. No particular reason has been assigned by complainant in his police statement Ex.PW2/A as to why he did not gave written complaint or statement before the police in between 23.10.2007 till 26.10.2007 and it is only for the first time, PW2 came up with the story of some inauguration function and visit of Commissioner of Police in PS Kanjhawala on 26.10.2007. There is nothing on record to suggest that there was any inaugural function in the PS Kanjhawala on 26.07.2007. In the absence of this, the aforesaid explanation furnished by PW2 for delay in registration of FIR is nothing State Vs Sunder Singh etc. ("Acquitted") Page 19 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 but an afterthought story cooked up by him during trial in his effort to explain the delay caused in reporting the matter to the police. This fact assumes importance when it is an undisputed fact that FIR no. 201/07 for the offence punishable U/s 308 IPC had already been registered against complainant of this case and his coaccused persons at PS Kanjhawala on 25.10.2007.
33. Moreover, the MLC (Ex.PW11/A) of BSA Hospital of PW2 Rakesh @ Johney nowhere depicts that he was unconscious at the time of his admission in the said hospital or that he was not feeling well to the extent that he was not in a position to give statement before the police. Rather, the MLC speaks other way round. The perusal of said MLC would show that PW2 had been brought to BSA hospital on 23.10.2007 at about 11.30 pm and PW2 himself gave alleged history of assault about half an hour back. Not only this, the concerned doctor who had examined him, mentioned in his MLC that the patient was conscious oriented. The nature of injuries as recorded in the said MLC would show that PW2 was found to be having (i) Tenderness over right temporal region, swelling right ear pinna, tenderness bruise and swelling right parietal region 1x1 cm, no gross deformity (ii) Tenderness over spine over 7 & 8 thoracic vertebra, (iii) Tenderness over left leg, without bearing painful, no gross deformity. (iv) Abrasion over left scapular region 2 x 0.2 cm & 1 x 0.5 cm APP. No gross deformity, no ceepitus and (v) Abrasion over right arm 2 x 0.1 cm each, no active bleed, no ceepitus , no deformity, State Vs Sunder Singh etc. ("Acquitted") Page 20 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 limb movement. He was referred to S.R (Surgery), S.R. (Orthopedics) and S.R. (ENT) for further management and certain xrays were also got conducted as per recommendation of S.R (ENT) but ultimately, the nature of injuries was opined to be simple on 03.11.2007. Same shows that PW2 was very much conscious right from the date of alleged incident till the time of his discharge and nothing had prevented him from making statement before the police in between 23.10.07 and 26.10.2007. In this backdrop, Court finds substance in the argument of Ld. defence counsel that the possibility of complainant i.e. PW2 having concocted a story of being assaulted by the accused persons in order to make defence to counter FIR no. 201/07 registered against him and his co accused persons at PS Kanjhawala on 25.10.2007, cannot be ruled out.
34. There is another reason which persuades the Court to arrive at the aforesaid conclusion. As per the case of prosecution, the statement of complainant Rakesh @ Johney (PW2) was recorded for the first time on 27.10.2007 as the said witness was not in a position to give the statement on the date of incident i.e. 23.10.2007. However, cat came out of the bag during cross examination of complainant i.e. PW2 Rakesh @ Johney, when he was shown his signed statement (Ex.PW7/DX). He admitted that his signature was appearing on the said statement. Although, the date of recording of said statement is not mentioned therein but IO of this case i.e. PW7 SI Dharambir Singh has deposed during his cross examination that when he had gone to BSA hospital on 23.10.2007, he had recorded the State Vs Sunder Singh etc. ("Acquitted") Page 21 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 statement (Ex.PW7/DX) of injured Rakesh @ Johney. Although, PW7 claimed that since injured Rakesh @ Johney told him that he was not feeling well and he would give other statement and that is how, he had recorded his statement (Ex.PW2/A) on 27.10.2007 but the fact remains that PW2 had made his initial statement i.e. statement Ex.PW7/DX before the police on 23.10.2007 itself. The perusal of said statement would show that PW2 nowhere disclosed the name of any of the assailants therein. Also, PW2 claimed therein that there were only three assailants who had assaulted him on that day and they were not known to him. Also, PW2 nowhere claimed therein that Jai Pal Singh had witnessed the said occurrence or that Jai Pal Singh was even present at or near the place of occurrence. However, in his subsequent police statement Ex.PW2/A, complainant Rakesh @ Johney claimed that there were four assailants and also disclosed their names to be that of accused persons facing trial in this case. He also claimed that Jai Pal Singh was also present near the place of occurrence at the time of alleged incident. Although, it was the duty of investigating agency to make the statement (Ex.PW7/DX) of complainant Rakesh @ Johney recorded on 23.10.2007, as part of the charge sheet but nevertheless, said statement has totally demolished the case of prosecution and also made the presence of PW1 Jai Pal Singh at the scene of crime, seriously doubtful. That being so, it is not safe to rely upon the testimony of PW1 Jai Pal Singh. For the similar reasons, the testimony of PW2 Rakesh @ Johney is also not found to be natural, truthful and worth State Vs Sunder Singh etc. ("Acquitted") Page 22 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 reliance.
35. It is also interesting to note that PW2 Rakesh @ Johney deposed during chief examination itself that on 10.12.2007, while he was standing at Karala bus stand, he had seen IO of this case riding on offending scooter no. DL8SE7165. Despite the fact that PW2 was also cross examined from the side of prosecution on certain aspects, he was not confronted by prosecution on the aforesaid fact that PW2 had seen IO going on offending scooter no. DL8SE7165 on 10.12.2007.
36. Not only this, PW2 also denied to have made supplementary statements dated 10.03.2007 (Ex.PW2/C) and dated 12.12.2007 (Ex.PW2/B) relied by prosecution in this case. As per the case of prosecution, PW2 had identified accused Rakesh and Devender to be amongst the assailants, in the office of DIU on 10.03.2007 and had identified accused Narender Kumar on 12.12.2007 in the office of DIU, to be one of the assailants having assaulted him during the alleged incident. Considering the fact that PW2 denied to have identified the aforesaid three accused during the course of investigation, it is not understandable as to how said witness identified the aforesaid three accused persons during trial. Undisputedly, judicial TIP of said three accused persons were not carried out by investigating agency during the course of investigation. The testimony of PW2 has been recorded during trial only on 19.07.2012 i.e after a gap of about five years or so. Thus, the identification of said three accused by complainant i.e. PW2 Rakesh @ Johney for the first time, State Vs Sunder Singh etc. ("Acquitted") Page 23 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 during trial becomes meaningless.
37. Apart from above, there are several material improvements found to have been made by PW2 Rakesh @ Johney (complainant) during trial visavis his police statement (Ex.PW2/A) made during investigation. In his police statement Ex.PW2/A, PW2 nowhere claimed that hockey stick was kept in front basket of the two wheeler scooter but he is found to have made improvement in this regard during trial by claiming that hockey was taken out by one of the assailants from the front basket of the scooter. Likewise, his previous statement Ex.PW2/A is silent that any of the assailant had hit on the back side of his waist or had given him bite on back side of his waist but he made improvement by deposing so during trial.
38. There is one more interesting aspect to be mentioned herein. When PW2 was confronted with his initial police statement Ex.PW7/D, he although admitted his signature appearing at pointA thereupon but claimed that had it been his statement, he would have named the accused persons in the said statement as they were previously known to him. But said part of his testimony stood contradicted by relevant portion of his own police statement (Ex.PW2/A), wherein he claimed that he was not aware about the names of the assailants and subsequently, he had come to know their names as Sunder Singh, Rakesh Kumar, Devender Kumar and Narender Kumar i.e. the accused herein.
39. There are also certain contradictions in the testimonies of State Vs Sunder Singh etc. ("Acquitted") Page 24 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 PW1 Jai Pal Singh and PW2 Rakesh @ Johney. Firstly, PW1 nowhere deposed that Rakesh @ Johney (PW2) had come to his house alongwith his friend Satish, as testified by PW2 in his own statement made during trial. Secondly, PW1 Jai Pal Singh deposed during chief examination that one of the accused sitting on pillion seat, was having hockey in his hand but as contrary thereto, PW2 Rakesh @ Johney deposed during chief examination that hockey was kept in front basket of the two wheeler scooter and it was accused Rakesh Kumar who had taken out said hockey stick and hit it upon his waist from back side. Thirdly, PW1 deposed during chief examination that accused Sunder had called his nephew i.e. accused Narender Kumar at the spot but PW2 contradicted the said statement by deposing that it was accused Rakesh Kumar who had call accused Narender Kumar at the spot. Fourthly, PW1 deposed that after reaching to the spot, accused Narender Kumar had given beatings to Rakesh @ Johney, which is against contradictory to the relevant portion of the testimony of PW2 who deposed that after reaching to the spot, accused Narender Kumar took hockey stick from accused Rakesh Kumar and hit the said hockey stick on left side of his head. Fifthly, PW1 deposed during chief examination that his statement was recorded by the police in the hospital on the same day but his statement U/s 161 Cr.P.C. filed alongwith the charge sheet, is dated 23.11.2007. Same shows that police statement of PW1 was recorded after a gap of one month from the date of alleged incident. Same also suggests that PW1 was not present at the time of State Vs Sunder Singh etc. ("Acquitted") Page 25 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 alleged incident and was introduced subsequently in order to support the story as propounded in the charge sheet. Sixthly, PW1 deposed that he alongwith covillager had removed injured Rakesh @ Johney (PW2) to BSA hospital but MLC (Ex.PW11/A) of PW2 shows that he was brought to said hospital by one Kaptan Singh. Who is that Kaptan Singh, remained mystery throughout the trial.
40. There is yet another reason due to which accused persons are entitled to benefit of doubt in this case. As per the case of prosecution, two wheeler scooter no. DL8SE7165 was found to be registered in the name of Rakesh S/o Sh. Hari Singh, who was served with the notice U/s 133 of M.V Act and in response thereto, it was brought to the notice of police that said scooter had already been sold by registered owner to one Rajbir Singh S/o Kehar Singh. Said Rajbir Singh has been examined as PW3 during trial. However, his testimony would show that he has demolished the case of prosecution by deposing that he did not give the aforesaid scooter after 18.07.2007, to accused Rakesh Kumar and he himself used to drive the said scooter after purchasing the same from Rakesh Kumar S/o Hari Singh on 18.07.2007. That being the position, there was no occasion for accused Rakesh Kumar to drive the aforesaid scooter on the date of alleged incident i.e. 23.10.2007.
41. In the light of aforesaid discussion, Court is of the view that prosecution has miserably failed to establish the guilt of accused persons beyond pales of reasonable doubt. Consequently, all the four accused State Vs Sunder Singh etc. ("Acquitted") Page 26 of 27 FIR No. 204/07; U/s 279/337/323/341/34 IPC; PS Kanjhawala D.O.D. 22.02.2016 persons namely Sunder Singh, Rakesh Kumar, Devender Kumar and Narender Kumar stand acquitted for the respective charges levelled against them by giving them benefit of doubt. File be consigned to record room after compliance of Section 437A Cr.PC.
Announced in open Court today
On 22.02.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts/Delhi
State Vs Sunder Singh etc. ("Acquitted") Page 27 of 27