Delhi District Court
Sc No. 57984/16 Fir No. 178/11 Ps. ... vs . Dinesh & Anr. Page No. 1 Of 10 on 23 April, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 57984/16
FIR No. 178/2011
PS Shahbad Dairy
U/s: 308/34 IPC
174(A) IPC
State
Versus
1.Dinesh S/o. Sh. Dal Bahadur R/o. E6, Gali No. 11 S.B. Dairy, Delhi
2. Uttam S/o. Sh. Ram Sanjog Saini R/o. E12/20 S.B. Dairy, Delhi Date of institution : 14.10.2015 Judgment reserved on : 23.04.2018 Judgment delivered on: 23.04.2018 ORDER/JUDGMENT: Accused persons Dinesh and Uttam stand acquitted of the offence(s) u/S. 308/34 IPC, however, accused Uttam is held guilty and stands convicted of the offence(s) u/S. 174(A) IPC.
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1. Brief facts are that on 21.05.2011 on receipt of DD NO. 46B regarding quarrel, HC Balwan along with Constable reached at Sharma Colony, where no complainant was found, therefore, DD No. 46B left untraced. On 22.05.2011, at 10:00 AM, one Balwan Singh came to the police station and informed that his son Sandeep Kumar was lying behind the jhuggies of Sharma Colony, who had been beaten up and who had been taken to BSA Hospital. Thereafter, HC Balwan along with Ct. Om Prakash reached BSA Hospital and obtained MLC of Sandeep S/o. Balwan Singh, admitted into the hospital with the alleged history of physical assault and was found to be having following injuries :
(i) Lacerated wound 4cm x 3 cm x 1 cm lateral corner left eye out ending upto left region;
(ii) Lacerated wound 3 cm x 1 cm x 0.5 cm 1st web space extending to plamar aspect (Lt) hand;
(iii) Small laceration 1 cm on left arm.
However, he was found unfit for statement. There was no other eye witness found. On investigation, it was fond that incident had taken place behind Sharma Colony. Thereafter, on the said averments, FIR u/S. 308 IPC was registered and investigations were taken up.
2. On 28.05.2011, injured Sandeep S/o. Balwan was found fit for statement and accordingly his followIng statement was recorded by SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 2 of 10 -3- the IO :
That on 21.05.2011, Gajni @ Rakesh took him towards the back of E Block jhuggies, where already Imran, Dinesh and Uttam were present. All of them were intoxicated. They also made him to take alcohol, he had a prior quarrel with Gajni along with his friends, thereafter Gajni started quarreling with him. When he was leaving the said spot, he started arguments with him and thereafter, he took a stone and threw towards him, as a result of which he sustained injuries below his left eye and he fell down. Thereafter, Dinesh, Uttam and Imran started assaulting him fists and leg blows, Gajni also took out a danda and started assaulting him, due to which, he became unconscious.
3. Thereafter, site plan was prepared of the said spot at the instance of the injured. On 11.06.2011 accused Dinesh was arrested, result on the MLC of the injured was obtained. It was mentioned in the charge sheet, remaining accused persons namely Uttam and Gajni could not be arrested, against whom process u/S. 82, 83 CrPC was initiated and on 20.09.2012, they were declared proclaimed offenders. Thereafter, on completion of investigations, charge sheet u/S. 308/34 IPC was filed SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 3 of 10 -4- in the court against accused Dinesh.
4. On committal of the case to the Court of Sessions, vide order dated 07.10.2015, the matter was fixed for 14.10.2015. In between accused Uttam was also arrested in proceedings u/S. 41.1(c) CrPC on 19.06.2015 and supplementary charge sheet qua him was also filed, which was also committed for 14.10.2015. However, the accused Gajni @ Rakesh continued to remain a proclaimed offender.
5. Thereafter, vide order dated 14.07.2015 the charge(s) u/s 308/34 IPC was framed against both the accused persons mentioned above, whereas, an additional charge(s) u/S. 174(A) IPC was framed separately against the accused Uttam, to which they pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 2 witnesses :
a) PW1 is Balwant Singh, the father of the injured, who is a formal witness, who had taken his injured son to the hospital on 21.05.2011.
b) PW2 is Sandeep, the injured and the lone eye witness, who has turned hostile regarding the time, place and the manner of the incident as well as identity of the accused being involved in the present incident.
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7. On 21.04.2018, the accused Uttam in the presence of Ld. Amicus and as per legal advice received had admitted the processes u/s 82/83 Cr.P.C. issued against him and the statements of the process servers in this regard and order dated 20.09.2012, whereby he was declared proclaimed offender. The said processes are Ex. PS1, Ex PS3, Ex. PX1, Ex. PX2 and Ex. PY.
8. On the last date of hearing, it was stated by Ld. Defence counsel that in the present case, the most material prosecution witness i.e. PW2 injured Sandeep had turned hostile and had not supported the prosecution story regarding the identity of the accused persons being involved in the incident in question dated 21.05.2011, despite lengthy crossexamination by the State and PW1 is a formal witness, who was not the eye witness to the incident.
It was further stated that accused Uttam had admitted the processes u/s 82/83 Cr.P.C. and the statements of the process servers recorded in this regard vide his statement recorded on that day and also the order dated 20.09.2012, whereby he was declared a proclaimed offender, therefore, it was stated no purpose shall be served by continuing with the trial, as at most conviction of the accused can be done u/s 174 A IPC regarding which the accused had already made admission in his statement recorded on that date, further in these circumstances, the accused persons cannot be convicted u/s 308/34 IPC as there was no other legally admissible evidence against them, as SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 5 of 10 -6- PW2, injured had turned hostile and the testimony of the other witnesses was not going to improve the case of the prosecution, who were either formal or police witnesses, even if all of them are allowed to be examined, even then it shall be impossible to secure the conviction of accused persons on the testimonies of the said remaining witnesses. Therefore, they submitted that the prosecution evidence be closed, as no purpose shall be served by continuing with the trial, as the same would be a futile exercise.
On the other hand, Ld. Addl. PP for the State opposed the same.
In these facts and circumstances, since injured PW2 Sandeep had turned totally hostile, further, accused Uttam had admitted processes u/s 82/83 Cr.P.C. and also the order dated 20.09.2012, whereby he was declared proclaimed offender, consequently, no purpose was to be served by continuing with the trial, as the same would have been a futile exercise. In these circumstances, the prosecution evidence was closed.
9. Statement u/s 313 Cr.P.C. qua accused Uttam was recorded in which the entire incriminating evidence appearing against the said accused qua offence u/s 174A IPC was put to him. The said accused submitted that he did not want to lead any defence evidence.
No statement u/s 313 Cr.P.C. against other accused Dinesh was made out.
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10. I have heard Ld. Defence Counsel / Amicus for both the accused persons and Ld. Addl. PP for the State and gone through the record.
11. PW2 Sandeep, the injured in his testimonial deposition has deposed as under :
"I am residing at the aforesaid address alongwith my family. On 21.05.2011, at about 07.00 pm, one person namely Ghajni @ Rakesh S/o Mahender Singh met me and he took me to behind the jhuggis of E Block. There three other persons were already present and all of them started consuming liquor and I was also given the liquor. I had earlier quarreled with Ghajni @ Rakesh and at that time he also started quarreling with me. On that day, Ghajni after consuming liquor again started quarreling with me. When I tried to left that place, all of sudden Ghajni lifted one stone and hit the same on my left eye. Due to said injury, I fell down, thereafter, one Imran and two other persons also started giving beatings to me with legs and fist blows. In the meanwhile, Ghajni picked up one wooden danda and Ghajni assaulted SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 7 of 10 -8- me with said danda. After the beatings of Ghajni @ Rakesh, Imran and two other persons I fell unconscious. Thereafter, someone informed my parents and I was taken to hospital by my parents where I was medically examined. Police made inquiries from me in the hospital and recorded my statement in this regard.
On 06.06.2011, I along with police visited the spot where I was assaulted by the accused persons and on my pointing out, police inspected the spot and prepared site plan. Thereafter, IO recorded my supplementary statement.
Accused Ghajni @ Rakesh, Imran and two other accused persons who caused injuries to me with wooden danda, stone and legs and fist blows are not present in the Court today. I am unable to identify two other persons today in the Court who also gave me legs and fist blows."
12. From the above testimony of PW2 injured, he has not deposed anything against the accused Uttam and Dinesh that they were the persons who had assaulted him on 21.05.2011. He has put the entire blame on accused Gajni @ Rakesh and Imran as the persons who had SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 8 of 10 -9- given him beatings with wooden danda, stone and legs and fists blows. As stated above, Gajni @ Rakesh has been declared proclaimed offender and the other accused has not been caught or arrested.
Despite lengthy crossexamination by the Ld. Addl. PP for the State, he did not identify the accused Uttam and Dinesh who gave him beatings with legs and fists blows along with accused Gajni and other accused persons on 21.05.2011.
13. PW1 is the father of the injured Balwan Singh, who had merely taken the injured to the hospital on 21.05.2011. He is not an eye witness to the incident.
14. Accused Uttam in his statement recorded on 21.04.2018 has admitted the process u/S. 82,83 CrPC as well as order dated 20.09.2012, whereby he was declared proclaimed offender. The said processes u/S. 82,83 CrPC are Ex. PS1 and Ex. PS3 and the statement of SI Sukhpal and HC Ishwar Singh in this regard as Ex. PX 1 and Ex. PX2 respectively and order dated 20.09.2012 whereby he was declared Proclaimed Offender as Ex. PY. Even otherwise, I have gone through the said processes and the statements of the process servers, stated above. The said processes u/S. 82, 83 CrPC have been validly executed against the said accused. In any case the said accused has admitted the said processes and the statements of the process servers, as above. Accordingly, the prosecution has been able SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 9 of 10 -10- to prove beyond any doubt that the said processes have been validly executed and the accused Uttam was absconding and concealing himself and the said process were duly executed, as per the requirements of Section(s) 82, 83 CrPC and the accused was declared a proclaimed offender after meeting the requirement of Section 82, 83 CrPC.
Even otherwise, the processes u/S. 82, 83 CrPC have been validly executed against him, as per law and he was declared proclaimed offender vide detailed order dated 20.09.2012 by Ld. MM, which is a judicial order, therefore, judicial notice of the same can be taken.
15. In these circumstances, accused persons namely Dinesh and Uttam stand acquitted of the charge(s) u/S. 308/34 IPC, whereas the prosecution has successfully proved the charge(s) u/S. 174(A) IPC beyond all shadow of reasonable doubt against accused Uttam. Therefore, the accused Uttam is held guilty and stands convicted for the offence u/S. 174(A) IPC.
Announced in the open Court (Sanjeev Aggarwal) rd on this 23 day of April 2018. Addl. Sessions Judge02,North Rohini Courts, Delhi/23.04.2018 SC No. 57984/16 FIR No. 178/11 PS. Shahbad Dairy State Vs. Dinesh & Anr. Page No. 10 of 10