Delhi District Court
State vs Kishore Kumar & Ors. on 19 December, 2022
FIR No. 03/2014
PS Dwarka North
State vs Kishore Kumar & Ors.
IN THE COURT OF VIPLAV DABASS:
ADDL. SESSIONS JUDGE : FAST TRACK COURT:
SOUTH-WEST DISTRICT
DWARKA COURTS: NEW DELHI
SC No. 281/2017
CNR No DLSW01-005272-2017
JUDGMENT
(a) State Vs.
(1) Kishore Kumar @ Pange
S/o Sh. Shyam Pal
R/o Q-1/7A, Mohan Garden Uittam
Nagar, Delhi
(2) Suresh Kumar s/o Sh. Jaipal
Singh
R/o RZ-42/4, Gali No. 5B, Nangli
Vihar, Nagli Dairy, Najafgarh, New
Delhi
(3) Manish Kumar
S/o Sh. Randhir Singh
R/o Ward No.1, Dev Colony, Kheri
Sapla, Rohtak, Haryana.
(b) FIR No. 03/2014
(c) Police Station Dwarka North
(d) Under Sections 307/149, 325/149, 147 & 148 IPC
and under section 27 of Arms Act.
(e) Date of institution 11.01.2017
(f) Date of committal to 08.05.2017
Sessions Court
Page No.1 of 24
FIR No. 03/2014
PS Dwarka North
State vs Kishore Kumar & Ors.
(g) Date of transfer to 27.09.2022
this court
(h) Date on which 19.12.2022
judgment was
reserved
(i) Date on which 19.12.2022
Judgment
pronounced
(j) Final Order All accused persons are acquitted
for offences punishable under
section 307, 325, 147, 148, 149 IPC
and 27 Arms Act
Accused Suresh Kumar is convicted
for offence punishable under section
174- A IPC on his plea of guilt.
FACTUAL MATRIX
1. The case of prosecution is that on 02.01.2014 at about 10.00 pm at Jal Board, Treatment Plant, Sector-16D, Dwarka, New Delhi, the accused persons namely Kishore Kumar, Suresh Kumar, Manish along with co-accused Tinku, Updesh Sadhu (absconding), Deep and Anand (both juvenile) formed an unlawful assembly and in furtherance of their common object, fired gun shot upon injured Ram Babu by using a deadly weapon with such an object or knowledge or under such circumstances that if his death had been caused, they would have been guilty of murder, they had also voluntarily caused Page No.2 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
grievous hurt to complainant Akhilesh Kumar, they used force and violence against the complainant and other injured Ram Babu and that the accused Kishore Kumar also used fire arm against Ram Babu without having valid license. On the complaint of the complainant Akhilesh Kumar, the present FIR No. 03/2014 PS Dwarka North, for the offences punishable under section 307/325/147/148/149 IPC and 25/27 Arms Act was registered.
2. On the basis of the said allegations, present FIR was registered and a charge-sheet for offences punishable u/s 307/325/147/148/149 IPC, 174-A IPC and 25/27 IPC was filed after usual investigation.
COURT PROCEEDINGS
3. Ld. Magistrate took cognizance of offences alleged. After compliance of section 207 Cr.P.C, the present case was committed to court of Sessions.
4. After hearing arguments on point of charge, on 05.09.2018, as a prime facie case was made out, charge for the offences punishable u/s 307/149 IPC, 325/149 IPC, 147 IPC, 148/149 IPC was framed against all the accused persons(Kishore Kumar, Suresh Kumar and Sh. Manish) and a separate charge for the offence punishable u/s 27 Arms Act was framed against the accused Kishore Kumar @ Pange to which the accused persons pleaded not Page No.3 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
5. It is pertinent to mention that the during the trial of the present case accused Suresh s/o Sh. Jaipal was declared absconder vide order dated 23.06.2015 passed by Ms. Manika, MM-05, South West, Delhi. So, additional charge under Section 174-A IPC was also framed against the accused Suresh on 01.12.2022 to which the accused Suresh pleaded guilty and did not claim trial for said offence.
6. In order to prove the guilt of the accused u/s 307/325/147/148/149 IPC and 25/27 IPC, the prosecution has to prove the following essential ingredients of the said Sections:
Section 147 IPC:-
(1) There was an assembly of five or more persons;
(2) the assembly was unlawful; (3) members of the assembly used force or violence;
(4) accused was a member of such assembly; and (5) force or violence was used by the assembly in pursuance of their common object.Page No.4 of 24 FIR No. 03/2014
PS Dwarka North State vs Kishore Kumar & Ors.
Section 148 IPC:-
(1) assembly of five or more persons; (2) The assembly is unlawful; (3)Use of force or violence (4) Accused was a member of such unlawful assembly;
(5) In prosecution of the common object such unlawful assembly used force Section 149 IPC:-
(1) There was an unlawful assembly; (2) the accused was a member of the said assembly;
(3) accused joined intentionally or continued in the assembly knowingly;
(4) accused had the knowledge of the object; (5) the offence was committed by one of the members of the assembly;
(6) commission of offence was in pursuance of the common object; and (7) accused knew, as a member of the unlawful assembly, that such offence is likely to be committed.Page No.5 of 24 FIR No. 03/2014
PS Dwarka North State vs Kishore Kumar & Ors.
Section 307 IPC:-
(1) the accused did some act; (2) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Section 325 IPC:-
(1) Accused voluntarily caused hurt (2) Hurt was grievous within the meaning of section 320 IPC PROSECUTION EVIDENCE
7. To prove the aforementioned ingredients of the various offences and its case, prosecution started its evidence with the testimony of prosecution witnesses as per the list.
8. PW-1/ Ram Babu deposed that he was permanent resident of District Rampur, UP, that he had arms license issued from District Rampur, UP and that he had licensed gun.
He further deposed that in the month of January, 2014, he was working as gun man at Jal Board Plant, Sector-16-D, Dwarka, that he was employed Page No.6 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
there through Stallion Security Agency, that Gun man Akhilesh was also working there with PW-1 Ram Babu and he along with Akhilesh used to be on duty in the night shift.
He further deposed that on 01.01.2014, at about 10-11 pm, while he along with Akhilesh was on duty at the aforesaid plant, one person came at the gate of the said plant who was trying to enter therein, that when Akhilesh stopped him, he started abusing Akhilesh and asked him to open the gate and that when they did not open the gate of the Jal Board, the said person threatened them that he would see them tomorrow(mai kal tumhe dekh lunga).
He further deposed that on 01.01.2014, he was on his duty on the back side gate of his plant, that after hearing the noise, he came at the main gate of the plant where there was hue and cry and quarrel between the public, that when he Babu tried to intervene in the quarrel, some one fired which hit him on his right thigh and he became unconscious, that he was taken to Ayushman hospital, that from there he was referred to DDU Hospital and that he does not know who fired upon him.
He further deposed that he was performing his duty on the front main gate but he went for a round towards the back side of the plant and Akhilesh remained on the front main gate of the plant, that at that time, he heard some noise and he immediately reached front main gate, that he saw that 20-25 persons were quarreling with Akhilesh and there were firing rounds in the air and one of bullet hit Ram Babu on his right thigh and he got injured and that Page No.7 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
he also fired in air and that he became unconscious and was shifted to the hospital.
Court permitted the Ld. Addl. PP for State to cross examine the witness as he was resiling from his previous statement. He deposed that he was inquired by the police but he does not know if his statement was recorded in the matter or not. He admitted that on the backside gate of the plant, no guard was deputed and on the front gate two gunmen with four guards were deputed and that he was on duty on the front main gate. He denied that he had compromised the matter with the accused persons.
He further deposed that he had not filed any quashing petition before Hon'ble High Court of Delhi and that incident took place on 01.01.2014. He denied that the incident took place on 02.01.2014 and on 01.01.2014, the said boys threatened him and Akhilesh with dire consequences.
He denied that on 01.01.2014, 7-8 boys came on the main gate of his plant on three motorcycles or that they told "saalo gate kholo aaj tumhara kaam tamam kar denge" , that Akhilesh informed Supervisor Jitender as Jitender was present near the plant, therefore, he along with one guard Lalu immediately reached at the plant or that when they opened the gate of plant one supervisor Jitender, 7-8 boys entered into the plant with their bikes, that all the 7-8 boys gave beatings to Akhilesh and him with legs and fist blows or that when somehow, he managed to rescue from the accused persons and pointed the gun towards them, at that time, accused Kishore fired against Page No.8 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
them from country made pistol. He denied that Manish, Kishore and Suresh all were working as guard in the plant and volunteered that only Kishore was working as a guard. He denied that Manish, Deepak, Suresh, Anand (younger brother of accused Kishore) and his associates gave beatings to him with dandas, that he was deliberately not identifying the accused persons being won over by them, that accused Manish, Kishore and Suresh were working as guard in the plant and that he was deliberately not stating the true facts of the case as he has been won over by accused persons and that he was deposing falsely. The witness failed to identify the two motorcycles from the photographs shown to him as the same which were left by the accused persons at the spot. This witness was confronted with his statements recorded under section 161 Cr.P.C qua the aforesaid facts denied by him and the said facts were found recorded in the statement under section 161 Cr.P.C.
He admitted that Akhilesh made a call at 100 number, that when Ram Babu and Akhilesh fired in air, all the accused persons fled away from the spot and left their motorcycle there. He failed to identify the accused Kishor, Manish and Suresh. The witness was not cross examined by the defence counsels despite opportunity.
9. PW-2 Sh. Akhilesh deposed that he is permanent resident of Village Ajmatpur, PS Divyapur, District Orraiya UP, that he was having an armed license since year 2010, that in the year 2014, he was working as a Gunman Page No.9 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
in a security agency in Delhi, that he does not remember the date and month, however, in the year 2014, one day he was on duty at Jal Board Treatment Plant, Sector-16 D, Dwarka, that some persons had entered in the premises having dandas in their hands and had started beating him and other guard namely Ram Babu and supervisor Jitender, that he became unconscious, that he could not see the faces of the assailants and as such, he could not identify any of them, that he sustained injuries on his back and that he does not know anything more about this case.
Court permitted the Ld. Addl. PP for State to cross examine the witness as the witness was resiling from his previous statement. During his cross examination conducted by Ld. Addl. PP for State he stated that he cannot say if date of incident was 02.01.2014. He denied that he had seen the faces of assailants, that the accused persons, were the assailants, that the accused persons were previously known to him, that he had named the accused persons before the police as the assailants, that he had compromised the matter with the accused persons outside the court and due to this reason, he was not deposing against the accused persons, that he had stated to the police that accused Suresh, Kishore, Manish and his associates had assaulted on them and that he was deposing falsely in order to save the accused persons having been won over by them. He admitted that statement Mark A was bearing his signatures and voluntarily explained that his signatures were taken by the police on some papers. This witness was confronted with his Page No.10 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
statements recorded under section 161 Cr.P.C qua the aforesaid facts denied by him and the said facts were found recorded in the statement under section 161 Cr.P.C.
However, it is admitted by witness that Mark 'A' bears his signatures at point 'A'. The witness was not cross examined by Ld. Defence counsels despite opportunity.
10. PW-3 IO/Inspector Ashok Kumar deposed that on 15.12.2014, he was posted at PS Dwarka North as SI, that investigation of the present case was entrusted to him by SHO concerned and accordingly, he received the case file from MHC(R), that on 23.06.2015, accused Suresh was got declared Proclaimed Offender from court concerned of Ld. MM vide order Ex. PW3/A, that on 23.06.2016, he was informed by Special Staff, South East District regarding arrest of absconded accused Suresh at PS Dwarka North, that on the receipt of said information, he came to the court concerned along with Ct. Rakesh where the accused Suresh was produced by the official concerned of Special Staff, South East District, that after getting permission from the court, accused Suresh was interrogated, that he was arrested vide arrest memo Ex. PW3/B, the disclosure statement of accused Suresh was recrded vide memo Ex. PW3/C and accused was sent to JC on that day, that he also received documents Ex. PW-5/D(including the copy of kalendra under Section 41.1 Page No.11 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
(c) CrPC regarding apprehension and arrest of accused Suresh ( Proclaimed Offender) from HC Bhagwan Singh, Special Staff South East District along with copies of DD no.15 dated 22.06.2016(running into 5 pages), personal search, arrest memo and conviction slip of accused Suresh), that on 27.06.2016 he again came to court where the accused Suresh Kumar was produced before the court from JC and the accused was granted PC remand on my application, that supplementary disclosure statement of the accused was recorded vide memo Ex.PW3/E, that pointing out memo Ex. PW-3/F was prepared by him, that he recorded the statement of Ct. Parveen, who was with him during that proceedings, that he along with accused Suresh reached at Najafgarh, ganda nala from where despite their best efforts, recovery of weapon of offence i.e. country made pistol (desi katta) could not be effected from nearby bushes and when accused was further interrogated about the said weapon then he further disclosed that a country made pistol and cartridge were thrown in the drain water in the night, that the accused showed his inability to tell the exact location of throwing the same, that accused Suresh then took them to the bus stand of Nangli dairy where accused disclosed that Kasim used to meet him there, from whom the said weapon of offence along with two live cartidges were purchased but despite their best efforts said Kasim could not be traced, that during further proceedings of investigation the statement of police officials of Special Staff, South East District was Page No.12 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
recorded and after completion of investigation, the chargesheet was filed in the court on behalf of the SHO concerned.
The witness was cross examined by ld. Defence counsel. During his cross examination conducted by ld. Defence counsel he denied, that he did not go to the Police Station for registration of FIR, that all the proceedings were done while sitting in Police Station or that he was deposing falsely at the instance of IO.
11. Accused admitted the factum of preparation and genuineness of FSL report No.FSL 2014/F-5330 dated 26.02.2016 Ex.P1, DD no.35 B dated 23.06.2016 Ex. P2 (WCt. Anita), FIR Ex.P12 (PW/HC Dharmapal (DO), Certificate u/s 65 B of Indian Evidence Act pertaining to the FIR of this case Ex.P13 given by HC Dharampal (DO), Crime scene report Ex.P9 prepared by ASI Pardeep Kumar, FSL report along with forwarding letter of FSL Ex.P8, Letter no.28 issued from the office of District Office, Rampur Ex.P10 regarding Arms License of one Ram Babu, Notice under Section 91 CrPC Ex. P11 issued from the office of District Magistrate Ramvan, superdarinama of vehicle no.DL 12 SE 7229 belonging to one Saket Ex.P3, Rukka of this case Ex.P4, Superdarinama of vehicle no. DL 6 S AM 0259 in the favour of Sh. Randhir Singh Ex.P5, Site plan Ex.P6, Seizure memo of blood stained tiles piece Ex. P7, Seizure memo of three cartidge of 12 bore Ex. P13, Seizure memo of parcel containing cloth of Ram Babu Ex.P14, Seizure Page No.13 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
memo of Arms License of Ram Babu Ex. P15, Seizure memo of Arms License of Akhilesh Ex. P16, Seizure memo of two 12 bore rifles Ex. P17, Seizure memo of three motorcycle Ex. P18, Sketch of three cartidges Ex.P19, Arrest memo of accused Kishore Kumar Ex.P20, Personal search of accused Kishore Kumar Ex. P21, Factum of recording of disclosure statement of accused Kishore Kumar Ex. P22, Factum of recording of supplementary disclosure statement of accused Kishore Kumar Ex.P23, Pointing out memo prepared at the instance of accused Kishore Kumar Ex.P24 u/s 294 Cr.PC without admitting the truthfulness of the contents of the same. Accordingly, respective witnesses (from serial no. 4 to 29) were dropped from the list of witnesses.
12. Thereafter, the prosecution evidence was closed vide order dated 01.12.2022 on the submissions of Ld. Sub. Addl. PP for State and the matter was fixed for recording of statement of accused persons.
13. At the stage of recording of statement of accused persons, it is submitted by the Ld. counsel for the accused persons that no incriminating circumstance has surfaced on record during the prosecution evidence against the accused persons and hence, recording of statement of accused should be dispensed with. Ld. Sub. Addl. PP for the State fairly conceded that prosecution has not been able to establish any incriminating material/ Page No.14 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
circumstance against the accused.
14. Submission of Ld. Substitute Additional PP for the State and defence Counsel are heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/EVIDENCE AND FINDINGS:-
15. The case of the prosecution is that on 01.01.2014, at about 10-11 pm, while PW-1 Ram Babu along with PW-2 Akhilesh was on duty at Delhi Jal Board Plant, one person came at the gate of the said plant who was trying to enter therein and that when they did not open the gate of the Jal Board, the said person abused them and threatened them that he would see them tomorrow(mai kal tumhe dekh lunga). On 02.01.2014, the accused persons namely Kishore Kumar, Suresh Kumar, Manish along with co-accused Tinku, Updesh Sadhu (absconding), Deep and Anand (both juvenile) formed an unlawful assembly and in furtherance of their common object, fired gun shot upon injured Ram Babu by using a deadly weapon and also caused grievous hurt to the complainant Akhilesh Kumar by using force and violence and that that the accused Kishore Kumar also used fire arm against Ram Babu without having valid license.
Page No.15 of 24 FIR No. 03/2014PS Dwarka North State vs Kishore Kumar & Ors.
16. Keeping in view the aforesaid version and in order to establish the guilt of the accused persons, it is imperative for the prosecution to establish the factum of presence of accused persons at the spot being members of unlawful assembly and the identity of accused persons as offenders who being members of the unlawful assembly (comprising of five or more members) indulged in one or more of the five objects as mentioned in section 141 Indian Penal Code.
17. Perusal of the record reveals that prosecution examined two eye witnesses ie PW-1 Ram Babu and PW-2 Akhilesh(complainant). Bare reading of the testimony of PW-1 shows that he stated in his examination in chief that the alleged incident happened on 01.01.2014.
He further stated about the manner of happening about the incident but he did not say anything about the involvement of the accused persons as members of unlawful assembly who committed the alleged acts with him and PW-2 in pursuance of their common object. He did not even identify accused Kishore as the person who had shot him.
In the cross examination conducted by the Ld. Sub. Addl. PP for the State, PW-1 denied the fact that the incident actually happened on 01.01.2014 and affirmed that the incident took place on 01.01.2014, which shows that PW-1 did not even tell about the actual date of happening of the incident which was 02.01.2014. In the further cross-examination conducted by the Ld. Page No.16 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
Sub. Addl. PP for the State, PW-1 further denied that Manish, Kishore and Suresh were working as guard in the plant and volunteered that only Kishore was working as a guard. He denied that Manish, Deepak, Suresh, Anand (younger brother of accused Kishore) and his associates gave beatings to him with dandas, that he was deliberately not identifying the accused persons being won over by them, that accused Manish, Kishore and Suresh were working as guard in the plant and that he was deliberately not stating the true facts of the case as he has been won over by accused persons and that he was deposing falsely. This deposition shows that PW-1 did not identify the accused persons as the offenders who were present at the spot on the day of incident and had committed the alleged offences. It is further seen from the cross examination of PW-1 conducted by Ld. Sub. Addl. for the State that PW-1 did not identify the accused persons as offenders despite his attention being drawn specifically to the accused persons by the Ld. Addl. PP for State. PW-1 even failed to identify the two motorcycles from the photographs shown to him as the same which were left by the accused persons at the spot. This testimony further shows that PW-1 did not even identify the motorcycle left at the spot which may have been used a circumstance against the accused persons and this failure of PW-1 to identify even the motorcycle further shatters the prosecution version of presence of accused persons at the spot. It is further evident from his testimony that he even did not support about the factum of recording of his statement by the police by deposing that he does Page No.17 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
not know if his statement was recorded by police or not.
These testimonies show that prosecution failed to extract any material in its favour despite detailed cross-examination of PW-1 and that the identity of the accused persons as offenders and their presence at the spot on 02.01.2014 as well as the presence of any of the accused persons on 01.01.2014 is not established.
18. Similarly, PW-2 deposed in his examination in chief that he does not remember the date, month of the incident, that he could not see the faces of the assailants and as such, he could not identify any of them, that he sustained injuries on his back and that he does not know anything more about this case. This testimony shows that he stated about the happening of the incident but not about the involvement of the accused persons or their presence at the spot.
19. In the cross examination conducted by the Ld. Addl. PP for State, he deposed that he cannot say if date of incident was 02.01.2014. He denied that he had seen the faces of assailants, that the accused persons were the assailants, that the accused persons were previously known to him, that he had named the accused persons before the police as the assailants, that he had compromised the matter with the accused persons outside the court and due to this reason, he was not deposing against the accused persons, that he had stated to the police that accused Suresh, Kishore, Manish and his associates Page No.18 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
had assaulted on them and that he was deposing falsely in order to save the accused persons having been won over by them.
20. This deposition of PW-2 shows that he failed to tell the exact date of the incident as well as about the factum of involvement of the accused persons in the alleged incident and their presence at the spot which further implies that prosecution failed to establish the involvement and identity of the accused persons as offenders despite detailed cross examination.
21. PW-2 admitted that statement Mark A was bearing his signatures and voluntarily explained that his signatures were taken by the police on some papers. This unrebutted voluntarily explanation further establishes that PW-2 even disowned the contents of the various documents prepared by the investigating agency during the investigation at his instance which thus renders the entire investigation nugatory.
22. Record shows that prosecution examined PW-3 Inspector Ashok Kumar who had taken the accused Suresh for recovery proceedings during police remand. He deposed that he took the accused Suresh to Najafgarh, ganda nala from where despite their best efforts, recovery of weapon of offence i.e. country made pistol (desi katta) could not be effected from nearby bushes and when accused was further interrogated about the said weapon then he Page No.19 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
further disclosed that a country made pistol and cartridge were thrown in the drain water in the night, that the accused showed his inability to tell the exact location of throwing the same and that accused Suresh then took them to the bus stand of Nangli dairy where accused disclosed that Kasim used to meet him there from whom the said weapon of offence along with two live cartridges were purchased but despite their best efforts said Kasim could not be traced. This testimony shows that nothing was recovered or discovered at the instance of accused Suresh despite efforts made during investigation.
23. It is evident that neither any fire arm or ammunition was recovered from the possession or at the instance of the accused persons. The fire arm and ammunition which was made a case property in the present matter was licensed double barrel gun belonging to the PW-2 Akhilesh and not to any of the accused persons. It is also not the case of the prosecution that the accused persons had snatched the said double barrel gun from PW-2 and thus had caused gun shot injury on the person of Ram Babu/PW-1.
24. It is also seen from the record that there is no other circumstance or eye witness of the incident to establish the identity of accused persons as offenders, which is necessary for establishing the case of the prosecution as discussed above.
Page No.20 of 24 FIR No. 03/2014PS Dwarka North State vs Kishore Kumar & Ors.
25. So, there is no incriminating material available on record to connect the accused persons with the commission of alleged offences i.e. to establish the identity of the accused persons as offenders, the presence of the accused persons at the spot as members of unlawful assembly and the fact that the accused persons had committed the alleged offences pursuant to common object.
26. In the present conspectus of facts, it is apt to refer to para 9 of the judgment titled as Dev Raj Arora vs State Crl. Appeal no. 301/1999 decided on 04.01.2012 by Hon'ble Justice Ms. Mukta Gupta wherein it has been held that only facts proved during trial which are incriminating in nature can be put to the accused and the facts that are not proved cannot be put to the accused.
27. Following the aforesaid mandate of the Hon'ble Delhi High Court and keeping in view the analysis of testimonies of PW-1 and PW-2 as discussed above, this court is of the view that prosecution has not been able to prove any substantially incriminating circumstance/ evidence against the accused persons and hence, there is no need to record statement of accused persons. Accordingly, recording of statement of accused persons is dispensed with.
Page No.21 of 24 FIR No. 03/2014PS Dwarka North State vs Kishore Kumar & Ors.
FINAL DECISION
28. In view of the aforesaid discussion and the present circumstances, as no substantially incriminating material is available on record, accused persons namely Kishore Kumar @ Pange, Suresh Kumar and Manish Kumar are acquitted of the charge punishable under section 307/149 IPC, 325/149 IPC, 147 IPC, 148/149 IPC. Accused Kishore Kumar is further acquitted for the charge punishable under section 27 Arms Act.
29. With respect to the offence punishable under section 174-A IPC for which accused Suresh Kumar was charged, it is seen from the record that he had pleaded guilty to the said charge.
30. Since the plea of guilt was made by the accused voluntarily and this court is satisfied that the plea of guilt was voluntary, without any fear, pressure and coercion, the same is accepted and the accused Suresh Kumar is convicted for the offences punishable u/s 174-A IPC.
31. Ld. Sub. Addl. PP for State submitted that compensation for state is not required as accused Suresh Kumar has pleaded guilty and thus saved the precious time and resources of the court as well as State.
Page No.22 of 24 FIR No. 03/2014PS Dwarka North State vs Kishore Kumar & Ors.
32. Submission heard on the point of sentence.
33. Ld. Counsel for convict Suresh prayed for a lenient view stating that convict remained in Judicial Custody for seven days and that he is poor person who is a private driver by profession and sole bread earner of his family. It is further submitted that convict is very regretful and will not commit any offence in future. Ld. counsel further stated that the convict Suresh Kumar has already been acquitted by this court in the main case and thus, most considerate punishment be awarded.
Record perused.
34. It is evident that convict have already suffered ordeal of criminal proceedings. Furthermore, convict himself voluntarily pleaded guilty and thereby saved the precious time of the court so that court can give more time for the cases which are more than 10 years old and he has already been acquitted in the main case. No previous conviction has either been alleged proved.
35. In these facts & circumstances, convict namely Suresh Kumar is hereby sentenced to imprisonment for the period already undergone for the aforesaid offence punishable under section 174-A IPC as well as fine of Page No.23 of 24 FIR No. 03/2014 PS Dwarka North State vs Kishore Kumar & Ors.
Rs. 3,000/- in default of payment of which the convict shall undergo SI for a period of one month. Fine paid.
36. Bail bonds and surety bonds already furnished on behalf of all the accused persons in compliance of Section 437 (A) Cr.P.C, are considered and accepted for a period of six months from today.
37. File be consigned to Record Room, after due compliance.
Announced in the Open Court (VIPLAV DABASS)
on 19.12.2022 ADDITIONAL SESSIONS JUDGE:
FAST TRACK COURT
DWARKA COURTS, SOUTH-WEST
NEW DELHI
Page No.24 of 24