Delhi District Court
State vs . Sanju And Ors on 3 December, 2019
FIR No.385/2013
State Vs. Sanju and ors
Police Station : Sultan Puri
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 608/2018
CNR no. : DLNW010092832018
State
Vs
1. Sanju
S/o Sh. Babu Lal
2. Mannu
S/O Sh. Babu Lal
Both R/o H.No. C373, Ground Floor,
J.J.Colony, Shiv Vihar,
Hastal Uttam Nagar, Delhi
FIR No. : 385/13
Police Station : Sultan Puri
Under Section : 307/326/341/174A IPC
Date of Institution in Sessions Court : 24.08.2018
Date when judgment reserved : 03.12.2019
Date when judgment pronounced : 03.12.2019
JUDGMENT
1. The facts of the case in brief are that this FIR was registered on the complaint of complainant Sh. Gopal Solanki wherein he stated that on 25/6/2013 at about 1:30 p.m. he had come home to take lunch and at that time he was informed by a young girl that his sister Page No. 1 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri Rami was being beaten by her husband Ashok and when he reached there, he saw that his brother in law Ashok was giving leg blows to his sister (wife of Ashok) and he rescued his sister. In the meantime his sister Rami called at 100 number and Ashok was taken away by the police. Subsequently, in the evening at about 6:30 p.m when he was returning home two boys namely Ajay and Walia @ Balkishan cught him on the way and in the meantime Ashok and his brothers Sanju and Mannu also came there and he was caught by Sanju and Mannu and Ashok stabbed him with knife on his stomach as a result of which he received injuries. All the culprits fled away from the spot. A person namely Lovely took him to Sanjay Gandhi Hospial where his statement was recorded by the police. After the registration of the FIR, investigation was carried out by the police. Accused Ashok, Ajay and Balkishan @Walia were arrested. Accused Sanju and Mannu could not be arrested. On completion of the investigation, main chargesheet was filed in the Court with respect to the accused Ashok, Ajay and Balkishan @ Walia.
2. On compliance of Section 207 Cr.P.C, the chargesheet was committed to the Court of Sessions by the Court of Ld. MM.
3. After conducting the trial, all the said accused namely Ashok, Ajay and Balkishan @ Walia were acquitted by the Sessions court vide judgment dated 5/8/2015.
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4. Subsequently accused Sanju and Mannu were arrested by the police on 17/7/2018 and supplementary chargesheet was filed by the police in the court qua them.
5. After filing the supplementary chargesheet vide order dated 13/11/2018, my Ld. Predecessor court, framed charge under Section 307/341/34 IPC and under Section 174A IPC against both the accused to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has examined in total 9 witnesses.
PUBLIC WITNESSES
7. PW9 Sh Gopal Solanki is the complainant, PW6 Smt. Rami was the sister of the complainant and PW1 Sh. Lovely was the eye witness. Their testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
8. PW3 Ct. Naveen was the DD writer who reduced the information in roznamcha vide DD no 95B ExPW2/A with respect to call received from Sanjay Gandhi Memorial Hospital regarding bringing of injured Gopal vide MLC 11438.
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9. PW4 Ct. Raj Singh has deposed that with the permission of court, accused Sanju and Manu were arrested vide Ex. PW4/A and Ex. PW4/B respectively.
10. PW5 HC Dhan Singh has deposed in sync with PW8 SI Chetan with whom he remained in the investigation.
11. PW7 ASI Prem Singh was the subsequent IO who with the permission of the court interrogated the arrested both the accused persons. Arrest memos have been exhibited as Ex. PW4/A & Ex. PW4/B.
12. PW8 SI Chetan was the IO of the case. He has deposed that on receipt of DD No. 95B Ex. PW8/A1 he alongwith Ct. Dhan Singh went to SGM Hospital where Gopal S/o Billu was admitted vide MLC No. 11438 with alleged history of assault. He recorded the statement Ex. PW8/A of injured Gopal and prepared rukka Ex. PW8/B and got the case registered through Ct. Dhan Singh. He proved site plan as Ex.PW8/C. He recorded statement of Lovely and supplementary statement of injured Gopal. On 15.07.2013, he alongwith Ct. Naresh went to Shiv Vihar near Uttam Nagar and arrested accused Ashok Kumar vide arrest memo Ex. PW8/D and took his personal search vide memo Ex. PW8/E. He had also collected sealed pulindas pertaining to injured Gopal which were given by doctor after his medical examination and seized the same vide memo Ex. PW8/F. Page No. 4 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri MEDICAL EVIDENCE
13. PW2 Dr. Bina, CMO, SGM Hospital, Mangol Puri has examined injured Gopal, 20 years male vide MLC Ex. PW11/A. The patient was referred to SR surgery for further management where patient was examined by Dr. Madhur and on the basis of examination by SR Surgery, nature of injury was opined as grievous DOCUMENTS ADMITTED BY THE ACCUSED PERSONS
14. On 30/11/2019 both the accused persons admitted factum of recording of FIR no. 385/2013 PS Sultan Puri and the copy of DD no. 95B dated 25/6/2013 and in view of the said admission, the said documents were exhibited as ExPX1 and ExPW8/A1 respectively.
WITNESSES DROPPED BY THE STATE
15. On 30/11/2019 Ld. Addl. PP for the State dropped PW Ct.
Naresh being repetitive in nature to SI Chetan who had been examined as PW8.
STATEMENT OF ACCUSED PERSONS
16. After completing the prosecution evidence, statement of the accused persons was recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances Page No. 5 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri appearing in evidence was put to them, which have been denied by them in toto.
17. The accused persons have taken defence that they are innocent and falsely implicated in this case.
ARGUMENTS ON BOTH SIDES
18. I have heard the ld. Addl. PP and Ld. counsel for the accused persons and have perused the material available on record.
19. It is argued by the Ld. Counsel for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubts. It is argued that there are lot of contradictions in the statement of complainant Sh.Gopal (PW9) and his sister Rami who has been examined as PW6 which makes it clear that the accused were falsely implicated in this case due to vengeance and hence they are entitled to be acquitted.
20. Per contra, Ld. Addl. PP for the State has controverted the contentions of Ld. Counsel for defence. It is argued that prosecution has been able to establish its case beyond any shadow of doubt. It is contended that having regard to the testimony of PW6 Smt. Rami and PW9 Sh. Gopal Solanki, whose testimony is truthful and reliable and is of sterling quality coupled with the other evidence on record in the form of subsequent investigation conducted by the police, the Page No. 6 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri prosecution has been able to prove its case.
FINDING OF THE COURT Ocular evidence
21. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
22. In the present case the entire case of the prosecution is based upon the eye witness account given by the victim Sh. Gopal Solanki (PW9) who has deposed about the incident which had taken place at the spot. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witness as well as his sister Smt. Rami (PW6), hence it is necessary for this Court to first determine whether they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the Page No. 7 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
23. Sh. Gopal Solanki (PW9) has deposed that on the fateful day, while he was returning home after work, in the evening, Bal Kishan @ Walia, Ajay, Sanju and Mannu came near to him and they started altercation with him which continued for about fifteen minutes and thereafter accused Ashok came from my backside and stabbed in my Page No. 8 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri stomach. He further deposed that he was caught by accused Sanju and Mannu who are the brothers of accused Ashok while he was stabbed by Ashok.
24. It is relevant here to state that complainant Sh. Gopal Solanki was earlier examined in the court on 27/2/2015 as PW9 during the trial of accused Ashok Kumar, Ajay and Balkishan @ Walia and he did not support the case of prosecution. AT that time he deposed in court that on the fateful day while he was returning home, it was dark and somebody stabbed him with knife and he could not see the face of the persons who assaulted him with knife. He further stated that he did not see the offenders.
25. Since he was not supporting the case of prosecution he was cross examined by Ld. Addl. PP for the State in which he categorically denied the suggestion of the State that accused Ajay and Walia had restrained him on the way or that Ashok along with Sanju and Mannu came there or that Sanju and Mannu caught him or that Ashok inflicted knife injuries upon him. He volunteered that since it was dark, he could not see their faces. Regarding the version of the morning incident, he stated that Ashok only slapped his sister once or twice and he did not give any other kind of beatings.
26. Hence, the deposition of the complainant Sh. Gopal Solanki given in this court on 30/11/2019 during the trial of accused Sanju and Mannu is in complete contradiction to what he had deposed on Page No. 9 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri 27/2/2015 during the trial of other accused persons. As stated above, if it was dark and if he had not seen the faces of the culprits as deposed by him on 27/2/2015, how could he say now during the trial of accused Sanju and Mannu that they had committed the offence in question along with their other accomplices.
27. There are other contradictions also because in his initial statement ExPW8/A he had stated that initially he was stopped by Ajay and Walia on the way and subsequently Ashok and his brother Sanju and Mannu came there and he was stabbed by Ashok whereas in his testimony as PW9 he has stated that initially accused Balkishan @ Walia, Ajay, Sanju and Mannu started altercation with him and subsequently Ashok came and stabbed him from the back side.
28. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012 :
Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements.Page No. 10 of 13 FIR No.385/2013
State Vs. Sanju and ors Police Station : Sultan Puri
29. In the present case, in my view, the contradictions mentioned above, in the testimony of the victim, are vital in nature and it goes to the root of the matter and there is nothing on record to explain about the same . Further, he has very conveniently changed his version and deposition in comparison to his deposition given earlier during the trial of other accused persons and in these circumstances, there is no surety that he is speaking truth this time and hence in totality of the circumstances, this witness does not appear to be very reliable, dependable and trustworthy, whose testimony can be used to convict the accused persons.
30. PW6 Smt. Rami has claimed that after coming to know about the incident in the evening, she came at the spot and on seeing her, the assailants fled away from the spot and that she had seen all the accused persons namely, Ajay, Walia @ Balkishan, Sanju, Mannu and Ashok fleeing away from the spot.
31. She was cross examined by Ld. Counsel for the defence in which she stated that she had stated to the police that she saw accused Mannu and Sanju while fleeing from the spot. However she was confronted with her statement u/s 161 CrPC which is ExPW6/DA wherein it was not so recorded. Hence, her claim that she saw the assailants fleeing from the spot does not find mention in her statement u/s 161 CrPC. However, her bother Gopal Solanki in his initial statement ExPW8/A did not claim that his sister and mother had also come at the spot and hence there is contradiction in their statement Page No. 11 of 13 FIR No.385/2013 State Vs. Sanju and ors Police Station : Sultan Puri on this count as well.
32. Further, Smt. Rami has claimed in her testimony that she along with her mother took her brother Gopal Solanki to hospital whereas Gopal Solanki in his complaint ExPW8/A had stated that he was taken to Sanjay Gandhi Hospital by a person namely, Lovely. The factum of his taking to hospital by public person namely Lovely, makes the presence of Smt.Rami at the spot highly doubtful.
33. It is very important to mention that the said public person namely Lovely who allegedly took injured to hospital has been examined as PW1 by the prosecution but he has not supported the case of prosecution regarding the fact that he has seen the accused persons causing injury to the complainant. He has only deposed that while he was passing, he saw one person in injured condition and as he was bleeding, he took the said injured to Sanjay Gandhi Hospital by rickshaw and that he did not know who caused injury to him.
34. The said Lovely (PW1) was cross examined by Ld. Addl. PP of the State in which he is clearly denied the suggestion of the State that on 25/6/2013 at about 6:30 p.m. he has seen five boys manhandling the said injured or that four boys had caught hold of that boy and one of those five boys stabbed him with knife or that when he went near them all of them fled away from the spot. There is nothing in his cross examination to doubt his testimony.
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35. The testimony of the remaining witnesses only relates to the investigation of the case and there is nothing in their statement to connect the accused persons with the offence in question.
36. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
37. In view of the above discussion, in the opinion of this court, it can be said that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, the accused persons are acquitted from the charges framed against them .
38. The case property, if any, is confiscated to the state and the same may be destroyed after the period of appeal and if appeal is preferred, subject to the order of Ld. Appellate court.
39. File be consigned to Record Room.
Announced in the open court (Deepak Garg)
on this 03rd day of December, 2019 ASJII, NorthWest
Rohini: Delhi
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