Delhi District Court
Fir No. 164/14 State vs . Nikhil Kumar Etc. Page No.1 on 9 August, 2017
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.7378/16 (old no.170/15)
ID No. 02406R0251632015
FIR No.164/14
U/s: 308/323/342/ 34 IPC
Police Station : Safdarjung Enclave
State
Vs.
1) Nikhil Kumar S/o Sh. Ganesh
R/o 51-A, Arjun Nagar, Safdarjung Enclave
New Delhi
2) Golu @ Gaurav S/o Sh. Puran
R/o G-55, Arjun Nagar, Safdarjung Enclave
New Delhi
3) Deepak Kumar S/o Sh. Pawan
R/o C-49/2, Arjun Nagar, Safdarjung Enclave
New Delhi
Date of Committal:18.09.2015
Final arguments concluded : 09.08.2017
Judgment pronounced on:09.08.2017
JUDGMENT
1. Accused Nikhil Kumar, Golu @ Gaurav and Deepak Kumar have been tried and prosecuted for the offences punishable u/s 323/342/308/34 of Indian Penal Code. Prosecution case as emerging out of charge sheet is as under:-
On 27.02.2014, SI Janender received DD no.67B regarding MLC no.414411/14 and 414412/14 upon which he alongiwth HC Raj Kumar visited AIIMS Trauma Centre and found injured Kamal and Rahul admitted vide aforementioned MLCs. As the injured were FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.1 reported to be fit for statement by the concerned doctor therefore, IO/SI Janender recorded statement of injured Kamal wherein he stated that on 27.02.2014 at about 7:30 pm he was informed by Shiva, who was known to him, on telephone that Nikhil, Deepak, Golu and few more boys had been troubling him for some time and on that day he had been caught by them. After receiving said information, he immediately rushed to rescue Shiva and reached at house no.50-51 Arjun Nagar, S.J. Encave, New Delhi on his motorcycle and there he found present the boys namely Nikhil, Deepak, Golu and few more boys whom he could identify if shown to him. He tried to talk to said boys but in the meantime, Nikhil hit him on his head with an iron rod and also asked Deepak and Golu to beat him and on his asking Deepak picked up one brick lying nearby and hit the same on his (injured's) head. Golu also hit the injured with a brick, Deepak hit him with a baseball on the left leg and they all started beating him. In the meantime, injured's brother namely Rahul also came there and he tried to save the injured from the clutches of the accused persons but, he was also beaten up by the accused who were saying that "aaj isko maja chakha dete hai tatha juthe case mein fasa bhi denge".
2. On the aforementioned statement of the injured Kamal, FIR u/s 323/308/34 IPC was registered and investigation was assigned to SI Yogesh Kumar who alongwith HC Raj Kumar visited the spot in front of 51-C Arjun Nagar where SI Janender, Shiv Raj, Arjun and Mridul Raj met him. IO recorded statement of Shiv and Mridul u/s 161 Cr.P.C., at the instance of injured Rahul he also prepared site plan of the place of occurrence. Since it was raining on that night no exhibits could be lifted from the spot. Efforts were made to arrest the accused persons. Since the accused persons were evading their arrest, NBWs FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.2 were got issued by moving application before the concerned court. Later on, upon an information of a secret informer all the accused persons were arrested from their respective homes. Disclosure statement of accused persons were recorded and on their pointing out, the pointing out memo of place of incident was prepared. During investigation, IO came to know about one eye witness and recorded his statement. The opinion of the doctor was taken upon the MLC of injured and injuries were opined to be grievous. After completing the investigation, the IO filed the charge sheet u/s 323/308/34 IPC against all the three accused persons.
3. Vide order dated 12.01.2016, the charge was framed against the all three accused persons for the offences punishable u/s 342/323/308/34 IPC to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution cited 12 witnesses. During trial, prosecution examined only four public witnesses including the injured namely Rahul, Kamal Kishore and Mridul Raj and an eye witness Shiv Raj. After examining said four public witnesses, PE was closed as all the injured persons as well as the eye witness turned hostile and they failed to support the prosecution case in its entirety. Other witnesses cited in the list were the doctors who prepared the MLCs and the police officials who were the part of investigation. In view of the fact that material witnesses had turned hostile, no useful purpose would have been served by examining other remaining witnesses, whose versions as per their statements u/s 161 Cr.P.C., were nothing but in the nature of corroborative evidence. Hence prosecution evidence was closed. SA was also FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.3 dispensed with as no incriminating material came to be adduced on record so as to be put to accused u/s 313 Cr.P.C.
5. I have carefully perused the entire material available on record and heard the arguments from both the sides.
6. PW1 Rahul, who is one of the most material witnesses as he is not only the victim of offence but the FIR was also lodged on his statement. He in his examination in chief deposed that he did not remember the date, month or year of alleged incident and also did not know as to who had caused him injuries. On the date of incident, at about 7:30-8:00 pm, when he was present near Shiv Mandir, Arjun Nagar, there occurred a quarrel between some persons and someone from them gave a danda blow on his head due to which he became unconscious and regained his consciousness in Trauma Centre, AIIMS, where he also found his elder brother Sandeep who took him back home after his treatment.
7. As the witness turned hostile, he was allowed to be cross examined by Ld. Addl. PP but, even in his cross examination, PW1 did not change his stand and reiterated his version given in the examination in chief. The contents of his statement Ex. PW1/PX put to PW1 in the form of suggestions were also categorically denied by PW1. Upon being confronted with his statement Ex. PW1/PX from portion A to A, he (PW1) he denied having known any person namely Kamal Kishore or even the date of incident and his statement recorded by the police. Upon being confronted with his statement Ex. PW1/PX from portion B to B, he (PW1) denied the suggestion that he told the police that he saw Nikhil, Deepak, Gaurav and some other FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.4 boys were beating his friend Kamal Kishore with iron rod and baseball bat. Upon being confronted with his statement Ex. PW1/PX from portion C to C, he (PW1) further denied the suggestion that he had told the police that when he tried to intervene in order to save his friend Kamal Kishore, he was beaten by Golu and later on Deepak and other boys also started beating him mercilessly. He further denied the suggestion that that accused Nikhil, Golu and Deepak in the court were the same persons, who were named by him in his statement to the police. He denied the suggestion that he had been won over by accused persons or that due to fear of accused persons, he was not telling the true facts before the court.
8. PW2 Kamal Kishore is another injured. He has also not supported the case of prosecution and deposed that about 3 years back, while he was passing through Arjun Nagar on his motorcycle, he received a call on his mobile, he stopped his motorcycle and was talking on his mobile, suddenly a crowd came towards him and hit on his head from behind with stone and brick due to which he fell down and became unconscious. He had not seen the person, who had hit him from behind. When he regained his consciousness, he found himself in the Trauma Centre AIIMS hospital. Police came at the hospital and they inquired about the incident and he told them that he had not seen the accused persons, who hit him on his head and other parts of body, he was discharged on the same day but his treatment continued for about two months.
9. As the said witness also turned hostile, he was also cross examined by Ld. Addl. PP after taking permission of the court. Even in his cross examination, PW2 did not budge from his stand and FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.5 reiterated same version even in cross examination by Addl. PP. Upon being confronted with Statement Ex. PW2/A, PW2 categorically denied to have stated to the police that on 27.02.2014 at about 7:30 pm, a boy namely Shiva who was known to him had called him on phone or that he told him that Deepak, Golu, Nikhil and some other boys had apprehended him and further asked him to reach the spot or that he went to the house no. 50/51, Arjun Nagar, Safdarjung Enclave near Poonam Dhaba on his motorcycle no. DL-14SC-0004 or that he found Nikhil, Deepak, Golu and some other boys present there. He further denied to have stated to the police that Nikhil had hit him on his head with iron rod and asked Deepak and Golu too to beat him or that Deepak and Golu hit him with brick on his head or that Deepak had also hit him with baseball stick or that in between his friend Rahul had come to the spot and intervened to save him but he was also beaten by them. PW2 did not identify the accused Nikhil, Golu and Deepak and denied being won over by them.
10. PW3 Shiva Raj is an eye witness, who in his examination before court deposed that he had not seen any incident. He further deposed that about 3 years back, it was on the day of Shivratri, he was present near Shiv Mandir, Arjun Nagar, he was preparing for the worship of Shivratri, he heard a loud noise from behind and lot of people were fighting among themselves. After sometime people started throwing stones, he came near table and sat on the side of table in order to save himself from the pelting of stones, for quite some time, there was lots of hustle and bustle and police also reached at the spot and the crowd started fleeing away after arrival of police. Later on, police inquired from him. PW3 further deposed that he had not seen any incident there.
FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.611. Ld. Addl. PP declared the witness hostile, PW3 was allowed to be cross examined by Ld. Addl. PP but, even in his cross examination he did not depose anything against the accused. Upon being specifically confronted with his statement Ex. PW3/A, he denied that on 27.02.2014 at about 7:00 pm he was restrained near his house by Nikhil, Deepak and Golu near Poonam Dhaba or that they asked him to bring three leg piece of chicken from Rajender dhaba or that he told them that he did not have money or that accused told him that they would not let him go anywhere if he (PW3) did not fulfill their demands or that he (PW3) was slapped by them. He further denied that he had called Kamal on telephone and narrated the whole story to him and also called his brother Bhola, Kamal who had reached at the spot on motorcycle or that in the meanwhile his brother Mridul @ Bhola also reached at the spot or that they rescued him (PW3) from the accused persons and sent him (PW3) back to his home or that later, he came to know that accused Nikhil, Deepak and Golu had badly beaten Kamal or that when he came to the spot , he found that Rahul and Kamal had already been taken to hospital by the PCR van. PW3 also did not identify the accused persons. PW3 categorically denied that Kamal Kishore was beaten by the accused persons with iron rod, brick and baseball stick or that accused had caused him injuries. He further denied that he had been won over by the accused persons or he was deposing falsely in order to save them or that he was deliberately not identifying the accused Nikhil, Golu and Deepak, being won over by them.
12. PW-4/Mridul Raj @ Bhola is also one of the injured and brother of the eye witness Shiv Raj. He deposes that he does not FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.7 remember the exact date, it might be 26/27.02.2014 around 7:00- 8:00 pm while he was going to Green Park from his home to buy some medicine and reached near 51-C, Arjun Nagar, he saw some crowd and some policemen present there. Police was making inquiries about an incident of quarrel from the persons present there. Police made inquiries from him also but he told the police that he did not know anything about the incident.
13. As the said witness also turned hostile, he was also allowed to be cross examined by Ld. Addl. PP but, even in his cross examination he did not depose anything against the accused. Despite being confronted with the contents of his statement Ex. PW4/PX, he did not support the prosecution case and categorically denied to have made any such statement to police. He categorically denied that he was deliberately not identifying the accused or not deposing the true facts of this case due to fear of the accused persons or that he had been won over by the accused persons, though he admitted that accused persons present in the court were the residents of same locality where he was residing.
14. In view of above testimony of prosecution witnesses, prosecution has miserably failed to bring home the guilt of accused. There is no iota of evidence on record to connect the accused with commission of alleged offence. All the three injured and one eye witness have though stated regarding infliction of injuries on the date of incident but they denied having seen the offenders, who inflicted them injuries. In view of complete hostile version of said material witnesses, prosecution has miserably failed to prove the charges against any of the accused. Acordingly, all the three accused Nikhil FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.8 Kumar, Golu @ Gaurav and Deepak Kumar are acquitted of the charges of offences punishable u/s 323/342/308/34 of Indian Penal Code. Bail bonds/surety bonds stand cancelled and discharged. File be consigned to Record Room.
Announced in open Court on 09.08.2017 (Sunena Sharma) Additional Sessions Judge-03 (South) Saket Courts, New Delhi FIR No. 164/14 State vs. Nikhil Kumar etc. Page No.9