Delhi District Court
Fir No. 179/10; State vs . Yatender Chauhan @ Babloo Page 1 Of 18 on 31 May, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 81/11
FIR No. 179/10
P.S. Mukherji Nagar
U/S: 308 IPC
STATE
Versus
YATENDER CHAUHAN @ BABLOO
s/o Sh. Bijender
st
r/o H. No. 169, 1 Floor,
village Dhakka, Delhi9
Date of Institution: 11112010
Date of arguments: 31052012
Date of judgement: 31052012
J U D G M E N T
1. The case of the prosecution, in brief, is that on 30042010, complainant Pramod Kumar along with his cousin Praveen had gone to supply milk at Dhaka village on motorcycle. At about 7:30 pm, complainant parked his motorcycle near Om Dairy, near Mini Market and went to supply milk in the gali and his cousin Praveen was standing near the motorcycle. At about 7:45 pm, when FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 1 of 18 he came back after supplying milk, he saw that 34 boys including Pankaj and Abhishek who were residents of Dhaka village and known to complainant, were beating his cousin Praveen with hockey and baseball stick. Pankaj was holding baseball stick and Abhishek was holding hockey stick. After beating Praveen accused persons ran away from the spot. PCR was called and injured Praveen was rushed to Trauma Centre. FIR was registered u/s 308 IPC. On 12052010, accused Yatender Chauhan @ Babloo was arrested at the instance of complainant and he gave disclosure statement. Co accused Pankaj was found to be juvenile and challan against him was filed in JJ Board whereas accused Abhishek could not be arrested. After completion of investigation, chargesheet was filed in the court for the offence u/s 308/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 308 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 10 witnesses. Statement of accused u/s 313 Cr.P.C. was recorded wherein he denied all the allegations made against him. The accused did not opt to lead defence evidence.
FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 2 of 18
4. I have heard the Ld. Defence counsel and Ld. APP for the State and have perused the entire records as well as the written arguments filed by the Ld. defence counsel.
5. The Ld. Defence counsel has argued that there is a delay in filing FIR. In third supplementary statement, the name of the accused has been mentioned. Why the accused was not named in the first statement. The injured Parveen has not named the accused, time and place of the incident. The injured named eyewitnesses namely Pankaj and Abhishek. Two other persons have not been arrested so far. The complainant Parmod in his statement Ex. PW1/A did not name the accused. According to the complainant, Pankaj and Abhishek were armed with the baseball danda and hockey stick but there is no mention in the said statement of the complainant that the other two persons were also armed. At the time of crossexamination, the complainant himself admitted in his statement that he did not give the name and description of the accused. Therefore, the statement Ex. PW3/A cannot be read against the accused. The injured/ PW4 admitted in his crossexamination that on 30042010, he was conscious and he had talked with the doctor but even that time, he did not name the accused which also corroborate with the statement of doctor/ PW9 FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 3 of 18 and MLC Ex. PW9/A. Thus, the Prosecution has failed to prove that accused was present at the spot and committed the alleged offence. In support of his arguments, Ld. Defence counsel has relied upon the judgements reported as Surendra & ors. Vs. State of Rajasthan, III (1995) CCR 215; Husna & Anr. Vs. State of Punjab, III (1996) CCR 209 (SC); Murugan Vs. State by Inspector of Police, Ottapidaram, 1993 CRI. L. J. 1259; Amarjit Singh Vs. State of Haryana, 1999 (1) CC Cases HC 153; Ganesh Bhavan Patel & Anr. Vs. State of Maharashtra, AIR 1979 SC 135; Jag Mohan @ Birju Vs. State, 1995 JCC 1; and Hardial Singh Vs. State of Punjab, 1992 (2) CC Cases 163 (SC). Whereas, the Ld. APP for the State has argued that the accused along with Pankaj and Abhishek and other boys gave beatings to the injured Parveen with hockey and baseball stick and after beating him they fled away from the spot. The injured sustained grievous injury due to aforesaid act of accused which is dangerous in nature as per the MLC Ex. PW9/A. In support of his arguments, Ld. APP for State has relied upon the judgements reported as Ramnaresh & Ors. Vs. State of Chhattisgarh, 2012 CRI. L. J. 1898 and State of UP Vs. Hari Mohan & others, AIR 2001 SC
142.
6. In view of the above arguments of the Ld. Defence FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 4 of 18 counsel and the Ld. APP for the State and the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused had committed the offence as per the charge framed against him or whether he has been falsely implicated in this case. PW1 Dr. Rajender Kumar, Asstt. Director (Biology), FSL, Rohini, Delhi deposed that on 25.10.2010, three sealed parcels as per forwarding letter received in the FSL from SHO, PS Mukherjee Nagar, Delhi in connection with this case on which seals were intact as per forwarding letter which were given serial No. 1, 2 and 2A on all the parcels and their contents were given Ex.1, 2 and 2A. He examined the exhibits biologically and prepared his detailed report vide Ex.PW1/A. The exhibits were also examined serologically and he prepared detailed report Ex. PW1/B. After examination, all the exhibits were turned into their respective parcels and sealed with the seal of RKJ, FSL, Delhi. PW2 WHC Rakesh deposed that on 01052010, she was posted as DO at PS Mukherjee Nagar from 5.00 pm to 1.00 am night and at about 11.15pm, she received rukka from IO HC Ram Chander on which basis, she got recorded FIR through computer operator as Ex.PW2/A. She also made endorsement on rukka vide Ex. PW2/B (OSR).
7. PW3 Pramod Kumar deposed that on 30042010, he FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 5 of 18 along with his cousin Praveen had gone to Dhaka village for supplying milk on a motorcycle. At about 7:30 pm, after parking the motorcycle near Om Dairy, he went inside for supplying the milk. Praveen remained standing near the motorcycle. After about 10-- 15 minutes, when he came back after supplying the milk, he saw that Pankaj, Abhishek, Yatender Chauhan @ Babloo and 3--4 other boys were beating his cousin Praveen with hockey and baseball dandas. He was also given a danda blow by one of them. Thereafter, they fled away from the spot. Someone informed the police and PCR van came at the spot and rushed Praveen to Trauma Center. PW3 also accompanied him to the Trauma Centre. He could not give statement on 30042010 as the condition of Praveen was serious and he was busy in looking after his treatment. On 01052010, police recorded his statement Ex. PW3/A. He correctly identified accused Yatender Chauhan @ Babloo present in court. He had shown the place of occurrence to the police and police prepared the site plan on his pointing out. PW3 further deposed that on 12052010, he came at PS Mukherji Nagar at about 7:30 pm to make inquiry about the case. From there, he was taken to Om Dairy near Dhaka village by the IO. Accused Yatender Chauhan, present in court, along with 3--4 boys came from the side FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 6 of 18 of village Dhaka. He immediately identified the accused who along with Pankaj, Abhishek and the other unknown boys had given beatings to his cousin Praveen on 30042010. Accused was apprehended by the IO with the help of Constable and PW3. Accused was arrested vide memo Ex. PW3/B and his personal search was conducted vide memo Ex. PW3/C. On interrogation, accused gave disclosure statement Ex. PW3/D. He handed over the bloodsoaked shirt of injured Parveen to the IO which was kept in a sealed pullanda by the police and seized vide memo Ex. PW3/E. On 15062010, he informed the IO that the name of father of Pankaj was Prem Singh who was resident of village Dhaka. In response to a leading question, PW3 admitted that IO had sealed the pullanda with the seal of ML. PW3 identified the shirt as Ex. P1 to be that of his cousin Praveen which he was wearing at the time of incident.
8. PW4 Praveen deposed that on 23042010, he had hot exchange of words with Pankaj and accused Babloo, present in court (correctly identified). On 30042010, he along with his cousin Pramod Kumar went to Dhaka village on motorcycle for supply of milk. At about 78 pm, Pramod went to Om Dairy for supplying the milk while he was sitting on the motorcycle. Accused Babloo along FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 7 of 18 with Pankaj, Abhishek and one more boy, whose name he was not aware, came there. Abhishek was having hockey stick, Pankaj was having baseball stick, accused Babloo and the other boy were having dandas. They started beating PW4 with baseball stick, hockey stick and dandas. His cousin Pramod came back after supplying the milk. PW4 became unconscious due to the head injuries. He was discharged from the hospital after 15--20 days. Initially, he could not give the statement as he was unwell and therefore gave the statement later. PW4 further deposed that on 24072010, he and Pramod were called by the police for the identification and they went to PS Mukherji Nagar where they identified Pankaj who was then arrested by the police. PW4 identified the shirt Ex. P1 which he was wearing at the time of incident.
9. PW4 was recalled for further examination and he deposed that in the year 2010, he was doing job of farmer. He had seen the accused on the day of incident only and prior to that accused was not known to him. Quarrel had taken place with Pankaj, Babloo, Abhishek and name of fourth person he could not recollect. He deposed that he knew accused present in the court namely Babloo who also gave him beating with a danda as well as FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 8 of 18 with a Hockey on his head. The associates of accused Babloo also gave him beatings with the dandas on other parts of his body as well as on his back. On 23/04/10, some hot words were exchanged between him and accused. On the day of incident, he was going with Parmod (son of his Tau) for supply of Milk. The box of milk touched with accused Babloo. Accused abused him on this account and he also abused him. At the time of incident, accused Babloo along with his associate Pankaj was also with him. The incident took place on 30/04/10 at around 7:45pm in Village Dhaka. He saw his brother Parmod coming from the gali and thereafter he became unconscious. When he regained consciousness, he found himself admitted in the hospital. He deposed that he was not aware who took him to the hospital. Police visited once in the hospital but he did not make any statement to the police as he was not in a position to give his statement. He remained admitted in the hospital for about 15 days and was also operated for his injuries. PW4 identified one linedar sky blue colour blood stained shirt as Ex. P1.
10. PW5 Ct. Amit Kumar deposed that on 30042010, he was posted as Ct. at PS Mukherji Nagar and doing job of DD Writer. On that day, at around 7:50 pm on receipt of information regarding quarrel at Parmanand Chowk, Amba Dairy through Lady Ct. Rekha FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 9 of 18 from Wireless Operator Room, he recorded vide DD no. 47B Ex. PW5/A (OSR). After recording the said DD entry, it was marked to HC Ram Chander for investigation. PW6 HC Dharamvir deposed that on 30.4.2010, he was posted as HC in PCR, NW Zone, Delhi on receipt of a call at about 7.50 pm from PCR, he along with staff reached at Om Dairy, Near Dhakka Village where one Parmod along with injured Parveen met them. They took the injured Parveen to the Trauma Center and got him admitted there. Parmod also reached at Trauma Center. Thereafter, they left from there. PW7 ASI Ram Chander deposed that on 30.4.2010, he was posted as HC at PS Mukherjee Nagar, Delhi and on receipt of DD No. 47B Ex.PW5/A, he reached at the spot i.e Om Dairy, Village Dhakka, near Mini Market where no one met him. He came to know that injured had been shifted to Trauma Center by the PCR. Thereafter, he reached at Trauma Centre where injured Parveen was found admitted. He collected MLC of Parveen who was declared unfit for statement by the Doctor. Nobody else met him in the hospital and DD No. 47B was kept pending. On the next day i.e on 01.05.2010, he again went to Trauma Centre where Parmod son of uncle of injured Parveen met him. The injured was still unfit for statement. He recorded statement of Parmod as Ex.PW3/A and made FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 10 of 18 endorsement Ex. PW7/A on the same. Thereafter he came back to PS and got registered the FIR. The further investigation was marked to ASI Madan Lal on the direction of SHO. He handed over the case file to ASI Madan Lal.
11. PW8 HC Devender Kumar deposed that on 12.05.2010, he was posted as MHC(M) at PS Mukherjee Nagar, Delhi. He proved the entry No. 2737/10 dated 12052010 of register no. 19 as Ex. PW8/A (OSR) and entry no. 2741/10 dated 15052010 of register No. 19 as Ex. PW8/B. He further deposed that on 25.10.2010, ASI Madan Lal took three sealed pulandas along with one sample seal from malkhana vide RC No. 99/21 Ex. PW8/C and deposited the same at FSL and deposited the receipt Ex. PW8/D with him. PW9 Dr. Satyendra Kumar CMO, Sushruta Trauma Centre deposed that on 30.04.2010, at about 8:45 pm one injured Parveen age 21 years, male was brought by I/C, PCR Van HC Dharamvir with alleged history of assault as told by the patient. Patient was conscious and oriented. He was examined vide MLC Ex. PW9/A. The patient was having swelling and laceration 3 x 1cm over left parietal region of skull and multiple abrasion over left side of face and chin. The patient was referred to Neurosurgery, General Surgery and ENT department for further management and FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 11 of 18 treatment. PW9 also identified the signature of Dr. Nimit on MLC at points B and C and who declared the patient unfit for statement on 30.4.2010. PW9 also identified the signatures and handwriting of Dr. Gaurav Gupta, Radiologist on Xray report No. 1847 Ex. PW9/B in respect of injured Parveen Kumar at point A prepared by Dr. Gaurav Gupta. As per the report, patient was not having any bone injury. PW9 also identified the handwriting and signatures of Dr. Manas SR on MLC Ex. PW9/A of injured Parveen at point D wherein patient was declared unfit for statement on 15022010 and handwriting and signatures of Dr. Abhinav Sahu on xray report Ex. PW9/B at point A of injured Parveen. As per the Xray report, the rd patient was having fracture on left clavicle (chest) in middle 1/3 . On rest of the Xrays, there was no bone injury seen.
12. PW10 ASI Madan Lal deposed that on 01.05.2010, he was posted at PS Mukherji Nagar, Delhi and on receipt of copy of FIR and original rukka through W/HC Rakesh for investigation, he along with complainant Parmod reached in front of Om Dairy, Mukherji Nagar and prepared site plan Ex. PW10/A at the instance of Parmod Kumar. He made search for the accused but he was not traceable. He recorded supplementary statement of complainant and he was discharged. Thereafter, he returned to PS. HC Ram FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 12 of 18 Chander handed over to him DD No. 47B Ex. PW5/A and MLC of injured Parveen. He recorded statement of HC Ram Chander. On 05.05.2010, he went to Trauma Centre where injured Parveen was declared unfit for statement by the Doctor. He made search for the accused in village Dhakka but he was not traceable. On 10.5.2010, he again visited Trauma Centre and injured was still unfit for statement. Accused was not traceable. He also recorded statement of PCR official namely HC Dharamvir. PW10 further deposed that on 12.05.2010, complainant Parmod came to PS and he along with Parmod and Ct. Krishan went in search of accused and reached at MCD Store, Parmanand Colony near Village Dhakka. Threefour boys came there and complainant pointed out towards accused present in the court. He was apprehended and after interrogation, accused was arrested in this case vide arrest memo Ex. PW3/B and his personal search memo Ex. PW3/C was also prepared. Thereafter he recorded disclosure statement of the accused as Ex. PW3/D. Accused was left in the custody of Ct. Jitender and PW10 went to attend emergency call. Complainant Parmod was also remained at the spot. After some time, he again came to place where accused was apprehended and complainant Parmod handed over bloodstained shirt of Parveen. PW10 prepared sealed FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 13 of 18 pulanda of shirt and sealed with the seal of ML and seized vide seizure memo Ex. PW3/E. He recorded statement of Parmod and discharged him. Thereafter, he came back to PS and deposited the case property in the malkhana and accused was got medically examined. Accused was put in the lockup of PS Model Town. On 13.5.2010, accused was produced in the court and sent to J/C.
13. PW10 further deposed that on 15.05.2010, he again visited Trauma Centre where injured was still unfit for statement. He collected blood sample of injured by moving an application to CMO. Two sealed bottles containing blood sample of Parveen and one sample seal was handed over to him which he seized vide seizure memo Ex. PW10/B. He also recorded statement of Dr. Mansh. Thereafter, he came back to PS and deposited the case property with the MHC(M). He also searched for other accused persons namely Abhishek, Pankaj and one other boy whose name could not be revealed. On 16.05.2010, injured Parveen was discharged from the hospital. PW10 visited house of Parveen to record his statement but he refused. On 15.06.2010, he recorded the statement of injured Parveen who disclosed the name of one of the coaccused as Pankaj s/o Prem Singh r/o Village Dhakka but he was not traced at his house. He made search for remaining accused FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 14 of 18 but they were not traceable. He collected result of MLC of Parveen which came as dangerous. On 13.07.2010, anticipatory bail of accused Pankaj was moved and as per his date of birth he was juvenile. PW10 recorded the statement of Principal of school of accused Pankaj. He formally arrested accused Pankaj on 24.7.2010 and on the same day, injured Parveen and complainant came to PS and they identified him. On 25.10.2010, the exhibits were sent to FSL. PW10 prepared the challan and submitted the same in the Court. During trial, he collected result of FSL and filed the same in the Court. PW10 identified the shirt as Ex. P1.
14. It is evident from the examination in chief of PW3/ complainant that he was also given a danda blow by one of Pankaj, Abhishek, Yatender Chauhan @ Babloo and 34 other boys. Whereas, the complainant in his statement Ex. PW3/A has not mentioned that he was also given a danda blow by one of them. PW4 in his examinationinchief deposed that he became unconscious due to the head injuries. When he regained consciousness, he found himself admitted in the hospital. PW9 Dr. Satender Kumar also deposed that on 30042010, Parveen was brought by I/C PCR van HC Dharamvir with alleged history of assault and the patient was conscious and oriented. It is also FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 15 of 18 evident from the crossexamination of PW3 that he admitted that he neither gave the name nor the description of accused (Yatender Chauhan @ Babloo) in his statement Ex. PW3/A. PW3 also admitted in his crossexamination that he had given the names of Pankaj and Abhishek only in the statement Ex. PW3/A. PW3 further admitted in his crossexamination that in Ex. PW3/A, he stated that Pankaj was having baseball danda in his hand and Abhishek was having hockey stick in his hand. During crossexamination, PW4/ injured admitted that he gave no statement to the police in the hospital and he visited the PS for the first time on 24072010 and then his statement was recorded. PW4 also admitted in his cross examination that in his statement to the police, he gave only one name of Pankaj regarding quarrel on 23042010. PW4 also admitted that he went to the hospital on 30042010 and he was conscious and talked with the doctor. PW4 also admitted that on 30042010, he did not name the accused Babloo in the MLC. It emerges from the aforesaid testimony of PWs that neither PW3 in his statement Ex. PW3/A nor PW4 in his statement dated 23042010 and in the MLC on 30042010 named the accused Yatender Chauhan @ Babloo. Whereas, Pankaj and Abhishek have been armed with the baseball danda and hockey stick in their hands FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 16 of 18 respectively. Further, the accused Yatender Chauhan @ Babloo was not named in the FIR. In Amarjit Singh Vs. State of Haryana, 1991 (1) CC Cases, HC 153 it was held by the Hon'ble High Court of Punjab and Haryana at Chandigarh that accused not named in FIR. Later, added after 12 hours by supplementary statement. Accused was unarmed. It did not attribute injury to anyone. Bail was granted.
15. Therefore, I find that there are major contradictions in the statement of the complainant and the testimonies of PWs. There is a settled proposition of law that prosecution case would fall if the contradictions are major and go to the root of the matter and not otherwise. In the case of State of Rajasthan Vs. Smt. Kalki, AIR 1981 SC 1390, it was observed that normal discrepancies in evidence are those which are due to normal errors of observation or errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 17 of 18 material discrepancies do so. In the present case, the Prosecution has not established its case against the accused Yatetnder Chauhan @ Babloo that he was present at the spot and committed the offence as charged. The aforesaid judgements relied upon by the Ld. APP for the State are not applicable to the facts and circumstances of the present case.
16. In view of my aforesaid discussion, I am of the considered opinion that prosecution has failed to prove its case against the accused Yatender Chauhan @ Babloo beyond reasonable doubt, benefit of which goes in favour of accused. The accused Yatender Chauhan @ Babloo is acquitted. His bail bond is extended for a period of six months u/s 437A Cr.P.C. Case property be confiscated to the State after expiry of period of limitation for filing appeal. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 31052012 FIR No. 179/10; State Vs. Yatender Chauhan @ Babloo Page 18 of 18