Delhi District Court
State vs Mukesh Kumar on 6 July, 2024
IN THE COURT OF Ms. VANDANA JAIN
ADDITIONAL SESSIONS JUDGE-03 & SPECIAL JUDGE
(COMPANIES ACT) SOUTH WEST: DWARKA COURTS:
NEW DELHI
(MORE THAN 7 YEARS OLD)
CNR No. DLSW01-009748-2020
SC No. : 502/2020
State Vs. : Mukesh Kumar & Anr.
FIR No. : 1083/2015
U/s. : 186/353/427/435/308/34 IPC
P.S. : Vikas Puri
1. Date of commission of offence : In the intervening night of
09/10.11.2015
2. Date of institution of the case : 27.11.2019
3. Date of committal to Sessions Court : 23.12.2020
4. Name of the complainant : ASI Ramphal
5. Name of accused, parentage &
address : (1) Mukesh Kumar
S/o Sh. Bhim Singh
R/o Jhuggi No. 65/37,
Indra Camp No.3,
E Block, Vikas Puri,
New Delhi.
(2) Sunil
S/o Sh. Mahander
R/o Jhuggi No. 65/37,
Indra Camp No.3,
E Block, Vikas Puri,
New Delhi.
SC No. 502/2020
State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 1 of 11
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 04.06.2024
10. Final order : Acquitted
11. Date of final order : 06.07.2024
JUDGMENT
1. The brief facts of the prosecution case as succinctly stated are that FIR was registered on the basis of complaint of ASI Ramphal, who stated that on the intervening night of 09/10.11.2015 he was posted as Incharge at West Zone PCR Van bearing No. DL 1CP 7846 and his duty timings were from 08:00 pm to 08:00 am and Const. Mukesh Kumar being driver of the PCR Van was also with him. At about 11:53 am, call regarding quarrel was received from Camp No. 3, W/65/125 and they reached the spot. However, they did not find anyone. Then they pressed hooter but nobody responded including the caller. When they started heading towards their base i.e. Soniya cinema, they received another call and it was again informed that quarrel had taken place at Vikas Puri Camp No. 3. Thereafter they reached there. They were informed that 3-4 boys were pelting stones in the street and had run away from the spot leaving behind the motorcycle. Neither any injured was found nor any stone was found at the spot. The PCR alarm was raised and some public persons gathered near the spot. The registration number of the motorcycle was noted down as DL 10SQ 1512. Suddenly, persons from the mob charred the SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 2 of 11motorcycle and pelted stones on police vehicle. The window screen back side mirror of police vehicle was broken. Message was sent for seeking help. Another PCR reached and the mob started dispersing. Local police also reached there. The FIR under Section 427/435/34 IPC and section 3 PDPP Act was registered.
2. Investigation was carried out and motorcycle, PCR van No. DL 1CP 7846 and the pieces of the stones were seized from the spot and section 308 IPC was added. The accused persons namely Mukesh Kumar and Sunil were arrested. Disclosure statements of the accused persons were recorded and it was revealed that accused Mukesh Kumar had hit one Vipin Paswan with a brick on his head on which blood started coming out. MLC of the injured was collected and the nature of injuries were opined to be grievous. After investigation, Section 186/353 IPC were also added and the permission under Section 195 Cr.PC was taken. Rest of the accused persons could not be arrested during investigation. Charge-sheet was filed and after compliance of Section 207/208 Cr.P.C., the case was committed before the court of sessions in terms of Section 209 Cr.P.C. The charge under Section 186/353/427/435/308/34 IPC and 3 PDPP Act, 1984 was framed against the both accused persons on 19.11.2022.
3. Prosecution cited 18 witnesses, out of which 05 witnesses were examined. Statement of both accused persons was recorded u/s 294 Cr.P.C., wherein they admitted copy of FIR No. 1083/2015 of PS Vikas Puri, Certificate u/s 65B Evidence Act, DD No. 79B dated 09.11.2015, DD No. 3A, X Ray report of injured Vipin Paswan of DDU Hospital, MLC No. 9989 of injured Vipin Paswan and complaint SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 3 of 11u/s 195 Cr.PC as Ex. PX1 to Ex. PX7.
4. PE was thereafter closed vide order dated 30.04.2024. Statements of the accused persons were recorded under Section 313 Cr.PC wherein all incriminating evidence against them was put to them but accused persons denied all the allegations levelled against them and also submitted that they have been falsely implicated in the present case. They did not opt for DE and thereafter matter was listed for final arguments.
5. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
6. PW-1 Retd. SI Ramphal : He has deposed that on the intervening night of 09-10.11.2015, he received a call regarding a quarrel at 11:53 PM from Camp No. 3, W-65/125, Near Toilet. He along with Const. Mukesh reached at the spot and found that no quarrel was taking place at the spot at that time. They then pressed the hooter of van near the toilet but no one came. The caller was called but he also did not respond. They started heading towards their base i.e. near Soniya Cinema and received another call at 12:18 AM from mobile number having first and last digits as 97 and the caller informed that a quarrel had taken place at Vaishali Apartment, Camp No. 3. They again went to the spot and 5-6 persons were standing at the spot in front of Gali and they inquired from them. They informed that 3-4 persons pelted stones in the street and thereafter, ran away SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 4 of 11from the spot and left behind their motorcycle. No injured was found. They tried to find out stones but they were not available at the spot. He further deposed that he again used the hooter of PCR and 250-300 persons of the camp gathered near the spot. He noted down the registration number of motorcycle as DL-1-SQ-1512. He further deposed that when he was noting down the said number, the persons from the mob started saying that said motorcycle should be burned and started pelting stones upon it. Wind screen and the back side mirror of the PCR was also broken. The fire was lit on the said motorcycle by the persons from the crowd. He also deposed that he tried to balance out the situation but the said persons were adamant and did not listen to them. The driver sitting inside the PCR again blew the hooter. He deposed that he told driver to keep a distance from motorcycle as the PCR might have caught fire from said motorcycle. Message was given at wireless set in this regard and more staff was called at spot for their help. In the meanwhile, another PCR i.e. Power 60 came to rescue and the mob started disbursing. Local police also reached at spot. His statement Ex.PW1/A was recorded by IO. Crime team was informed by IO. He further deposed that IO prepared site plan and after staying for some time at the spot, he along with his driver left the spot. He further deposed that there were many persons in the mob and he could not identify them at the stage of recording of his evidence.
7. Since PW-1 Retd. SI Ramphal did not disclose the facts truly, he was cross examined by learned Addl. PP for the State. During his cross examination by Ld. Addl. PP for the State, he failed to identify accused Mukesh and Sunil and states that it was dark at the time of SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 5 of 11incident and he deposed that he could not tell whether the said accused persons were part of mob or not as there were many persons of same age and appearance of accused persons at the spot. He denied all the suggestions given to him during cross-examination by Ld. Addl. PP for the State.
8. PW-2 Sh. Vipin Paswan @ Deepak : He has deposed that the incident took place in the year 2015. He deposed that on the date of incident, he along with Kalam went to birthday of his friend Pungi. They reached there at about 11:00 PM. After cutting the cake, they started drinking beer. There were about 15-20 persons in the party. One of them was breaking beer bottles after consuming the same and was throwing the said bottles on the ground in order to break the beer bottles. While doing so, glass pieces of the beer bottle hit one of the person who was present in the party and thereafter, a scuffle took place between both of them. He further deposed that they tried to rescue and stop the fight. In the meanwhile, stones were pelted by both parties. One of the person hit him with a brick on his head. He then got unconscious and gained his consciousness after some time. His brother shifted him to the hospital. He further deposed that police met him at the hospital and he narrated the entire incident to the police. He further deposed that he did not know whether the person who hit him with the brick on his head was present in the Court or not.
9. Since PW-2 Sh. Vipin Paswan @ Deepak did not disclose the facts truly, he was cross examined by learned Addl. PP for the State. During his cross examination by learned Addl. PP for the State, he deposed that he did not know accused Mukesh and Sunil and failed to SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 6 of 11identify them. He stated that both accused persons never hit him with a brick. He admitted the suggestion that incident took place on 09.11.2015. He denied the suggestion that when Monish was breaking the beer bottles, the glass pieces hit on the face of one Sunil. He denied the suggestion that when he intervened, accused Mukesh caught hold of him and accused Sunil hit him with brick on his head due to which blood started oozing out from his head. He admitted the suggestion that many persons from Jhuggi came at the spot and someone had made a call at 100 number. He denied all the suggestions given to him during his cross-examination by Ld. Addl. PP for the State.
10. PW-3 Retd. SI Kalyan Singh : He has deposed that on the intervening night of 09-10.11.2015, he received an information from District Control Room directing them to reach Vikaspuri opposite Vaishali Apartment, Indira Camp No. 3, Vikaspuri. He along with his entire team went to the spot and met SI Rajesh and other police staff there. He further deposed that they saw one burnt motorcycle at the spot and one PCR Van in damaged condition. Photographer clicked the photographs of spot from different angles. He prepared report of his visit Ex.PW3/A and handed over the same to IO.
11. PW-4 SI Mohinder Singh : He has deposed that in the year 2019 the present case was marked to him for further investigation. He prepared the charge-sheet and filed the same before the concerned Court.
12. PW-5 SI Rajesh Kumar : He has deposed that in the SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 7 of 11intervening night of 09-10.11.2015, at about 11:52 pm, he received a PCR call vide DD No. 79B with regard to a quarrel. He then along with Const. Sunil Kumar went to the spot i.e. Indra Gandhi Camp no. 3, Jhuggi, Vikas Puri, New Delhi. He came to know that some persons had pelted stones on the road and had burnt a motorcycle. He further deposed that he met ASI Ramphal, who was the PCR official and recorded his statement and prepared a rukka Ex.PW5/A. Const. Sunil Kumar was sent to PS for registration of the case. He further deposed that further investigation of the case was marked to SI Kuldeep who reached at the spot and prepared site-plan Ex.PW5/B at his instance. The burnt motorcycle was seized in his presence vide seizure memo Ex.PW5/C. The pieces of bricks found on the spot was also seized in his presence vide seizure memo Ex.PW5/D. He further deposed that IO had recorded his statement under Section 161 Cr.PC.
13. I have heard Sh. Vijender Singh Kharb, Ld. Addl. PP for the State and Sh. Manish Kumar, Ld. counsel for both accused persons.
14. Ld. Counsel for accused persons has argued that there is nothing incriminating which has come on record in order to connect the accused persons with the crime. Therefore, accused persons be acquitted in the present case.
15. On the other hand, Ld. Addl. PP for the State submits that prosecution witnesses have duly proved the prosecution case beyond reasonable doubt, hence, accused be convicted for the offence punishable under Section 186/353/427/435/308/34 IPC and 3 PDPP Act.
SC No. 502/2020 FIR No. 1083/2015, PS Vikas Puri Page 8 of 1116. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465.
17. PW-1 Retd. SI Ramphal who went to the spot on receiving the call regarding the quarrel and injured PW-2 Sh. Vipin Paswan @ Deepak are the star witnesses of the prosecution. PW-1 deposed regarding the entire incident and duly deposed that the mob charred the motorcycle and pelted stones on the PCR car. However, he did not support the case of the prosecution in respect of identification of the accused persons. Similarly, PW-2 Sh. Vipin Paswan @ Deepak who had received grievous injuries in the present case did support the prosecution case and stated that the quarrel had taken place on the date and time of the incident, the stones were pelted and he also received injuries but he failed to identify the accused persons and turned hostile on aspect of identification of both accused persons.
18. It is settled law that testimony of hostile witnesses is not to be discarded as a whole. The Hon'ble High Court of Delhi in Manoj Kumar vs. State of NCT of Delhi in Crl.A. No.677/2010 decided on 24.11.2010, has held in para 27 of the judgment as under:
"27. This is no more res-integra that if a prosecution witness turns hostile then his testimony is not to be treated as effaced or washed for altogether. The Apex SC No. 502/2020 State Vs. Mukesh Kumar & Anr.FIR No. 1083/2015, PS Vikas Puri Page 9 of 11
Court has held in a number of cases that it can be accepted to the extent the testimony of the hostile witnesses is found to be dependable on a careful scrutiny of the entire evidence. Reliance for this proposition can be placed on Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389: 1976 SCC (Cri) 7: AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233:1976 SCC (Cri) 566: AIR 1977 SC 170; Syad Akbar v. State of Karnataka, (1980) 1 SCC 30: 1980 SCC (Cri) 59: AIR 1979 SC 1848; Khujji v. State of M.P, (1991) 3 SCC 627: 1991 SCC (Cri) 916: AIR 1991 SC 1853."
19. In view of the aforesaid judgment, it can be seen that the incriminating part in the testimony of a hostile witness and the deposition which is worth credence can always be relied upon but to the utter dismay, both these witnesses have only supported the prosecution version with respect to the occurrence of the incident but they did not depose anything against the accused persons herein, so much so, they have failed to identify them in the Court and therefore, no part of the testimony of either PW-1 or that of PW-2 can be relied upon and has to be discarded as a whole.
20. There is nothing on record which can even remotely connect the accused persons with the offences for which charge has been framed against them.
21. Prosecution has failed to prove the charges for the offence under Section 186/353/427/435/308/34 IPC and 3 PDPP Act against both the accused persons.
22. Hence, accused Mukesh Kumar and Sunil stand acquitted in SC No. 502/2020 State Vs. Mukesh Kumar & Anr.
FIR No. 1083/2015, PS Vikas Puri Page 10 of 11present FIR No. 1083/2015 PS Vikas Puri of the charges framed under Section 186/353/427/435/308/34 IPC and 3 PDPP Act.
Digitally signed by VANDANA VANDANA JAIN
Announced in open court JAIN Date: 2024.07.06
06.07.2024 21:28:52 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
Note: This judgment contains eleven (11) pages and having my signature on each page.
Digitally signedVANDANA by VANDANA JAIN JAIN Date: 2024.07.06 21:29:01 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC No. 502/2020 State Vs. Mukesh Kumar & Anr. FIR No. 1083/2015, PS Vikas Puri Page 11 of 11