Delhi District Court
State vs . Amit Etc. Fir 163/14 (57337/16) on 31 May, 2019
State Vs. AMIT ETC. FIR 163/14 (57337/16)
IN THE COURT OF AJAY GULATI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57337/16
FIR No. 163/14
PS RANJIT NAGAR
U/s 308/323/34 IPC
STATE
VERSUS
(1) AMIT
S/O SH.RAMESH CHAND
R/O 2151/3D, NEW PATEL NAGAR,
DELHI.
(2) HASSAN KHAN @ GOLWALA
S/O LATE KASIM @ KARIM
R/O C162, KALANDAR BASTI KATHPUTLI
COLONY PANDAV NAGAR, DELHI.
ALSO AT : C680, TRANSIT CAMP,
ANAND PARBAT, DELHI.
Date of Institution : 04.09.2014
Date of Reserving Judgment : 30.05.2019
Result: Acquitted Page 1 of 33
State Vs. AMIT ETC. FIR 163/14 (57337/16)
Date of Judgment : 31.05.2019
JUDGMENT
1. Accused Amit and Hassan Khan have been Charged with the commission of offense of causing such injuries to victim Rahul which, if the injuries had resulted in the death of Rahul, would have been a culpable homicide not amounting to murder (i.e. u/s 308 IPC), and of voluntarily causing simple hurt to victim Rahul (i.e. u/s 323 IPC).
2. Briefly put, on 17.3.2014 at around 11.45 am - 12.15 pm which was the occasion of Holi festival, victim Rahul Solanki was allegedly hit on the head with a glass bottle by the accused persons pursuant to an altercation between them. Specifically, as per the chargesheet, accused Amit caught hold of Rahul and accused Hassan hit on the head of Rahul with a glass bottle. Rahul sustained 6 injuries i.e. near the eye, cheeks, chin and head. However, all of them were opined to be simple injuries. The accused had a 3 rd accomplice i.e. Vipul who was found to be a juvenile. However, Vipul did not actually cause any injury to victim Rahul but was in the process of doing so when he was prevented by Parth (a friend of victim Rahul and an eyewitness) from Result: Acquitted Page 2 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) attacking Rahul. As per the initial statement of Parth given to police, Vipul was searching for a glass bottle to hit Rahul when he was caught hold of by Parth.
The reason for altercation between the victim and accused person is not clear, with conflicting versions appearing in the statements of the witnesses. The reason however is not material. Amit surrendered before a court on 31.3.2014 whereas Hassan is stated to have been apprehended by the police on the basis of a secret tip off on 17.7.2014. Both accused refused to participate in test identification proceedings.
Facts emerging from the Chargesheet
3. On receipt of DD no. 19A, dt. 17.03.2014 regarding admission of injured Rahul Solanki in Metro Heart hospital due to head injury, SI Amit Tyagi alongwith Ct. Sandeep reached Metro Heart Institute, Naraina Road, Pandav Nagar and collected the MLC no. 09/14 of the injured Rahul Solanki who was stated to have been shifted to Sir Ganga Ram hospital. Thereafter, SI Amit Tyagi reached Sir Ganga Ram hospital where he found the injured admitted but could not record his statement due to excessive pain being Result: Acquitted Page 3 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) experienced by the victim. Rukka was prepared on the basis of DD No. 19 A and the FIR was got registered. Investigation commenced thereafter which was handed over to Sub Inspector Amit Tyagi.
During investigation, Investigating officer (IO) searched for Abhishek who had brought the injured to Metro hospital. On being traced in the hospital, Abhishek disclosed that the incident took place at footpath, near Nursery at Naraina Road, New Patel Nagar. He further stated that two boys namely Golwala (a muslim boy) and Amit (a dhobi) had hit the victim with a liquor bottle. Thereafter, the IO reached the spot where blood was found splattered on the footpath and pieces of a broken bottle of liquor were also found. The same were taken into possession vide separate parcels.
Site plan was prepared at the instance of Abhishek. During investigation, statements of witnesses were recorded. Exhibits were sent to FSL, Rohini, Delhi for obtaining expert opinion. During investigation, it was revealed that accused persons namely Hassan Khan @ Golwala, Amit and a Juvenile were involved in the present case.
Statement of witness Abhishek was recorded u/s 161 Cr.P.C. by the IO, wherein he stated that on 17.03.2014 at about Result: Acquitted Page 4 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) 12:15 PM, he alongwith his friends Rahul Solanki and Parth was present near 'Nursery' at Naraina. At a distance of 2025 steps, some boys who were already known to him, were consuming liquor. Out of those, two boys namely Amit and Golwala, came towards them and asked as to why have they levelled allegations of theft of Cigarette? He (Abhishek) denied leveling any such allegation but both the boys started an altercation with him. When his friend Rahul Solanki tried to intervene, both the above named boys scuffled with him. Accused Amit first hit Rahul with fist. In the meanwhile, accused Golwala took a liquor bottle after breaking it. Accused Amit caught Rahul Solanki from his back and accused Golwala hit with the liquor bottle on the head and face of Rahul Solanki many times due to which he fell down on the road. Thereafter, both the accused persons fled away from the spot. Injured was shifted to Metro hospital by this witness and another person namely Arvind @ Sonu.
Investigating Officer also recorded statement of injured Rahul Solanki u/s 161 Cr.P.C. wherein he also mentioned the same facts as stated by the witness Abhishek. At this stage, it is important to highlight that a supplementary statement of victim Rahul was also recorded, reference to which will be made at a later stage.
Result: Acquitted Page 5 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) Accused Amit surrendered before the court. However, nonbailable warrants and process u/s 82/83 Cr.P.C. against accused Hassan Khan @ Golwala was issued on 04.07.2014. After completion of investigation, Chargesheet was filed before the Court of Area MM. However, on 07.07.2014, accused Hassan Khan @ Golwala was arrested. Thereafter, supplementary chargesheet was filed in the court of concerned MM regarding accused Hassan Khan @ Golwala. Charges :
4. On 13.10.2014, Charges for the offence Punishable U/s 308 and 323 IPC r/w section 34 IPC were framed against both the accused persons to which they pleaded not guilty and claimed trial.
5. In order to prove the Charges, prosecution examined 11 witnesses out of whom 3 were eye witnesses, apart from victim Rahul himself. Brief introduction to the purpose for which each of the witnesses were summoned is as follows -
PW 1 Rahul Solanki - Victim and complainant PW 2 Arvind - eye witness; took victim to the hospital PW 3 Abhishek - eye witness; took victim to the hospital Result: Acquitted Page 6 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) PW 4 Parth - eye witness; accompanied victim to the hospital PW 5 ld. MM - to prove Test Identification Proceedings of accused Amit PW 6 HC Jagdish - Duty Officer who recorded initial DD and assigned the same to SI Amit Tyagi; also registered the FIR PW 7 Dr. Aditya - Junior resident doctor in Metro Hospital who first examined Rahul PW 8 Ct. Sandeep - remained associated with IO during initial investigation; brought rukka to the police station and took copy of FIR to the crime scene PW 9 Dr. RS Chauhan - Manager of school where accused Amit studied; proved the date of birth proof documents.
PW 10 Talwinder Singh @ Sabby also an eye witness as per the prosecution but in his testimony before the Court, he denied having witnessed anything PW 11 Sub Inspector Amit Tyagi - Investigating Officer Result: Acquitted Page 7 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16)
6. Victim Rahul Solanki was examined as PW 1. In his chief examination, Rahul deposed that on the day of Holi of the year of incident, at about 11:45 AM (noon), he, Abhishek and Parth were present in a park near the shop of Jaipal Denter. Abhishek had started teasing Sabby. Sabby asked Abhishek not to tease him, warning him of a quarrel. Thereafter, Sabby went across the road and then 45 boys came towards them and asked Abhishek as to why was he teasing/quarreling with Sabby. A scuffle took place between Abhishek and those 45 boys. When PW 1 asked them as to why were they fighting on the occasion of Holi, one person gave a bottle blow on his head and due to the injuries sustained, he became unconscious.
PW1 identified both the accused persons namely Amit and Hassan before the court while stating that both of them were amongst those 45 boys. Witness however, deposed that he did not know as to who had given him injury with bottle on his head. He voluntarily deposed that the person who had given him injury was with both the accused persons. He further deposed that accused persons present in the court had also given him injuries with beer bottle.
Result: Acquitted Page 8 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) This witness also deposed that after receiving injuries, he fell on the ground and blood started to ooze from his wounds. His clothes were smeared with blood which were handed over to the police. Witness identified a black T.shirt, which was exhibit P.1 as the same Tshirt which he was wearing on the day of alleged incident even though in earlier part of his chief examination, he had stated that he was wearing a white Tshirt and white shorts (Nicker).
In his cross examination on behalf of accused Hassan, PW 1 deposed that he did not know the accused persons; that he could not recognize the person who had assaulted him for the reason that 'faces of those persons were full of colour' on account of Holi; that Investigating Officer informed him about the name of the accused; and that he could not identify as to who is accused Amit and who is accused Hassan.
In cross examination on behalf of accused Amit, PW 1 deposed that there was no quarrel with him prior to the assault on his head from back side. He further stated that site plan was prepared at his instance. However, in the site plan as also the testimony of Investigating Officer, presence of Abhishek is reflected since his Result: Acquitted Page 9 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) signature appears on the site plan. This witness was shown the statements recorded by the police Mark PW1/DA and Mark PW 1/DB, which he claimed bore his signatures but infact the statements were unsigned.
7. Eye witness to the incident Arvind was examined as PW 2. In chief examination, PW2 Arvind Kumar @ Sonu deposed that on 17.03.2014 at about 02:00 PM, he alongwith Talvinder (Sabby), Vipul, Amit and Golwala were present at the road near Nursery School, New Patel Nagar. Talvinder went to opposite side of the road where Rahul, Abhishek and Parth were present. They started joking with each other but Amit and Golwala (accused persons) felt that they were quarreling and both went to the side of Rahul and Abhishek, while Talvinder came to their side. Thereafter, some 'quarrel' ensued between Rahul and Golwala whereas Abhishek had a verbal duel with Amit.
PW2 further deposed that he did not know as to who had caused injuries to whom. By the time he could reach on the other side of the road, Vipul, Golwala and Amit had fled, while he, Rahul and Abhishek were present there. He saw that Rahul was having injuries Result: Acquitted Page 10 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) on head and was bleeding.
This witness was declared hostile and crossexamined by the ld. Addl. P.P. for the State wherein he admitted that when Talwinder Singh @ Sabby came to their side of the road, he did not say anything to them. Thereafter, Amit, Hassan Khan @ Golwala and Vipul went to the opposite side of the road. On being put a specific question by the ld. Addl. P.P. for the State regarding inflicting injuries on Rahul by the accused persons and to explain his initial statement to the police that 'he was not expecting them to do this', PW2 replied that he had not seen the accused persons inflicting injuries but strangely, also admitted that he stated to the police that he did not expect the accused persons to do this. This witness further deposed that he did not know the accused persons present in the court. However, on being asked question qua identification of accused persons by the ld. Addl. P.P. for the State, Witness replied that Amit was alongwith him however, he was smeared with Holi colour. He also denied the suggestion put to him by the ld. Addl. P.P. for the State that he knowingly and intentionally failed to identify the accused persons present in the court.
In cross examination on behalf of accused Hassan, Result: Acquitted Page 11 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) witness admitted that Investigating Officer recorded his statement Ex. PW2/A. Witness however was not cross examined on behalf of accused Amit.
8. 2Nd eye witness Abhishek was examined as PW 3. In chief examination, PW3 Abhishek deposed that on the day of Holi festival of 2014, in between 12 noon to 01:00 PM, he alongwith his friend Parth were standing near DTC Bus Stand, nearby Shadi Pur Metro Station. He saw that his friend Rahul was lying injured across the road. Immediately he reached there and removed him to nearby Metro hospital. His friend Arvind was also with him.
He came to know that a quarrel took place but had not seen as to who had assaulted Rahul. This witness was also cross examined by the ld. Addl. P.P. for the State after declaring him to be a hostile witness. However, he denied the suggestions put to him by the ld. Addl. P.P. for the State that accused persons picked up a fight on the ground of false allegation of theft of cigarettes or that victim Rahul was assaulted by the accused persons. PW 3 also denied his statement Mark PW3/A having been made so before the police at any point of time. He further denied the suggestion put to him by the ld.
Result: Acquitted Page 12 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) Addl. P.P. for the State that he was deliberately suppressing the true facts and deposing half heartedly with a view to save the accused persons.
This witness was cross examined on behalf of the accused Hassan but nothing relevant was put to him. He was not crossexamined on behalf of accused Amit.
9. 3rd eye witness Parth was examined as PW 4. In his chief examination, PW4 Parth Bhatia deposed that on 17.03.2014 at around 12 PM, he was present at home. Some guests had come to his house and when they were going away, he noticed his friend Abhishek standing in front of his house who greeted him for Holi festival. The witness went to his house for bringing some eatables for Abhishek. On coming back, he saw Abhishek and another person taking injured Rahul to a hospital on his motorcycle. The witness also had gone to the hospital from where injured Rahul was taken to Ganga Ram Hospital. The witness expressed ignorance about the assailants of injured Rahul.
The witness was crossexamined by ld. Addl. PP for the State after being declared hostile. He deposed that the police had not Result: Acquitted Page 13 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) recorded his statement and rather only his address was asked by the police from him. Witness also stated that he did not know any persons by the names of Amit, Golwala @ Hassan Khan and Vipul. PW3 denied the suggestion of the prosecution that he was intentionally suppressing the fact that he is known to the abovenamed persons. He also denied the suggestion of the prosecution that he saw Vipul running towards the shop of 'Panwari' from where he picked up a bottle from the crate to hit Rahul but was overpowered by the Witness. The Witness categorically denied the suggestion of the prosecution that he had seen Amit and Golwala @ Hassan Khan assaulting the injured Rahul.
This Witness was also not cross examined on behalf of the accused persons.
10. Sh. Vishal Pahuja, ld. Metropolitan Magistrate, Delhi was examined as PW 5 for proving the identification proceedings qua accused Amit. In chief examination, PW5 deposed that application for conducting TIP of accused Amit was marked to him who was produced and identified before him by SI Thakur Singh. On being asked about his willingness to participate in the TIP proceedings, Result: Acquitted Page 14 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) accused Amit refused for the same stating that since his photographs had already been taken by the police, the same might have been shown to the witnesses. This Witness recorded statement of the accused to the above effect and appended his certificate. The said proceedings have been proved by the witness as Ex.PW5/A. This Witness was also not cross examined on behalf of the accused persons.
11. Head Constable Jagdish, Duty Officer at PS Ranjit Nagar on 17.3.2014 was examined as PW 6. In his chief examination, PW6 deposed about receiving of DD No.19A Ex.PW6/A at about 12.42 PM on 17.3.2014, on receiving telephonic information from Dr. Aditya, Metro Heart Hospital regarding admission of injured Rahul Avnee with head injury. He further deposed that on the same day at about 3.35 PM, he registered FIR under Section 308 IPC in the present case on the basis of rukka recorded by SI Amit Tyagi which was handed over to him by Const. Sandeep. The original rukka and the computerized copy of FIR Ex.PW6/C were handed over by this Witness to Const. Sandeep for further handing over of the same to SI Amit Tyagi.
Result: Acquitted Page 15 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) In the crossexamination on behalf of accused Amit, this witness deposed that FIR was registered only u/s 308 IPC. However, the witness was not crossexamined on behalf of accused Hassan Khan.
12. Dr. Aditya, Junior Resident doctor at Metro Hospital on 17.3.2014 who had examined victim Rahul Solanki, was examined as PW 7. In his chief examination, PW7 deposed that while working as Jr. Resident doctor in the emergency department of RLKC Hospital Metro Heart Institute, he had examined patient Rahul Solanki who was conscious and oriented. The injured was brought to the casualty ward of the hospital at about 12.30 PM on 17.3.2014 by his friend Abhishek with alleged history of assault by a glass bottle. The witness examined the patient vide MLC Ex.PW7/A and found following injuries on his person :
i) Cut over left frontotemporal region over left eye 6 cms x 2 cms x 4 cms with active spurting of blood
ii) Cut over right fronttemporal region above right zygomatic arch 4 cms x 1 cm x 2 cms and 2 cms x 1 cm x 1 cm.
iii) Cut over right chin 2 cms x 1 cm x 2 cms
Result: Acquitted Page 16 of 33
State Vs. AMIT ETC. FIR 163/14 (57337/16)
iv) Abrasions over left cheek, chin and left knee.
v) Cut over right parietal region 1cm x 2 cms x 2 cms
The Witness also deposed that Tshirt of the injured was soaked with blood and his 'pant' was stained with blood. Clothes were sealed by PW7 with the seal of RLKC Hospital, Pandav Nagar New Delhi. The witness had also advised NCCT of head of the injured.
In his crossexamination on behalf of accused persons, he deposed that his opinion regarding the complainant's injury having been caused by a glass bottle was based on alleged history of assault. He further deposed that no glass particle or piece was noticed in the wounds of patient Rahul.
13. PW 8 Ct. Sandeep remained associated in the initial investigation alongwith SI Amit Tyagi. In his chief examination, PW8 deposed that on receipt of DD No.19A by Investigating officer SI Amit Tyagi, he accompanied him to Metro Hospital on 17.3.2014 where IO collected MLC of injured Rahul Solanki and also came to know that the injured had been referred to Sir Ganga Ram Hospital. Thereafter, he accompanied IO to Ganga Ram Hospital where injured was found admitted in the Emergency Ward but was not in a position Result: Acquitted Page 17 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) to give statement due to acute pain. The IO prepared rukka on the basis of DD No.19A and handed over the same to PW8 for getting the case registered. The witness also deposed that after registration of the case when he reached the crime scene i.e. Nariana Road, the IO along with Const. Pawan and Abhishek met him. Blood was splattered on the tiles of pavement and pieces of glass were also lying. The IO lifted three blood stained pieces of brick as earth control Ex.P3, sealed the same with the seal of RTNGRIII and seized the same vide seizure memo Ex.PW3/B. The pieces of glass bottle Ex.P2 were also seized vide memo Ex.PW3/C after preparing a parcel and sealed the same with the seal of RTNGRIII. Both the seized parcels were handed over by the IO to Const. Pawan.
Witness further deposed that the Investigating Officer conducted personal search of the accused Amit vide memo Ex.PW8/B and also recorded his disclosure statement Ex.PW8/C. Witness also deposed about the arrest of another accomplice namely Vipul who was a Juvenile. After conducting requisite proceedings qua the juvenile, his custody was handed over to his father. The Witness admitted in his crossexamination done on behalf of prosecution that clothes of injured were handed over to him by the doctor of Metro Result: Acquitted Page 18 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) Hospital which were sealed with the seal of RLKC Hospital, Pandav Nagar. The said clothes were produced by the witness before IO/SI Amit who seized the same vide seizure memo Ex.PW8/D. This witness deposed that Juvenile Vipul was apprehended on secret information.
In the crossexamination on behalf of accused persons, PW8 deposed regarding the preparation of rukka and initial investigation conducted by the investigating officer.
14. Sh. R.S. Chauhan, Manager of Kalawati Vidhya Bharti Public School, Patel Nagar, where accused Amit studied till class 8, was examined as PW 9. In chief examination, PW9 deposed about the date of birth of accused Amit. Witness stated that as per school record which was based on the information provided in the application and copy of Immunization card attached alongwith the application, the date of birth of accused Amit was 17.11.1994. He also deposed that as per record available in the school, accused Amit was admitted on 9.7.1999 and had studied upto 8 th class in the said school whereafter transfer certificate was issued to him on 2.4.2007. The Witness had handed over copy of application form (Ex.PW9/A), Result: Acquitted Page 19 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) copy of immunization card (Ex.PW9/B) and copy of admission register in respect of accused Amit to the investigating officer of the case.
This witness was not crossexamined on behalf of the accused persons.
15. Alleged eye witness Talwinder Singh was examined as PW 10. In chief examination, PW10 deposed that he left India for Georgia in November 2015. He stated that he has no personal knowledge about the incident of the present matter but had only heard that a fight had taken place on the day of Holi in the year 2014. The witness was declared hostile and was crossexamined by the prosecution during the course of which he denied the recording of his statement mark PW10/A by the police on 17.3.2014. Witness also denied having visited the scene of crime at any point of time or being familiar with the accused persons. The Witness further denied making his statement to the effect that the accused persons along with one of their other accomplice had given beatings to Abhishek and Rahul or that thereafter he was taken to Metro Hospital for treatment.
In the crossexamination on behalf of State, this witness deposed that Investigating Officer had not recorded his statement Result: Acquitted Page 20 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) (Mark PW10/A) in the present case. He further denied suggestions put to him on the basis of the above said statement. In crossexamination on behalf of accused persons, Witness deposed that Investigating Officer had not recorded his statement at any point of time.
16. Sub Insp. Amit Tyagi who was the Investigating Officer (IO), was examined as PW 11. In his chief examination, the investigating officer deposed that on receipt of DD No.19A regarding admission of Rahul in Metro Hospital with injury on his head, he along with Const. Sandeep reached the said hospital and obtained MLC of injured Rahul Solanki. The injured was not found in the said hospital and it came to their knowledge that he has already been referred to Ganga Ram Hospital. The IO had also deposed in the same terms as PW8 Const. Sandeep who was with him throughout investigation of the present case till the arrest of accused Amit. Witness deposed about preparation of rukka Ex.PW11/A and sending the same through Const. Sandeep for registration of the present case, regarding recording of statement of Abhishek (Ex.PW11/B), and also preparation of site plan at the instance of Abhishek.
Result: Acquitted Page 21 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) The witness deposed that he arrested coaccused Hassan on 7.7.2014 vide arrest memo Ex.PW11/C and conducted his personal search vide memo Ex.PW11/D. Pointing out memo of the place of incident was got prepared by this Witness at the instance of accused Hassan which is Ex.PW11/E. The witness also deposed about recording of statement of Rahul Solanki Ex.PW11/F (earlier mark PW1/DA), of Parth Bhatia Ex.PW11/G (earlier mark PW4/A) and of Talwinder Singh @ Sabby Ex.PW11/H (earlier mark PW10/A) respectively. He further deposed that statement of Abhishek was recorded in the police station.
In the crossexamination on behalf of accused persons, IO deposed that he received copy of DD no. 19A at about 12:30 PM; that no document was prepared at Metro hospital; that no statement of doctor was recorded at Metro hospital; that he reached Ganga Ram hospital at 02:30 PM and that rukka was prepared after reaching Ganga Ram hospital. He further deposed that he met Abhishek after rukka was sent. He admitted that statements of all the witnesses were recorded at the police station. He also admitted that statements of Abhishek, Ct. Sandeep and Ct. Pawan (beat constable) were recorded on the same day.
Result: Acquitted Page 22 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16)
17. After the completion of prosecution evidence, statements of both the accused were recorded u/s 313 Cr.PC. wherein they denied the incriminating circumstances appearing against them in the course of recording of prosecution evidence. Both the accused persons expressed their ignorance about injured Rahul having been taken to any hospital for treatment or of registration of present case against them. However, they denied that they had a quarrel with Abhishek. They also took the plea of alibi stating that they were not present on the alleged crime scene at the time of stated incident. Accused Amit stated that at the time of incident he was watching a movie with one of his friend, namely Shiv Prakash whereas accused Hassan stated that he had taken his son to the clinic of a doctor. Both the accused persons opted to lead evidence in their defence by submitting that accused Amit will produce his friend Shiv Prakash as his defence witness whereas accused Hassan will produce the doctor to whom he had taken his son for treatment. However, it is pertinent to mention that in the additional statements of both the accused persons recorded on 27.11.2018, though both the accused persons had taken the same plea as was taken by them in their earlier statements under Section 313 Cr.P C recorded on 24.7.2018, they opted not to lead any Result: Acquitted Page 23 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) evidence in their defense.
18. I have heard Ld. Additional Public Prosecutor as also the learned counsel for both the accused.
19. During the course of final submissions, ld. Addl. Public Prosecutor argued that the even though the prime witnesses of the prosecution have not supported the prosecution allegations, the testimony of atleast 2 of the witnesses i.e. of victim Rahul (PW 1) and eye witness Arvind (PW 2) proves beyond any reasonable doubt the involvement of both the accused in the alleged crime. Highlighting the respective testimonies, ld. Addl. PP submitted that victim Rahul identified both the accused as being a part of the group of 45 boys who had physically assaulted him whereas PW 2 Arvind, twice admitted in his examination i.e. with reference to the allegation that accused Amit caught Rahul and accused Hassan hit liquor bottle on the head of Rahul many times that "he did not expect them to do this".
20. On the other hand, ld. Counsel for the accused persons Result: Acquitted Page 24 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) submitted that none of the accused persons were identified by the prosecution witnesses/eye witnesses as the ones who had assaulted Rahul. Even victim Rahul himself could not identify the accused persons as the ones who gave injuries on his head.
21. Rival submissions have been duly considered and the judicial record has been carefully perused.
22. Prosecution opened its case by examining the victim as PW 1. In his examinationinchief, PW 1 deposed that he could identify the boy who hit him and then pointed out towards both the accused persons as the ones who were a part of the group of 45 boys who had a scuffle with Abhishek. However, immediately thereafter, PW 1 stated that he doesn't know who had given him injury and volunteered to state that the person who gave injuries was with the accused persons. Strangely enough, immediately again PW 1 deposed that accused persons also gave him injuries with beer bottles. Thus even before reaching the stage of crossexamination, a significant doubt was created in the chief testimony of victim/ PW 1 Rahul regarding the involvement of accused in the alleged assault.
Result: Acquitted Page 25 of 33State Vs. AMIT ETC. FIR 163/14 (57337/16) In his cross examination, PW 1 deposed that he could not recognize the person who had assaulted him for the reason that 'faces of those persons were full of colour' on account of Holi and further, that he could not identify as to who is accused Amit and who is accused Hassan. Further, in his chief examination, PW 1 stated that he intervened in the scuffle between Abhishek and group of 4 5 boys whereafter he was hit on the head with glass bottle but in his cross examination, he denied that there was any 'quarrel' with him prior to the assault. If there was no quarrel, then what was the reason for sudden assault?
23. Still further, in his initial statement to the police, PW1 had named both the accused as the ones who had assaulted him. Infact, he had stated to the police that not only did he knew the boys with whom he had a scuffle but also gave details of how the scuffle initially started between accused persons and Abhishek and how later on, he got involved while trying to intervene. At this stage, it is important to highlight that a supplementary statement of PW 1 was recorded by the police wherein he stated that he did not know the names of the Result: Acquitted Page 26 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) persons who had assaulted him. The strange part is that in his first statement, he identified both the accused persons by name whereas in his supp. statement, PW 1 stated that he did not know the names of those persons. In his chief examination, PW 1 gave a different version of how the fight started whereas in his statement to the police, a completely different version emerged. As per the court deposition of PW1, the fight started on account of one Talwinder @ Sabby (PW 10) whom Abhishek allegedly teased. But in his statement to the police, victim Rahul informed that the fight ensued between accused persons and Abhishek on account of allegations leveled (purportedly by Abhishek) on the accused persons that they had stolen cigarettes.
24. The veracity of prosecution case thus suffered right at the initial stage when the victim himself gave an inconsistent and contradictory deposition. There is no corroboration forthcoming from his initial statement given to the police. In court, PW 1 specifically deposed that he could not see the faces of those persons who assaulted him since their faces were covered with Holi colors. However, in his statement to the police, he specifically named both the accused persons as the ones who picked up a fight initially with Result: Acquitted Page 27 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) Abhishek and then subsequently assaulted him (Rahul) also. Thereafter, in his supp. Statement given to the police, he denied knowledge about their identity. In crossexamination on behalf of accused Amit, PW 1 deposed that there was no quarrel with him prior to the assault on his head from back side whereas in the examination inchief as also the statement given to the police, PW 1 appears to have been involved in the scuffle with accused persons pursuant to which he was hit on the head. He further stated that site plan was prepared at his instance. However, in the site plan as also the testimony of Investigating Officer, presence of Abhishek is reflected since his signature appear on the site plan.
25. There is contradiction not only in the chief examination and cross examination of PW 1 but in his chief examination itself, as already highlighted above. Cumulative assessment of the chief examination and cross examination of victim Rahul/ PW 1 brings out only one conclusion which is that there is significant doubt regarding the involvement of the accused persons in the assault on the victim.
26. Further, evidence led on behalf of the prosecution also Result: Acquitted Page 28 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) damaged the prosecution case. PW2 Arvind was an eye witness to the occurrence but he also failed to identify the accused persons as the ones who assaulted the victim. In his chief examination, PW 2 deposed regarding the fight between Rahul and accused Hassan, and verbal duel between Abhishek and Amit. However, he further deposed that he didn't know who caused injuries to whom. He also deposed that none of the assailants are present in the court. On being declared hostile by the state counsel, in his crossexamination by the ld. Addl PP, PW 2 denied that in his statement to the police he had mentioned about Amit, Hassan and Vipul picking up a quarrel with Rahul. Relevant to highlight that in his cross examination by the State counsel, witness was specifically asked to explain his statement that 'he was not expecting Amit, Hassan and Vipul to do this', in regard to the infliction of injuries by accused persons on victim Rahul. This explanation was sought since though the witness had refused to identify the accused as the actual assailants but in the same breath, had also stated that he was not expecting them to assault the victim with a bottle on head (i.e. the precise words used by the witness are underlined above). However, in his explanation, he reiterated his earlier deposition that he could not identify the assailants but also Result: Acquitted Page 29 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) admitted that he was not expecting accused persons to do this. Further contradictions come to fore when the testimonies of PW 1 and PW 2 are compared. Specifically, PW 1 deposed that on being teased by Abhishek, Talwinder @ Sabby went across the road towards accused persons and came back with 4 - 5 boys. However, PW2 only mentions that Talwinder came to their side (i.e. across the road) and thereafter both accused went towards Rahul, Abhishek and Parth. In his own examinationinchief, PW 2 stated that only Amit and Hassan went over to the side of Rahul, Abhishek and Parth whereas in his cross examination, PW 2 mentioned about Vipul accompanying Amit and Hassan. Though PW 2 partly corroborated the chief examination of victim/PW 1 regarding the initial incident involving Talwinder @ Sabby and Rahul/Abhishek/Parth, and the fight between accused persons and Rahul, in view of the contradictions highlighted above, his categorical denial of having named the accused persons before the police coupled with his deposition in court where he could not identify the accused persons as the actual assailants, the testimony of PW 2 does not in any manner aid the prosecution case.
27. PW 3 Abhishek started his chief examination from the Result: Acquitted Page 30 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) point of time when he saw victim Rahul lying on the ground in an injured condition. Further, in his chief examination itself, this witness stated that he knew about the quarrel but did not see as to who had assaulted the victim nor did he know the accused perosns. On being declared hostile, in crossexamination on behalf of the prosecution, PW 3 denied that the accused persons picked up a fight on the allegation of theft of cigarettes. He further denied that Rahul was assaulted by the accused persons and also denied making any statement to the police (Mark PW 3/A). This witness thus plainly denied the involvement of accused persons in the alleged crime. In much the same manner PW 4 Parth, in his chief examination, deposed about victim Rahul lying in an injured condition and that he did not know as to who had assaulted the victim. In cross examination on behalf of the prosecution (i.e. on being declared hostile), PW 4 denied that his statement was recorded by the Police. He further deposed that he didn't know the accused.
28. PW 10 Talwinder @ Sabby completely denied having any personal knowledge about the assault. In cross examination on behalf of the prosecution, witness denied that his statement was ever recorded by the police during the course of investigation. He denied Result: Acquitted Page 31 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) the suggestions that were put to him on the basis of his statement recorded under section 161 of the Cr.PC.
29. The eye witnesses as also the victim himself failed to support the prosecution version. Infact, the testimony of victim PW 1 himself is so contradictory that it would be highly imprudent to rely on the incriminating aspect of his testimony for the purpose of convicting the accused persons. So far as the respective testimonies of eye witnesses is concerned, none has implicated the accused persons in the alleged crime in a manner which can dispel the doubt over their involvement. Given the facts of the case, the testimonies of official witnesses alone are neither relevant nor sufficient to convict the accused. In view of the hostile testimony of eye witnesses, there is no scope of the Charges framed being proved against the accused persons. Consequently, it is held that on the basis of evidence led, prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. As a corollary, the accused persons are acquitted of Charges u/s 308 and 323 IPC.
30. Both the accused persons are directed to furnish Result: Acquitted Page 32 of 33 State Vs. AMIT ETC. FIR 163/14 (57337/16) PB/SB in the sum of Rs.10,000/ each with one Surety each in the like amount, in view of Section 437A Cr.P.C.
31. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN (AJAY GULATI )
COURT ON: 31.05.2019 ASJ05 (West), THC, Delhi.
Result: Acquitted Page 33 of 33