Delhi District Court
State vs . Neeraj & Other on 30 May, 2012
State Vs. Neeraj & Other
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 35/2011
Unique ID No. : 02403R0706682005
State Vs. : 1. Neeraj Kumar
S/o Sh Amar Singh
R/o Jhuggi No. 100,
Rajasthani Camp, Janta Flats,
Sarita Vihar, New Delhi
2. Mukesh
S/o Sh Gian Chand
R/o Jhuggi, Rajasthani Camp
Janta Flats, Sarita Vihar,
New Delhi
FIR No. 230/05
P.S. Sarita Vihar
U/s 308/34 IPC
Date of Institution : 06/12/2005
Date when arguments
were heard : 16/05/2012
SC No. 35/2011 1/27
State Vs. Neeraj & Other
Date of Judgment : 30/05/2012
JUDGMENT
BRIEF FACTS:
Factual matrix of the prosecution case is as follows:
Bharat @ Sunny, resident of H. No. 302A, Janata Flat, Pocket N, Sarita Vihar, New Delhi used to run sweet shop with his father. On 21/05/2005, while Bharat @ Sunny was sitting at his shop, at about 11 pm his brother Vikas and employee Vimlesh came to him saying, Mukesh (accused) had beaten Vimlesh. Bharat @ Sunny with employee Pramod, brother Vikas, Vimlesh went to Rajasthani Camp, Janta Flat. Vimlesh told of hut of Mukesh. Bharat @ Sunny said to Mukesh as to why he has beaten Vimlesh. Mukesh hurled abuse and said, "Hamne use maara hai, tujhey bhi dekhate hai ki tu yaha kaise aya mei tujhe marunga." Bharat @ Sunny moved back to return but Mukesh (accused) and Neeraj (accused), both stopped Bharat @ Sunny and Pramod and assaulted them with dandas and saria, causing injuries on their persons. DD No. 45B, DD No. 46B were received on 21/05/2005 by HC Satya Prakash (PW8) who with Ct Sri Kishan (PW1) reached the scene of crime, met injured Bharat @ SC No. 35/2011 2/27 State Vs. Neeraj & Other Sunny and sent him to AIIMS through Ct Sri Kishan (PW1). Thereafter HC Satya Prakash (PW8) also went to AIIMS. HC Satya Prakash (PW8) obtained the MLCs of Bharat @ Sunny and Pramod. On being declared fit for statement by the doctor, HC Satya Prakash (PW8) recorded statement Ex PW5/A of Bharat @ Sunny, upon which tehrir Ex PW8/A was scribed by HC Satya Prakash (PW8). Ct Sri Kishan (PW1) took tehrir to police station, gave it to the duty officer and got case FIR No. 230/05 registered under Sections 341/323/34 IPC. On obtaining the opinion of nature of injuries as grievous on MLC of Pramod, offence under Section 308 IPC was added. On completion of investigation, charge sheet for offences under Sections 341/323/308/34 IPC was filed.
2. After completion of requirements of under Section 207 Cr.P.C., matter was committed to the court of Sessions. CHARGE
3. In terms of order dated 07/09/2006, charge for offence under Section 308/34 IPC was framed against both accused by my Ld. SC No. 35/2011 3/27 State Vs. Neeraj & Other Predecessor to which they pleaded not guilty and claimed trial. WITNESSES:
4. To connect the accused with the offence charged, prosecution has examined in all 12 witnesses.
5. Ct Sri Kishan (PW1) accompanied IO HC (now ASI) Satya Prakash (PW8) to the scene of crime in the intervening night of 21/22.5.05, shifted injured Sunny from there to AIIMS from where he later brought ruqqa scribed by HC (now ASI) Satya Prakash (PW8) and got the case registered by duty officer. Also Ct Sri Kishan (PW1) is the witness to the arrest of accused persons on 22/05/2005.
6. Dr Prem Prakash (PW2) deposed of MLC Ex PW2/A to be in the writing of Dr Gopal Sedain whose writing and signature he identified, which doctor had left the services of hospital. As per MLC Ex PW2/A, Pramod was admitted with alleged history of assault and one laceration on left side of scalp, which was opined as grievous injury caused by blunt force.
SC No. 35/2011 4/27
7. Vimlesh Kumar (PW3); injured Bharat @ Sunny (PW5) and Vikas Bhagwani (PW6) are the examined material witnesses whose testimonies shall be discussed later in the course of judgment.
8. Ct Mahender Singh (PW4) is the witness to the arrest of accused Mukesh and Neeraj on 08/11/2005 after offence under Section 308 IPC was added.
9. Dr T. Millo (PW7) deposed that MLC Ex PW7/A, dated 22/05/2005 of patient Sunny (PW5) was in the writing of Dr Sanjay Kumar; MLC Ex PW7/B, dated 22/05/2005 of patient Pramod was in the writing of Dr Gopal Sedian. Also Dr T. Millo (PW7) stated that Xray report dated 22.05.05 of patient Pramod, Ex PW7/C was in the writing of Dr Sanchita finding mention of fracture of skull. Dr T. Millo (PW7) deposed that these doctors had left the services of AIIMS and their present whereabouts were not known. Injuries of patient Pramod were opined as grievous caused by blunt object and injuries of patient Sunny were opined as simple caused by blunt SC No. 35/2011 5/27 State Vs. Neeraj & Other object.
10. ASI Satya Prakash (PW8) is the investigating officer who besides sending tehrir, also prepared site plan Ex PW8/B at the instance of injured Sunny, later on arrested accused persons, for offences under Sections 341/323/34 IPC, after registration of the FIR on 22/05/2005.
11. HC Dharambir (PW10) alongwith Ct Jitender (PW11) arrested accused Mukesh (then PO) on 23/08/2011 from near Rajasthani Camp. SI Satish Kumar (PW9) conducted further investigation after arrest of accused Mukesh (then PO) later to 23/08/2011 and prepared charge sheet for said accused Mukesh.
12. SI Manohar Lal (PW12) had rearrested the accused Neeraj and Mukesh on 08/11/2005 after addition of Section 308 IPC. STATEMENTS OF ACCUSED:
13. Thereafter both accused were examined under Section SC No. 35/2011 6/27 State Vs. Neeraj & Other 313 Cr.P.C. All incriminating material in evidence was put to the accused persons.
14. Accused Neeraj stated that Sunny, Pramod and two others after taking out his coaccused Mukesh from his jhuggi were beating him. Accused Neeraj also stated that he went to intervene and save Mukesh; but those persons started beating him; public came there and participated in the beatings; they had only tried to save themselves and had not assaulted Sunny or Pramod or others; somebody started shouting, "mar gaya, mar gaya"; people started running and they also ran away. Accused Neeraj also stated that police took his brother to police station and in the morning, he was called at police station and was falsely implicated in this case.
15. Accused Mukesh stated that he used to supply gas cylinder to Sunny at his hotel; Pramod was employee of Sunny; on the asking of Pramod, he had left four filled gas cylinders at the shop of Sunny; he demanded the money for the gas cylinders; father of Sunny told him that he used to take out gas from cylinders and had SC No. 35/2011 7/27 State Vs. Neeraj & Other committed theft, so he should give some cylinders free of cost; later Pramod gave him money of cylinders; Sunny and Pramod had some altercation between them; Pramod is his relative from side of his in laws; somebody had hit Pramod but not in his presence; he had gone to his jhuggi; Vimlesh was his neighbour; he told Vimlesh to go to Shani Bazar but he said that he will go later on; he had an altercation with Vimlesh; Vimlesh told to his employer; Vikas, employer of Vimlesh came with Sunny, Pramod to his jhuggi and gave him beatings by legs and fist blows; people collected there; someone from the crowd hit danda on head of Pramod; he ran away and police falsely implicated him in this case.
16. Both accused denied to lead defence evidence. ARGUMENTS
17. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. SC No. 35/2011 8/27
18. Sh. A. T. Ansari, Ld. Addl. PP for the State argued that the material and eye witnesses of the occurrence namely Vimlesh Kumar (PW3); Bharat @ Sunny (PW5) and Vikas Bhagwani (PW6) by their evidence have proved that the accused in furtherance of their common intention had assaulted and caused injuries on the person of Bharat @ Sunny and Pramod to commit culpable homicide not amounting to murder and has prayed for the conviction of the accused persons.
19. Sh. Mihi Lal Chaudhary, Ld. Defence counsel for the accused persons in free legal aid from Delhi Legal Services Authority argued that cited and examined material witnesses have all narrated different versions in their testimonies, inter se inconsistent and in material contradiction with the presented case of the prosecution. Also was argued that in fact the material witnesses developed new and different versions at variance from the lodged first information report and the case of prosecution as presented because of which their versions lack credence and can not be made basis for the conviction of the accused. Also was argued that no SC No. 35/2011 9/27 State Vs. Neeraj & Other blood was stated to be present at the scene of crime nor was seized. It was argued that it were the material witnesses, PW3, PW5 and PW6 who allegedly were aggressors and even reached the hut of accused Mukesh, entered in it and caused injuries to Mukesh (accused) while on account of poverty, the said accused could not take any legal action against these persons. Also was argued that the prosecution has failed to prove its case against accused persons beyond reasonable doubt and the accused deserve acquittal.
20. The case of the prosecution primarily hinges on the testimonies of material and eye witnesses namely Vimlesh Kumar (PW3); Bharat @ Sunny (PW5) and Vikas Bhagwani (PW6).
21. The first informant Bharat @ Sunny (PW5) in the witness box narrated version per contra to the version contained in his lodged report, Ex. PW5/A. Bharat @ Sunny (PW5) testified that on the night of occurrence i.e. 4/5 years prior to 18.08.11 i.e., the date of his deposition, at about 10 or 10.30pm, while he was sitting at his shop, his cousin Vikas (PW6) and employee Vimlesh (PW3) came SC No. 35/2011 10/27 State Vs. Neeraj & Other there at Sarita Vihar, PocketN. Introducing new version, Bharat @ Sunny (PW5) deposed that on that night, his cousin Vikas (PW6) told him that money brought from customer of sale of goods of their shop was snatched by some person from Vimlesh (PW3), upon which Bharat @ Sunny (PW5) accompanied Vikas (PW6) and Vimlesh (PW3) to the huts at Rajasthani Camp. No such version of snatching of any sale proceedings by some person from Vimlesh finds mention in Ex. PW5/A. Instead, in Ex. PW5/A there is mention of the fact that at the shop of PW5 at 11.00pm in the night of occurrence Vikas (PW6) and Vimlesh (PW3) had come and stated that Vimlesh had been beaten up by Mukesh (accused). PW5 did not depose that PW6 and/or PW3 had told him that accused Mukesh had beaten PW3.
22. Vikas (PW6) had his own tale to tell. PW6 deposed that on the night of occurrence at his shop at JPocket Market, Sarita Vihar at 10/10.30pm, his employee Vimlesh (PW3) came to him and told him (PW6) that he was assaulted; PW6 then called his cousin Bharat @ Sunny (PW5) who also took his servant Pramod (now not SC No. 35/2011 11/27 State Vs. Neeraj & Other traceable) and they all went from the place of Vikas (PW6) to the house of accused persons. Vikas (PW6) did not whisper a word of having gone to the shop of his cousin Bharat @ Sunny (PW5) alongwith his employee Vimlesh (PW3) on the night of occurrence.
23. Vimlesh (PW3) testified that at 7.00/8.00pm on 21.05.05, on return from Shani Bazar after purchasing goods, he met Mukesh (accused) who was under influence of liquor and asked him (Vimlesh) to come back to Shani Bazar to which Vimlesh (PW3) refused. Accused Mukesh tried to force Vimlesh (PW3) to go to Shani Bazar, then accused Mukesh started beating Vimlesh (PW3) with legs and fists blows. As per Vimlesh (PW3), 3/4 other unknown persons, the known persons of accused Mukesh came there, who also gave beatings to Vimlesh (PW3) by legs and fists blows.
24. Vimlesh (PW3) deposed that he came to his house at around 8.30pm. Accused Mukesh with his accomplices followed Vimlesh (PW3) to his hut. Accomplices of accused Mukesh remained SC No. 35/2011 12/27 State Vs. Neeraj & Other outside his hut while accused Mukesh entered the hut of Vimlesh (PW3), gave fists blows to Vimlesh (PW3). Vimlesh (PW3) further testified that at around 9.00pm that night, he made call from his mobile to Vikas (PW6), his employer to call him as he was given beatings, upon which Vikas (PW6) came there i.e. at the hut of Vimlesh (PW3). As per Vimlesh (PW3), from his hut, he (PW3) and Vikas (PW6) had gone to the hut of accused Mukesh, which was nearby his hut. Vimlesh (PW3) did not whisper of either having gone to shop of Bharat @ Sunny (PW5) accompanied by his employer Vikas (PW6) or having gone to the place of his employer Vikas (PW6) that night. As per Vimlesh (PW3) when they reached outside the hut of accused Mukesh, then accused Mukesh was called outside the hut; when accused Mukesh came out, he started beating Vimlesh (PW3) as well as Vikas (PW6) and it was at that time when Bharat @ Sunny (PW5) also arrived. As per Vimlesh (PW3), accused Mukesh assaulted Bharat @ Sunny (PW5) on his head outside his (accused Mukesh) hut. Vimlesh (PW3) stated that he could not see by which object Bharat @ Sunny (PW5) was hit and he was 20 feet away from that place. As per Vimlesh (PW3), Vikas SC No. 35/2011 13/27 State Vs. Neeraj & Other must have called Sunny (PW5) by telephone.
25. Since Vimlesh (PW3) resiled from his previous statement, he was crossexamined at length by Ld. Addl. PP for the State. Vimlesh (PW3) denied the suggestions of Ld. Addl. PP for the State of having gone and informed Vikas (PW6) at his place, then to the shop of Sunny (PW5), of being beaten. Vimlesh (PW3) also denied the suggestions of Ld. Addl. PP for the State that he (PW3) and Vikas (PW6) went behind Sunny (PW5) and Pramod (now not traceable) had gone outside hut of Mukesh from where accused Mukesh was called or there Neeraj arrived from his hut, gave abuses saying now they had beaten Vimlesh and they will also see them. Vimlesh (PW3) also denied the suggestions of Ld. Addl. PP for the State that accused Neeraj and Mukesh had picked up the dandas lying outside the hut and ran towards Sunny (PW5) and Pramod to hit them and so hit them with danda causing injuries to Sunny and Pramod who started bleeding. PW3 admitted that accused Mukesh ran away with danda but denied of the fact that accused Neeraj ran away with danda. Even PW3 exonerated SC No. 35/2011 14/27 State Vs. Neeraj & Other accused Neeraj saying accused Neeraj had only come to intervene in the quarrel when he (PW3) was being assaulted by accused Mukesh. In the course of his crossexamination by Ld. Defence counsel, Vimlesh (PW3) again somersaulted from his earlier version saying he had not gone to the house of accused Mukesh but Vikas (PW6) and Bharat @ Sunny (PW5) had gone there and accused Mukesh had given beatings to Bharat @ Sunny and Pramod at his (Mukesh) house. Meaning there by, Vimlesh (PW3) in the course of cross examination by Ld. Defence counsel feigned ignorance of the occurrence in question making his earlier version a hearsay evidence in respect of Mukesh having assaulted Sunny on his head outside his (Mukesh) hut.
26. Vikas (PW6) testified that at the house of the accused persons, he (PW6) called Mukesh who came from inside his house, asked him (accused Mukesh) why he had given beatings to Vimlesh (PW3). As per Vikas (PW6), accused Neeraj was also present there at that time and both the accused Neeraj and Mukesh started abusing him, took out danda from near the house and gave danda SC No. 35/2011 15/27 State Vs. Neeraj & Other blow on the head of Sunny. Thereafter they went to the house of Sunny which was on the way from where Sunny was taken to PS. As per Vikas (PW6), they informed the police about the incident, police lodged the complaint and then Sunny was taken to hospital by the police.
27. Bharat @ Sunny (PW5) stated that when they reached the huts at Rajasthani Camp, then there in a hut accused Neeraj was sleeping, appearing to be under influence of liquor; besides accused Neeraj, another person was sleeping there. As per Bharat @ Sunny (PW5), on their knocking the door, the other person opened the door, from whom they inquired as to why money was snatched from Vimlesh (PW3). As per Bharat @ Sunny (PW5), then accused Neeraj, his brother whose name Bharat @ Sunny (PW5) was not knowing, but stated said person to be accused Mukesh by pointing towards him, started quarreling and fighting with him (PW5) and Vikas (PW6). Bharat @ Sunny (PW5) stated that their employee Pramod was also with them; 4/5 persons also came there and somebody hit with rod on his head. Bharat @ Sunny (PW5) SC No. 35/2011 16/27 State Vs. Neeraj & Other deposed that the person had hit the rod from his backside, so he could not see that person and was not able to identify whether it was accused Mukesh or Neeraj or some other person who had hit him. Bharat @ Sunny (PW5) stated that blood had come out from his head on receiving the rod blow and his entire T shirt was smeared with blood; Vikas (PW6) sustained some scratches on arms while none else (including Pramod) received injury in the quarrel.
28. No Tshirt of Bharat @ Sunny (PW5) smeared with blood was seized in the course of investigation. As per Bharat @ Sunny (PW5), Pramod had not received injuries but became unconscious and when water was poured over him, he regained consciousness. None amongst Vimlesh (PW3) and Vikas (PW6) testified that Pramod lost consciousness and when water was poured over him he regained consciousness. As per Bharat @ Sunny (PW5), his father came over there and made a call at no. 100 (at police control room); police came, took him to hospital where he received 16 stitches on the head and was discharged on the next day at SC No. 35/2011 17/27 State Vs. Neeraj & Other 5.00am after receiving treatment. Also Bharat @ Sunny (PW5) had stated in the course of crossexamination by Ld. Addl. PP for the State that 5/6 persons were the assailants who had given him beatings and initially accused Mukesh and Neeraj were there amongst them. Also Bharat @ Sunny (PW5) stated that after accused Mukesh @ Neeraj made shouts, 3/4 other persons joined them. Bharat @ Sunny (PW5) further deposed that after he had received injuries on his head, 5/6 assailants who had assaulted him had ran away. Also Bharat @ Sunny (PW5) was knowing accused Mukesh by face since he used to come to his shop occasionally regarding gas cylinders. Bharat @ Sunny (PW5) was not knowing accused Neeraj prior to the incident.
29. None amongst Vimlesh (PW3) and Vikas (PW6) deposed that the assailants were 5/6 in number including accused Mukesh and Neeraj.
30. Bharat @ Sunny (PW5) also elicited that his blood had fallen at the place of occurrence, Pramod had not got any bleeding SC No. 35/2011 18/27 State Vs. Neeraj & Other injury and his (PW5) statement was recorded at PS after return from AIIMS in between 9.00am or 10.00am on next day of occurrence. As per Bharat @ Sunny (PW5), it was Vimlesh (PW3) who had told the name of Neeraj as assailant to father of Bharat @ Sunny (PW5) consequent upon which father of Bharat @ Sunny (PW5) had told the name of accused Neeraj as assailant to police.
31. HC (now ASI) Satya Prakash (PW8) testified that pursuant to call vide DD No. 45B and 46B, he with Ct. Sri Krishan (PW1) reached the scene of crime and met injured Bharat @ Sunny (PW5) there, got Bharat @ Sunny (PW5) sent to AIIMS through Ct. Sri Krishan (PW1). Also PW8 came to know of another injured was stated to be removed to hospital. PW8 also reached hospital, found Pramod and Bharat @ Sunny (PW5) admitted there, collected their MLCs. Copies of said daily diaries no. 45B and 46B were neither filed nor proved.
32. PW8 deposed that he moved an application Ex. PW8/C seeking permission from the doctor regarding fitness of injured SC No. 35/2011 19/27 State Vs. Neeraj & Other Pramod. Ex. PW8/C dated 22.05.05 finds mention that Pramod got injured in quarrel and had come to PS, so was being sent for medical examination through Ct. Sri Krishan (PW1). Also PW8 testified that he moved application Ex. PW8/D seeking permission from doctor regarding fitness of injured Sunny (PW5). Ex. PW8/D dated 22.05.05 finds mention that injured Sunny (PW5) after receiving the injury in quarrel had come to PS, was being sent to hospital for medical examination under supervision of Ct. Sri Krishan (PW1). Afore elicited versions in Ex. PW8/C and Ex. PW8/D falsify the testimony of PW8 of having met Bharat @ Sunny (PW5) at spot in injured condition or from there injured Bharat @ Sunny (PW5) was sent to hospital. Even Vikas (PW6) deposed that from the place of occurrence after Bharat @ Sunny (PW5) had received injuries, Bharat @ Sunny (PW5) was taken to his home and from his home Bharat @ Sunny (PW5) was taken to Police Station, from where, he was taken to hospital by the police.
33. In MLC Ex. PW7/A of Bharat @ Sunny (PW5) dated 22.05.05, there is no mention of the arrival time of injured in the SC No. 35/2011 20/27 State Vs. Neeraj & Other hospital but there is mention of alleged history of assault, hit by one; no history of loss of consciousness/vomiting/ENT bleed. The injury sustained by Bharat @ Sunny (PW5) was 3cm laceration on left side of occipital while no other injury was observed. Name of assailant does not find mention in Ex. PW7/A. Number of assailant mentioned in Ex. PW7/A is one, not 5/6 persons as deposed by Bharat @ Sunny (PW5). Also Ex. PW7/A finds mention that at the time of his medical examination , Bharat @ Sunny (PW5), the patient was conscious with blood pressure as 114/70 and pulse rate as 76. Injuries were opined as simple caused by blunt object. MLC Ex. PW7/B of injured Pramod finds mention of being brought by Ct. Sri Krishan, No. 3096/SD (PW1), PS Sarita Vihar on 22.05.05, time of arrival is not mentioned. Ct. Sri Krishan (PW1) deposed of having taken injured Sunny (PW5) in TSR to hospital and having met Pramod admitted in hospital. PW1 did not testify that he had taken injured Pramod to hospital. Ex. PW7/B also finds mention of the alleged history of assault one hour back, c/o pain scalp, bleeding scalp, no history of loss of consciousness; seizure or vomiting. Laceration on left scalp was observed as the injury of Pramod in SC No. 35/2011 21/27 State Vs. Neeraj & Other said MLC.
34. Xray report, Ex. PW7/C finds mention of fracture of skull seen in Xray of Pramod on date 22.05.05. In the course of trial, injured Pramod was not produced in the witness box by the prosecution as time and again he was reported to be not traceable at the given address and his present whereabouts could not be ascertained.
35. Accused Mukesh in his statement under Section 313 Cr.P.C. had stated that injured Pramod was his relative from side of his inlaws and said Pramod was hit by somebody but not in his (Mukesh) presence. Name of the assailant does not find mention in MLC Ex. PW7/B of injured Pramod. Even number of assailants were not so mentioned therein. Blood Pressure 110/70 and pulse 88 per minute of injured Pramod was recorded in the MLC, Ex. PW7/B. Had Mukesh been the assailant and responsible for the injuries on the person of Pramod, there was every possibility of injured Pramod having named accused Mukesh as his assailant to SC No. 35/2011 22/27 State Vs. Neeraj & Other the examining doctor at the time of his medical examination, which could have found mentioned in the MLC of Pramod.
36. In his examination in chief, Vimlesh (PW3) did not say of assault on the person of Pramod by any of the arrayed accused. In the course of crossexamination by Ld. Addl. PP for the State, Vimlesh (PW3) parrot like admitted that Bharat @ Sunny (PW5) and Pramod had received injuries but yet Vimlesh (PW3) denied of accused Neeraj having assaulted Pramod and Bharat @ Sunny (PW5). As per Vimlesh (PW3), blood had started coming out from the head and injuries of Pramod.
37. In his examination in chief, Bharat @ Sunny (PW5) stated that he received rod blow on his head, Vikas (PW6) sustained some scratches in the arm while none else received injury in the quarrel. Bharat @ Sunny (PW5) categorically stated that Pramod had not received injuries but only became unconscious for sometime at the spot. Bharat @ Sunny (PW5) blowed hot and cold in the same breadth when in the course of crossexamination by Ld. SC No. 35/2011 23/27 State Vs. Neeraj & Other Addl. PP for the State he (PW5) stated that Pramod received one danda blow and became unconscious then. Bharat @ Sunny (PW5) could not elicit which person had given danda blow to Pramod since at the time of quarrel, assailants were 5/6 in number. As per Vikas (PW6), Pramod had not sustained injuries in the occurrence. On that count, even Vikas (PW6) was not crossexamined by Ld. Addl. PP for the State.
38. The initial information given to police and contained in Ex. PW5/A does not find mention the number of assailants to be 5 or 6 as deposed by Bharat @ Sunny (PW5). When read as a whole testimonies of Vimlesh (PW3), Bharat @ Sunny (PW5) and Vikas (PW6) embody entirely different versions of their meeting each other, the place of their meeting, their reaching the scene of crime, the time of their reaching at the scene of crime, the manner and sequence of occurrence, assault on the person of Bharat @ Sunny (PW5) as well as Pramod (now not traceable), number of assailants, who gave danda blows on head/person of Sunny (PW5) and/or Pramod, blood having come out of injuries of these injured, leaving SC No. 35/2011 24/27 State Vs. Neeraj & Other the scene of crime and reaching of hospital/Police Station/house of Bharat @ Sunny (PW5), medical examination of injured, who took injured Pramod to hospital, from where injured Sunny and Pramod were taken to hospital, when was the statement Ex. PW5/A recorded bringing into existence the lodged first informant report, whether accused Neeraj was named by Bharat @ Sunny (PW5) or his father in Ex. PW5/A.
39. Elicited contradictions, severe infirmities and inherent improbabilities emanating from testimonies of Vimlesh (PW3), Bharat @ Sunny (PW5) and Vikas (PW6) bring into fore of the fact that the report Ex. PW5/A was a result of due deliberations, consultations, exaggerations and contained embellishments. Another facet of the matter is that it were the material witnesses, Vimlesh (PW3), Bharat @ Sunny (PW5), Vikas (PW6) as well as Pramod (employee of PW5) who had gone to the place of abode of accused Mukesh and at said place the quarrel was initiated. Pursuant to arrest, both the accused Neeraj and Mukesh were not got medically examined by PW8 on 22.05.05 to ascertain whether SC No. 35/2011 25/27 State Vs. Neeraj & Other or not they had sustained any injuries on their person in the occurrence. Even their arrest memos, Ex. PW8/E and Ex. PW8/F do not find mention the time of their arrest on 22.05.05. There is every reasonable possibility of PWs 3, 5 and 6 with Pramod being aggressors on reaching the hut of accused Mukesh and/or taking law into their own hands and assaulting Mukesh and even Neeraj when he came to intervene, as had been stated by accused in their statements under Section 313 Cr.P.C. though on account of poverty and lack of resources, the accused could not pursue their remedies in law. The different versions of occurrence testified by material witnesses at complete variance from testimonies of each other have brought on record absolutely new cases, more than one each, elicited herein before, reconstructed by divorcing essential details presented by prosecution completely from the context and the background against which they are made. On reading the entire prosecution evidence, the testimonies of material witnesses Vimlesh (PW3), Bharat @ Sunny (PW5) and Vikas (PW6) can be classified as wholly unreliable as classified in the case of Vadivelu Thevar Vs. The State of Madras, AIR 1957, SC 614. Accordingly, no new case can SC No. 35/2011 26/27 State Vs. Neeraj & Other be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. The only available course to be made is discard the prosecution evidence in toto. (See Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962).
40. Accordingly, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accused persons are held not guilty and are acquitted for the offence charged. Superintendent Jail be directed to release the accused persons, if not required in any other case. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 30/05/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 35/2011 27/27