Delhi District Court
State vs . Sunny @ Bhairon & Anr. on 13 July, 2009
State Vs. Sunny @ Bhairon & Anr.
IN THE COURT OF SH. SANJAY SHARMA
ADDITIONAL SESSIONS JUDGEIII (EAST)
KARKARDOOMA COURTS, DELHI
State
Versus
1 Sunny @ Bhairon
S/o Raghubir
R/o Jhuggi, Gali No.19,
Ajeet Nagar,
Gandhi Nagar, Delhi.
2 Bhawan @ Pawan @ Baban
S/o Inder Singh
R/o Jhuggi No.2815/57,
Gali No.5, Chander Puri,
Gandhi Nagar, Delhi.
Sessions Case No. 06/07
FIR No. 194/06
Under Section 307/34 IPC
Police Station Gandhi Nagar
Date of Institution of Case 04.01.2007
Date on which judgment Reserved 06.07.2009
Date on which judgment delivered 13.07.2009
Page 1 of 19
State Vs. Sunny @ Bhairon & Anr.
J U D G M E N T :
1. The case of the prosecution in brief is that on 05.6.2006 at about 10.30 PM, the complainant/victim Raj Kumar was returning back to his home from his job and when he reached at Gali No.11, Chand Mohalla, he found two boys standing there who approached him and asked him the way to Jheel Chowk. He asked them as to why they were asking the way from him only on which they threatened and one of the boys gave him a fist blow and another stabbed him with a knife in his abdomen, as a result of which he started bleeding and the two boys fled away. The victim then proceeded towards his house and in the mid way, at Gali No.7, Raghubar PuraI, he met police officials who took him to SDN Hospital where his statement was recorded and the present case was registered.
2. During the course of investigation, accused Sunny @ Bhairon and Bhawan @ Pawan were arrested and a knife allegedly used in the incident was recovered. After completion of investigation, charge sheet was filed against the two accused for the offence punishable U/s.307/34 IPC.
3. After the case was committed to the Court of Sessions and on Page 2 of 19 State Vs. Sunny @ Bhairon & Anr.
considering the material on record, charge was framed against both the accused for the offence punishable U/s.307/34 IPC dated 08.2.2007 to which the accused pleaded not guilty and claimed trial.
4. Prosecution examined 14 witnesses in all at the trial. PW1 HC Surender Pal was the Duty Officer who recorded the present FIR and proved it as Ex. PW1/A. PW2 HC Mahender Singh was another Duty Officer who had recorded DD No.30A, Ex. PW2/A.
5. PW3 Raj Kumar was the complainant/victim who deposed the above facts and further deposed that he had identified accused Bhawan during the TIP. He also proved the TIP proceedings as Ex. PW3/A & B and proved his statement to the police as Ex. PW3/C. He also identified his blood stained shirt and vest as Ex. P1 & P2 respectively.
6. PW4 HC Chunni Lal alongwith ASI Brij Bhushan had met the injured and had taken him to the hospital. He had got the case registered and had handed over the copy of the FIR and Rukka to ASI Brij Bhushan. He also proved the seizure memo of the seizure of the blood stained clothes of injured as Ex. PW4/A. PW5 Ct. Tehjib Haider was a witness to the arrest of accused Sunny and Page 3 of 19 State Vs. Sunny @ Bhairon & Anr.
proved the recovery memo of knife recovered from the said accused as Ex. PW5/A and his disclosure statement as Ex. PW5/B. PW6 Ct. Harnam Singh was the witness to the arrest of accused Bhawan and proved his arrest memo as Ex. PW6/A and his personal search memo as Ex. PW6/B.
7. PW7 Sh. Ajay Goel, Ld. MM, proved the TIP proceedings in respect of accused Sunny wherein he refused to participate in the TIP as Ex. PW7/A to C.
8. PW8 HC Subhash had apprehended accused Sunny on 06.8.2006 in case FIR No.276/06 of PS Gandhi Nagar U/s.25 Arms Act and in his presence the disclosure statement of the said accused was recorded wherein he admitted his involvement in the present case. PW9 SI Parveen Kumar was the IO of the case FIR No.276/06 as aforesaid and had arrested accused Sunny in that case and had recorded his disclosure statement as above. He also partly investigated the present case as the IO of this case was on leave and arrested accused Sunny in this case as well vide arrest memo Ex. PW9/A and also proved the pointing out memo of the place of incident, at the pointing out of the said accused as Ex. PW9/B.
9. PW10 ASI Brij Bhushan alongwith PW4 Chunni Lal had taken the Page 4 of 19 State Vs. Sunny @ Bhairon & Anr.
injured to the hospital. He had also recorded the statement of complainant Ex. PW3/C and had prepared Rukka Ex. PW10/A, seized the clothes of the injured vide memo Ex. PW4/A and then had visited the spot.
10. PW11 Inspt. Anil Sharma was the main IO of this case. He deposed about the investigation carried out by him and proved the site plan as Ex. PW11/A. He applied for the TIP of accused Sunny vide application as Ex. PW11/B and proved his request for TIP as Ex. PW11/C. He also arrested accused Bhawan and recorded his disclosure statement Ex. PW11/D and prepared the pointing out memo of the place of incidence Ex. PW11/E. He further applied for the TIP of accused Bhawan vide application Ex. PW11/F and collected the copy of TIP proceedings Ex. PW11/G. He also sent the knife used in the incidence for the opinion of the doctor and filed the charge sheet in court.
11. PW12 Ms. Poonam Chaudhary, Ld. MM, proved the TIP proceedings in respect of accused Bhawan @ Pawan as Ex. PW3/A.
12. PW13 HC Jogender Singh was the MHC(M) who proved the entries in Register No.19 as Ex. PW13/A. PW14 Dr. Manoj Kumar proved the MLC of the Page 5 of 19 State Vs. Sunny @ Bhairon & Anr.
injured as Ex. PW14/A and further gave opinion in respect of the injuries and the knife recovered from accused Sunny, for the first time before Court, to the effect that the injuries on the person of injured could have been caused by the said weapon.
13. Statement of the accused were recorded U/s.313 Cr.P.C. and the entire incriminating evidence was put to them which they denied and pleaded innocence. Accused Sunny took the plea that he was arrested under Arms Act on 06.8.2006 and was sent to jail in unmuffled face and his photographs were also taken and he was shown to the witness at the PS. Similarly, accused Bhawan took the plea that he was arrested in a case U/s.411 IPC by the police of PS Gandhi Nagar and was sent to jail in unmuffled face and was shown to number of persons at the PS and that his photographs were also taken. No witness in defence was examined by any of the accused despite opportunity given.
14. I have heard Sh. A.K. Srivastav Ld. Addl. PP for State, Sh. S.K. Ahluwalia Advocate for accused Bhawan @ Pawan and Sh. Jagdish Chandra Advocate for accused Sunny.
Page 6 of 19
State Vs. Sunny @ Bhairon & Anr.
15. It was argued on behalf of State by Ld. Addl. PP that the case of the prosecution stands proved beyond reasonable doubt as PW3 sustained injuries which have been proved by PW14. It was further submitted that the accused Bhawan was identified by the victim during TIP and he identified both the accused as his assailants before the Court and as such there is no doubt left to prove the guilt of the accused.
16. On the other hand, it was submitted by Ld. Counsel for the accused that despite the fact that both the accused were identified by the victim in Court, the number of contradictions appearing in the testimony of PW3 and other witnesses regarding the facts and other circumstances as well as of the fact that there had been considerable delay in holding the TIP of the accused, makes the prosecution case highly doubtful. It was further submitted that both the accused were arrested in different cases and they were arrested in this case only on the basis of their disclosure statement and that of their coaccused which is not admissible. No public witness was ever cited or examined in this case. Hence, it was submitted that despite identification of accused in the Court and identification of accused Bhawan in TIP, the case is not proved against the accused since the accused were shown to the witness after their arrest and before the TIP which is clear from the evidence which has come on Page 7 of 19 State Vs. Sunny @ Bhairon & Anr.
record and hence prayed for their acquittal.
17. According to the criminal jurisprudence, a person can be convicted for an offence only if the case is proved against him "beyond reasonable doubt". This means that if there is a reasonable doubt in the mind of the Court while passing the judgment against the accused, he cannot be convicted. Undoubtedly, PW3 sustained sharp injuries in his abdomen and he identified both the accused in the Court as his assailants which is a substantive piece of evidence and also identified accused Bhawan during the TIP, however, despite that it has to be seen whether the case against the accused stands proved "beyond reasonable doubt".
18. The testimony of PW3 i.e. the victim is full of contradictions as pointed out by the Ld. Counsel for the accused. These contradictions are also to be read alongwith testimony of other witnesses examined in this case.
19. It was argued at the outset by the Ld. Defence counsel that no motive for the attack has been attributed to the accused. As per the deposition of PW3, accused asked him the way to Jheel Chowk on which he showed ignorance and immediately both the accused caught him and he was stabbed by accused Page 8 of 19 State Vs. Sunny @ Bhairon & Anr.
Sunny. The motive is apparently, not clear from this act, however, it is a settled law that when the case is based on the testimony of eyewitness, the motive is not that important.
20. In crossexamination, PW3 deposed that there was very dim light at the spot and at the time of the incidence and he further admitted that none of the accused was known to him prior to the incidence. He also deposed that after sustaining the injuries he started going towards his house. On his way, he met two police officials i.e. PW4 and PW10 who took him to the hospital. The conduct of the witness is also suspicious in this respect. He never tried to raise any alarm nor called the PCR nor tried to go to the PS but instead started back to his home. It was per chance that PW4 and PW10 met him and took him to the hospital, otherwise he would have gone to his house.
21. In his further crossexamination he deposed that he did not remember if Ex. PW3/C i.e. his statement to the police on which FIR was registered, was already written or was blank when he put his thumb impression upon it. He further deposed that whatever he hurriedly uttered, it was written down by the police but could not see if the police was writing down his statement or not. He also failed to remember as to what were his replies to the Page 9 of 19 State Vs. Sunny @ Bhairon & Anr.
queries put by the police in the hospital.
22. Thus, he has himself made Ex. PW3/C a doubtful document and the same cannot be treated as his statement.
23. PW3 in his crossexamination deposed that when his statement was being recorded by the police, he was not fit to make statement and by the time the doctor came he lost consciousness. In respect of this fact, PW4, who had taken him to the hospital alongwith PW10, deposed that when he met the injured, the injured was lying on the road and was unconscious, totally contrary to the deposition of PW3 who deposed that he was proceeding towards his house. PW4 further deposed that when the injured PW3 was taken to the hospital he was unconscious. He again said that the injured was slightly conscious and could tell his name only and he answered the rest of the questions put by the doctor in signals by waving his hand and then again deposed that the injured was talking but could not tell his name at the place where he met them. His entire deposition is thus selfcontradictory and contrary to that of PW3. He further deposed that the injured was wearing black pant, white banyan and white shirt and the pant was also stained with blood and was seized. This deposition is again not only contrary to the deposition of Page 10 of 19 State Vs. Sunny @ Bhairon & Anr.
PW3 but also against the record since PW3 deposed that only shirt and vest were seized at the hospital and he could not say if his pant was stained with blood or seized by the police. He also deposed that he was wearing green colour pant at that time, contrary to the deposition of PW4.
24. In respect of this fact, PW10 deposed that when he obtained the MLC of the injured, the doctor had opined on it that the victim was fit for statement. The MLC Ex. PW14/A also states so. Thus, the deposition of PW10 and PW14 are totally contradictory to the deposition of PW3 & PW4. PW10 further deposed that he seized the clothes of PW3 from the doctor vide memo Ex. PW4/A. However, the doctor PW14 deposed that he had never seized the clothes of the victim. PW10 further deposed that he could not found any blood stain at the spot and even could not identify the spot exactly. PW4 also deposed that no blood was found at the spot. However, PW3 in his crossexamination deposed that blood fell down on the ground but the police did not lift the blood in his presence.
25. It was further deposed by PW10 that when he met the victim for the first time at the corner of Gali No.7, one Harender was also alongwith him and he had accompanied them to the hospital. He further deposed that he asked Page 11 of 19 State Vs. Sunny @ Bhairon & Anr.
about the incident from Harender but he was not having any knowledge about it. This is a totally new fact introduced by this witness as neither PW3 nor PW4 deposed about the presence of such a person. The particulars of said Harender were never provided by PW10 nor he was made a witness to this case, though he was allegedly accompanying the victim when PW10 first met him.
26. The most vital part of the case is regarding the identity of the two accused as the assailants. It is a matter of record that accused Sunny was first of all arrested in this case. He was arrested on 06.8.2006 in case FIR No.276/06 of PS Gandhi Nagar itself, U/s.25 Arms Act. He made a disclosure statement in that case, admitting his involvement in the present case. It was only on the basis of said disclosure statement that the said accused was also arrested in this case on the same day i.e. 06.8.2006. In his said disclosure statement, he also named coaccused Bhawan as his associate in the alleged incident. The application for the TIP of the accused Sunny was moved on 21.8.2006. No reason has come on record for explaining this inordinate delay in moving the application for TIP of the said accused. The application for his TIP was marked on 21.8.2006 itself by the Ld. Concerned MM to his Link MM on the same day. The Ld. Link MM fixed the TIP of the accused on the said application for 02.9.2006 and the TIP of the accused Sunny was conducted on 02.9.2006 i.e. Page 12 of 19 State Vs. Sunny @ Bhairon & Anr.
almost after a month from his arrest. In the order dated 21.8.2006 the Ld. MM has noted while assigning the application for TIP that the IO wants to go on casual leave. This does not explain the reason for moving the application for TIP after 15 days from the arrest of the accused. The Ld. Link MM also took about 12 days in holding the TIP of the accused, unmindful of the fact that delay in such matter can be vital as the accused was regularly being produced in the Court for his remand. As rightly pointed out by the Ld. Counsel for the accused, the copies of the remand papers on record show that accused Sunny was never produced in Court in muffled face since the day he was arrested and till his TIP was held. Though in the remand application dated 07.8.2006 the IO has recorded that the accused is being produced in muffled face, however, there is no observation to this effect by the Ld. MM. In the remand application dated 21.8.2006, neither the IO has mentioned in the application for remand that the accused is being produced in the muffled face nor the Ld. MM and so on till the TIP was conducted. Thus, there was every possibility for the witness to have seen the accused before the TIP. It was the defence of the accused that his photographs were taken at the PS and he was shown to the witness at the PS. This possibility cannot be ruled out and as such the accused Sunny was within his rights to refuse for the TIP.
Page 13 of 19
State Vs. Sunny @ Bhairon & Anr.
27. As regard accused Bhawan is concerned, he was arrested in this case on 12.9.2006. It was the defence of the accused as put to the IO that this accused was arrested in another case U/s.411 IPC and was in JC on 14.8.2006. The IO PW11 showed his ignorance that accused Bhawan was in JC on 14.8.2006 in a case of his own police station. This could not be believed when the co accused Sunny had already disclosed his name in his disclosure statement on 06.8.2006 itself. Further, conduct of the IO regarding his attempt to arrest accused Bhawan is also quite suspicious. In his crossexamination, he admitted that on 14.8.2006 he came to know for the first time that accused Sunny had disclosed the name of accused Bhawan as coaccused of this case and on that date itself he came to know the address of accused Bhawan but despite that he never visited even once to his house for effecting his arrest for the reasons best known to him. He only deposed that he had visited the area of Chander Puri where accused Bhawan resided and even in the area, it was not revealed to him that the said accused was in Jail. Thus, after having knowledge on 14.8.2006 that Bhawan was also an accused in this case, he arrested him only on 12.9.2006 i.e. after about a month and there is nothing on record to show as to what attempts did he make to arrest him though he was having the address of the accused. According to PW11, accused Bhawan was arrested on the basis of a secret information. That too from near railway line, Chander Puri i.e. from Page 14 of 19 State Vs. Sunny @ Bhairon & Anr.
within the area where the said accused resided.
28. In his statement U/s.313 Cr.P.C. accused Bhawan stated that he was arrested in a case U/s.411 IPC by the police of PS Gandhi Nagar and was sent to Jail in unmuffled face on 17.8.2006 & 18.8.2006 and was also produced in the Court in unmuffled face. He further deposed that he was shown to number of persons at PS Gandhi Nagar and his photographs were also taken.
29. As per the remand papers on record, accused Bhawan was produced in the Court on 13.9.2006 after his arrest in muffled face as observed by the Ld. MM. The application for his TIP was moved on the same day and it was held on 22.9.2006.
30. Though records of the case in which the accused Bhawan was arrested U/s.411 IPC have not been placed on record, I find force in the arguments of the Ld. counsel that it was only after accused Bhawan was released in that case, he was arrested in this case. Otherwise, there is no explanation as to why accused Bhawan could not be arrested between 14.8.2006 and 12.9.2006 when his name, address and other particulars were known. Thus, the possibility of this accused as well having been shown to the witness, cannot Page 15 of 19 State Vs. Sunny @ Bhairon & Anr.
be ruled out.
31. In Shaikh Umar Ahmad Shaik Vs. State AIR 1998 SC 1922, it was held by the Hon'ble Apex Court that when there is sufficient materials to prove that there was strong possibility of the accused being shown to the witnesses before Test Identification Parade, conviction of the trial Court based on their identification in the witness box is not justified because such identification before Court is meaningless and hence set aside the conviction.
32. In the instant case as well, as discussed above, there is reasonable and strong suspicion of the accused having been shown to the witness before their TIP was organized and, therefore, their identification before the Court by PW3 become meaningless. The fact as deposed by PW3 that there was very dim light at the time of incidence and for that reason he could not tell the colour of the clothes worn by the accused and also could not see whether he was assaulted with a knife or any other sharp object, assumes importance and fortifies the view that accused were shown to him before TIP. No other witness of fact was cited or examined.
33. Apart from the aforesaid, the conduct of the victim PW3 and his Page 16 of 19 State Vs. Sunny @ Bhairon & Anr.
presence in Delhi after the incidence is also doubtful. In his crossexamination, PW3 deposed that he remained hospitalized for about 20 days and after being discharged, he went to his native place where he remained for three and a half months. According to the MLC Ex. PW14/A, this witness was discharged after nine days i.e. on 14.6.2006. If he went to his native place thereafter and remained there for three and a half months, it means that he returned on or about 20th of September. If that is so, how he participated in the TIP of accused Sunny on 02.9.2006. He again deposed that he returned back from his native place about 15 days prior to 02.9.2006 i.e. some time between 5th and 8th August, 2006. In his crossexamination, he deposed that after being discharged from the hospital he has been residing at his native place till date. Hence, his versions regarding his presence in Delhi after the incidence is seriously in doubt. He also deposed in his crossexamination that some police officials went to his native place to give summons to him. He further deposed that after discharge from the hospital, he never met the Delhi Police officials and came to Delhi whenever he was called by the police. He again deposed that he failed to recollect if he met any police official after his discharge from the hospital and prior to 02.9.2006. His version is, therefore, inconsistant and selfcontradictory.
34. In this case, the weapon of offence used in the incidence though Page 17 of 19 State Vs. Sunny @ Bhairon & Anr.
claimed to have been recovered is again in doubt. Accused Sunny was arrested in a case under Arms Act and a knife was shown to have been recovered from him (FIR No.276/06). In his disclosure statement, recorded in that case as well as in this case, the said accused disclosed that he used that very knife in the present incident. The said knife was never sent for the opinion to the doctor concerned, as deposed by the doctor PW14. The opinion of the doctor regarding the said knife having been used in the present incident was taken only in the Court during his examination. PW14 after seeing the MLC and the knife in the Court gave a vague opinion that the said injury was possible with the said knife. In his crossexamination, he deposed that it was possible that the injuries to the victim could have been caused with a similar sharp edged weapon. He further admitted that the opinion given by him regarding the knife in Court was his general opinion and not with any scientific or mathematical precision. Thus, this opinion of the doctor that the injuries to the victim could have been caused by the knife so recovered cannot be relied upon. The knife was never sent for FSL examination.
35. It is also relevant to mention here that accused Sunny has already been acquitted in case FIR No.276/06 under 25 Arms Act for the illegal possession of knife which was so shown to have been recovered from him and Page 18 of 19 State Vs. Sunny @ Bhairon & Anr.
has been assigned as the weapon of offence in this case. Thus, with acquittal of Sunny in that case, the story of the prosecution regarding the recovery of weapon of offence of this case or the disclosure statement of accused Sunny disclosing his involvement in the present case and naming accused Bhawan as his coaccused also goes off.
36. In the light of above appreciation of evidence, it is clear that the defence has been able to create a reasonable doubt in the prosecution case and it cannot be said that despite the victim identifying the accused in the TIP or in Court, the case of prosecution has been proved beyond reasonable doubt. Hence, both accused namely Sunny and Bhawan are extended the benefit of doubt and accordingly acquitted of the offence punishable U/s.307/34 IPC. They are set at liberty. Accused Sunny be released from Jail if not wanted in any other case and personal bond and surety bond of accused Bhawan are discharged. File be consigned to Record Room.
Announced in the Open Court on: 13th July, 2009.
(SANJAY SHARMA) ADDL. SESSIONS JUDGEIII(EAST) KARKARDOOMA COURTS, DELHI Page 19 of 19