Delhi District Court
State vs Sunil @ Bagri on 27 September, 2023
State V. Sunil @ Bagri & Ors.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT) TIS
HAZARI COURTS, DELHI
CNR No.DLWT01-000753-2014
SC No.56630/2016
FIR No.752/2014
PS: Khyala
U/s 308/34/174-A IPC
State Vs. Sunil @ Bagri & Ors.
a) Date of commission of offence : 27/09/2014
b) Name of the complainant : Sh. Mahesh
S/o Late Sh. Chunni Lal
c) Name of accused and address :(1) Sunil @ Bagri
S/o Sh. Babu Lal
R/o B-3/791, 12 ½ yards,
Raghubir Nagar, Delhi
(2) Ravi
S/o Sh. Raju @ Raja
Ram
R/o- Sukariya Nagar,
Guru Nanak Colony,
Ajmer, Rajasthan.
(3) Santosh
S/o Sh. Raju @ Raja
Ram
R/o- C-37, 12 ½ yards,
Raghubir Nagar, Delhi.
d) Offence complained of : u/s. 308/34/174-A IPC
e) Plea of accused : Pleaded not guilty
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.09.27
17:13:07
+0530
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State V. Sunil @ Bagri & Ors.
f) Final order : ACQUITTED
Date of institution of the case : 21/11/2014
Date of committal : 28/11/2014
Date on which judgment was : 18/09/2023
reserved
Date of judgment : 27/09/2023
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 27/09/2014 at 9:15 PM at 12 ½ yards Park, Main Road, near Gurudwara, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khyala, accused Sunil @ Bagri, Ravi and Santosh in furtherance of their common intention had caused the injury on the head of the complainant Mahesh with iron rod with such intention or knowledge and under such circumstances that if all accused would have caused death of the complainant, they would have been guilty of offence of culpable homicide not amounting to murder. It is also the case of the prosecution that all accused also gave beatings to Krishna, Badli and Mukesh. It is also the case of the prosecution that accused Santosh was declared proclaimed offender vide order dated 18/06/2015 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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passed by Ld. M.M. REGISTRATION OF FIR, INVESTIGATION AND CHARGE-
SHEET
2. In the present case, on the complaint of the complainant Sh. Mahesh, FIR bearing No.752/2014 Police Station Khyala U/s. 308/34 IPC was got registered by the Police of Police Station Khyala. After registration of the FIR, the matter was investigated by the police and on completion of the investigation, the present charge-sheet was submitted in the Court of Ld. MM on 21/11/2014 for trial of the accused Sunil @ Bagri. In the present case, supplementary charge-sheet qua accused Ravi was submitted in the Court of Ld. MM on 22/01/2016 and supplementary charge-sheet qua accused Santosh was submitted in the Court of Ld. MM on 24/01/2018.
COGNIZANCE
3. Cognizance of the offence was taken by the Ld. MM vide order dated 21/11/2014. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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SUPPLY OF COPIES AND COMMITTAL
4. Copies of the charge-sheet were supplied to all accused in compliance of section 207 Cr.P.C. Thereafter, vide order dated 28/11/2014 passed by the Ld. MM, the present case was committed to the Court of Sessions.
CHARGE
5. Finding a prima-facie case against all accused, charge for the offence u/s. 308/34 IPC was framed against all accused and charge for the offence u/s 174-A IPC was also framed against the accused Santosh, to which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
6. Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined nine witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 Smt. Krishna
(2) PW-2 Smt. Badli
(3) PW-3 Dr. R.K. Chaubey
Digitally signed
by VIJAY
SHANKAR
VIJAY Date:
SHANKAR 2023.09.27
17:13:48
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(4) PW-4 Sh. Mahesh
(5) PW-5 Sh. Prahlad
(6) PW-6 ASI Subhash
(7) PW-7 HC Bhagwan
(8) PW-8 HC Rajesh
(9) PW-9 Sh. Mukesh
DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) MLC bearing No.37580 of Mahesh Ex.PW-3/A (2) MLC bearing No.37581 of Krishna Ex.PW-3/B (3) MLC bearing No.37582 of Mukesh Ex.PW-3/C (4) MLC bearing No.37595 of Sunil @ Bagri Ex.PW-3/D (5) Complaint of the complainant Ex.PW-3/A (6) Arrest memo of accused Sunil @ Bagri Ex.PW-6/A (7) Personal search memo of accused Sunil @ Bagri Ex.PW-6/B It is pertinent to mention here that in the present case, MLC bearing No.37580 of Mahesh had been exhibited as Ex.PW-3/A and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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complaint of the complainant had also been exhibited as Ex.PW-3/A. In view of the same, hereinafter, complaint of the complainant Ex.PW-3/A shall be read as Ex.PW-3/A-1.
It is also pertinent to mention here that on 26/07/2023, joint statement of all accused was recorded wherein they admitted the contents of FSL report dated 31/03/2015 prepared by Ms. Poonam Sharma, Senior Scientific Officer (Biology) and the FSL report dated 31/05/2015 was exhibited as Ex.PX-1.
Apart from aforesaid documentary evidence, the prosecution has also relied upon the other evidence (case property) i.e. shirt worn by the complainant Mahesh at the time of occurrence Ex.P-1.
8. TESTIMONIES OF PROSECUTION WITNESSES.
(i) PW-1, in her testimony had deposed that on 27/09/2014, she alongwith her brother Mahesh and mother Badli went Raghubir Nagar for seeing the 'dandiya function'. Her brother-in-law namely Santosh (jeth) kidnapped her sister Neha on two occasions. FIRs were got lodged in this regard. Her younger sister Neha did not turn up after the second kidnapping. On 27/09/2014, while they were seeing the dandiya, they made search of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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her younger sister Neha but she was not there. After seeing the dandiya, they were about to return. Accused Sunil alongwith her husband Ravi and Jeth namely Santosh surrounded them. Accused Sunil and Ravi caught hold the hands of her brother and accused Santosh, who was having one iron rod, caused blow on the head of her brother. Accused Sunil, Ravi and Santosh gave kick and fist blows to her brother Mahesh. She alongwith her mother tried to save her brother then accused Sunil alongwith Ravi and Santosh gave beatings to them. They made call to the police at number 100. Police officials came at the spot. Ravi and Santosh fled away from the spot, however, they apprehended the accused Sunil and handed over him to the police. PCR officials took them to the Guru Govind Singh Hospital for medical examination, where they were got medically treated. She did not remember the date, month, however, six months ago, she had gone to Begumpur to attend marriage, where she received a telephone call of her friend Manisha, who informed her that accused Ravi and Santosh were present in the Raghubir Nagar in a marriage function. Thereafter, she went to PS Sultanpuri but police did not provide her any assistance. Then, she went to Raghubir Nagar alongwith her mother, where she found accused Ravi under influence of liquor. She made a call to police at number 100. Digitally signed by VIJAY SHANKAR
VIJAY Date:
SHANKAR 2023.09.27
17:14:26
+0530
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Police officials came there and arrested the accused Ravi. When she reached there, accused Santosh had already fled away. Four months prior to the incident, her jeth had kidnapped her younger sister Neha, who was minor at that time and an FIR No.704/2014 was registered at PS Sultanpuri in this regard. Prior to that also, once her jeth had also kidnapped her younger sister Neha but at that time she had returned home. Her matrimonial home is at 12 ½ Sq. Yards, Raghubir Nagar, Khyala. On 27/09/2014, at about 9:15 PM, she alongwith her mother and brothers Mahesh and Mukesh went to Raghubir Nagar in search of her sister Neha in Dandiya Function, which was going-on in the park near Gurudwara. They were searching for her but she could not be found. Thereafter, they were watching Dandiya, suddenly her husband i.e. accused Ravi, her jeth i.e. accused Santosh and B.C. of the area namely, Sunil @ Bangri came there. Accused Ravi and Sunil @ Bangri caught hold of hands of her brother Mahesh and accused Santosh hit iron rod on head of her brother Mahesh. Accused Ravi and Santosh exhorted to Sunil @ Bangri "AAJ TO MAHESH KA KAAM TAMAM KAR HI DETE HAI". Blood started oozing out of head of her brother Mahesh. When they tried to rescue Mahesh, all the three accused persons dragged her and gave beatings to her. She was still having scars on her left hand and nose. Her Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2023.09.27
17:14:37
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mother also sustained injuries due to beatings given by accused persons. When her brother Mukesh tried to rescue Mahesh, accused Sunil @ Bangri ran after him with knife in his hand. Accused Ravi and Santosh also chased Mukesh. She called at number 100. Thereafter, accused Sunil @ Bangri returned back and caught hold her collar and started misbehaving with her. She saw that police personnels coming from Dandiya duty. She raised alarm and she caught hold of accused Sunil @ Bangri. She handed over accused Sunil to those police officials. Her mother was taking her brother to police station when police officials met her and took them to the hospital. Her brother Mahesh was treated at the hospital. She and her mother were also medically examined at the hospital. Thereafter, they were taken to the police station. Their statements were recorded and they were relieved. Accused Ravi and Santosh both were absconding and declared PO. She had received an information that accused Ravi was present in a marriage at a park, near Tankiwali Jhuggi, Raghubir Nagar. First of all, she and her mother went to PS Sultanpuri but police officials did not accompany them. Thereafter, she alongwith her mother went to the venue of marriage and she called at number 100. PCR police officials reached there and they had shown accused Ravi to them. They apprehended accused Ravi and he was taken to Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2023.09.27
17:15:02
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the police station. She also went to the police station and informed to police officials that accused Ravi was proclaimed offender in the present case as well as other cases. Accused Ravi was taken into custody by the police.
PW-1 was cross-examined by counsel for all accused.
(ii) PW-2, in her testimony had deposed that on 27/09/2014, she alongwith her son Mahesh, Mukesh and her daughter Krishna went to Raghubir Nagar in search of her younger daughter Neha, who was minor and was kidnapped by accused Santosh, brother-in-law (jeth) of her daughter Krishna. Husband of Krishna namely Ravi had informed them through one of his friend via telephone that her daughter Neha was recovered and they can take her. So, they had gone to Raghubir Nagar and at about 9:15 PM, they were standing near Gurudwara, where Dandiya (folk dance) was being played. They were looking around for Neha. All of a sudden, accused Sunil @ Bangri, accused Santosh and accused Ravi came there. Accused Santosh was having an iron rod in his hand. Accused Santosh exhorted "PAKRO PAKRO SALON KO AAJ INKA KISSA HI KHATAM KAR DO, YE BAAR BAAR LADKI DHUNDNE KYO AATE HAI". Accused Sunil @ Bangri and Ravi caught hold of hands of her son Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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and accused Santosh hit him on his head with iron rod. They tried to rescue him and they were also beaten by the aforesaid accused persons. They managed to apprehend accused Sunil @ Bangri, while other two accused persons managed to escape from there. Her daughter Krishna called at number 100. In the meantime, police officials met them and they handed over accused Sunil to them. She alongwith her daughter Krishna took her son Mahesh to Guru Govind Hospital. Her son Mahesh was medically examined at the said hospital. Her statement was recorded by the police.
Accused persons have filed 11 false cases upon them. They prevented them to attend the Court.
PW-2 was cross-examined by counsel for all accused.
PW-2 was also re-examined by Additional PP for the State.
(iii) PW-3 in his testimony had deposed that on 27/09/2014, at about 9:48 PM, he examined Mahesh S/o Chunni Lal vide MLC No.37580 Ex.PW-3/A. The patient was brought by Ct. Bhagwan with alleged history of assault beaten by known person. Patient was conscious and oriented and his vitals were stable. The nature of injuries were opined as simple by him and the type of weapon was blunt. On the same day, at about 10:10 PM, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Mukesh S/o Chunni was brought to Casualty by HC Sunil Kumar PCR vide MLC No.37582 Ex.PW-3/C for medical examination but the patient absconded from casualty as informed by his sister Krishna at about 10:10 PM. He waited for the patient till 11:20 PM but he did not report so the blank MLC was handed over to the IO. On the same day, at about 9:58 PM, he examined Smt. Krishna W/o Ravi and D/o Chunni Lal vide MLC No.37581 Ex.PW-3/B. The patient was brought by HC Sunil PCR with alleged history of assault beaten by known person. Patient was conscious and oriented and her vitals were stable and the nature of injuries were opined as simple by him and the type of weapon was blunt. On 28/09/2014, at about 7:00 AM, he examined Sunil/Bagadi S/o Babu Lal vide MLC No.37595 Ex.PW-3/D. The patient was brought by Ct. Subhash with alleged history of assault beaten by public. Patient was conscious and oriented and his vitals were stable. The nature of injuries were opined as simple by him and the type of weapon was blunt.
PW-3 was cross-examined by counsel for the accused Sunil @ Bagri and Ravi.
(iv) PW-4 in his testimony had deposed that in the year 2014, he
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2023.09.27
17:15:33
+0530
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State V. Sunil @ Bagri & Ors.
was working as photographer. His elder sister Krishna was married with accused Ravi in the year 2012. After the marriage of Krishna with accused Ravi, his younger sister Neha was kidnapped by the accused Santosh.
Accused Santosh is the elder brother of accused Ravi. In respect of said kidnapping, his mother got registered FIR No.704/2014 u/s 363 IPC PS Sultanpuri. Though, he did not remember the exact date but on one day in the month of September 2014, somebody informed them that his sister Neha could met them at Raghubir Nagar, where a Dandiya programme was being organized. Accordingly, he alongwith his mother and his sister Krishna went to the said park for tracing Neha. At about 9:15 PM, while they were present in a park at Raghubir Nagar and for looking for his sister Neha suddenly, some unknown persons came there and they were armed with iron rod and one amongst the said unknown person struck iron rod over his head as a result of which, he bleeded, fell down and lost his consciousness. When he regained his consciousness, he found himself admitted in Guru Gobind Singh hospital. In the said hospital, police met him and made inquiries from him and he had narrated the same facts which he had deposed above. Accused persons had no role in assaulting him and he was assaulted by some unknown persons. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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PW-4 was cross-examined by Addl. PP for the State. PW-4 was not cross-examined by counsel for all accused despite opportunity.
(v) PW-5 in his testimony had deposed that in the year 2011, they had kept Smt. Prema and her son Santosh as a tenant in one room on the first floor of his house and the monthly rent was Rs.2,000/-. They remained as tenant for about 3 years or so. During the period when Smt. Prema resided as tenant, her son Ravi and the wife of Ravi used to visit the said tenanted premises. In the month of June 2014, Smt. Prema had vacated the said premises and after their shifting, he was not aware as to where Smt. Prema was residing. During investigation, IO had recorded his statement in this regard.
PW-5 was cross-examined by counsel for all accused.
(vi) PW-6 in his testimony had deposed that on 27/09/2014, he was posted at PS Khyala as Constable and was on night emergency duty from 8:00 PM to 8:00 AM alongwith SI Ram Bhau. On that day, DD No 49-A was marked to SI Ram Bhau and accordingly, he had accompanied him to the place of occurrence i.e. 12.5 gaj park, main road, near Gurudwara, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Raghubir Nagar. Upon reaching at the spot, it was revealed to them that injured had been taken to GGS hospital. Accordingly, he alongwith SI Ram Bhau went to the said hospital, where SI Ram Bhau had collected the MLCs of Mahesh, Krishna and Mukesh. In the said hospital, SI Ram Bhau had recorded the statement of Sh. Mahesh and after recording statement, prepared rukka and rukka was handed over to him. Accordingly, he went to PS, got the FIR registered, came back to the spot and handed over copy of FIR and original rukka to SI Ram Bhau. During investigation, IO had effected the arrest of accused Sunil vide arrest memo Ex.PW-6/A and conducted his personal search vide memo Ex.PW-6/B. During investigation, IO had recorded his statement in this regard.
PW-6 was cross-examined by counsel for all accused.
(vii) PW-7 in his testimony had deposed that on 27/09/2014, he was posted at PS Khyala as Constable and was on patrolling duty. While on patrolling duty, he received an information regarding quarrel at N-Block.
Accordingly, he went to the place of occurrence. Upon reaching at the place of occurrence, it was revealed to him that injured Mahesh had been taken to Guru Gobind Singh Hospital prior to the reaching of the PCR at the spot.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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On the spot, he had met the sister of injured Mahesh and other relatives, who went to hospital in a PCR van. He had also visited the said hospital, where he met SI Ram Bhau, who conducted the proceedings.
PW-7 was cross-examined by counsel for all accused.
(viii) PW-8 in his testimony had deposed that on 05/11/2014, on the instruction of IO/SI Ram Bhau, he had collected one exhibit sealed with the seal of RBP from MHC(M) vide RC No.166/21/14 and deposited the said exhibit at FSL Rohini. Thereafter, he had returned back to PS and handed over the acknowledgement to MHC(M). So far as the said exhibit/pullanda remained with him, the same was not tampered in any manner. During investigation, IO had recorded his statement in this regard.
PW-8 was cross-examined by counsel for all accused.
(ix) PW-9 in his testimony had deposed that in the year 2014, he was a student. He is having two sisters. His elder sister Krishna was married with accused Ravi in the year 2012. After the marriage of Krishna with accused Ravi, his younger sister Neha was kidnapped by accused Santosh. Accused Santosh is the elder brother of accused Ravi. In respect of said Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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kidnapping, his mother got registered FIR No. 704/2014 u/s 363 IPC PS Sultanpuri. Though, he did not remember the exact date but on one day in the month of September 2014 somebody informed them that his sister Neha could met them at Raghubir Nagar, where a Dandiya programme was being organized. Accordingly, he alongwith his mother, his brother Mahesh and his sister Krishna went to the said park for tracing Neha. At about 9:15 PM, while they were present in a park at Raghubir Nagar and looking for his sister Neha suddenly, some unknown persons came there and they were armed with iron rod and one amongst the said unknown person struck iron rod over the head of his brother Mahesh as a result of which he bleeded, fell down and lost his consciousness. Due to fear, he ran away whereas his sister Krishna took Mahesh to hospital.
PW-9 was permitted to cross-examine by Addl. PP for the State, as he was resiling from his previous statement. PW-9 was cross- examined by Addl. PP for the State. PW-9 was not cross-examined by counsel for all accused despite opportunity.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C.
9. Separate statements of all accused Sunil @ Bagri, Ravi and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Santosh were recorded u/s. 313 Cr.P.C. wherein they denied the allegations against them and rebutted the prosecution evidence against him and claimed that they are innocent and have been falsely implicated in this case. It was also stated that they have no connection with the commission of offence of the present case. It was also stated that they do not want to lead evidence in their defence.
FINAL ARGUMENTS
10. This Court heard the final arguments advanced by Ld. Addl. PP for the State and Ld. Counsel for all accused and carefully perused the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Addl. PP for the State that the prosecution witnesses have duly supported the case of the prosecution and from the testimonies of prosecution witnesses and the documentary as well as other evidence relied upon by the prosecution, the prosecution has been able to prove its case against all accused beyond reasonable doubt and all accused be convicted for the offences as mentioned in the charge. On the other hand, during the course of final arguments, it was submitted by counsel for all accused that all accused have been falsely Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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implicated in the present case and there is no incriminating evidence on record against all accused and the prosecution has failed to prove its case against all accused beyond reasonable doubt and all accused be acquitted in the present case.
In order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
It was held by Hon'ble Supreme Court of India in case titled as "Sharad Birdhi Chand Sarda Vs. State of Maharashtra", {AIR 1984 SC 1622} that following conditions must be fulfilled for successful prosecution of the accused:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
INGREDIENTS OF OFFENCES
11. In the present case, charge for the offence u/s. 308/34 IPC was framed against all accused and charge for the offence u/s. 174-A IPC was also framed against the accused Santosh.
Section 308 IPC has prescribed the punishment for the offence of attempt to commit culpable homicide. The essential ingredients of the offence under section 308 IPC are as under:-
(i) that the accused has committed an act,
(ii) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting murder,
(iii) that the offence was committed under such circumstances, if the accused by that act had caused death he would have been guilty of culpable homicide,
(iv) type of weapon used in the offence and on which part of the body injury caused. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Section 174-A IPC has prescribed the punishment for the offence for non-appearance in response to a proclamation under Section 82 Cr.P.C. The essential ingredients of the offence under section 174-A IPC are as under:-
(i) proclamation under Section 82 Cr.P.C. has been issued against the accused,
(ii) the accused has failed to appear at the specified place and the specified time as required by a proclamation under Section 82 Cr.P.C.
(iii) the accused has failed to comply with the requirements of the proclamation under Section 82 Cr.P.C.
(iv) where a declaration has been made under Section 82 (4) Cr.P.C. pronouncing the accused as a proclaimed offender.
12. Law relating to appreciation of evidence of the witnesses has been elaborated by the Hon'ble High Court of Delhi in case titled as "Satish @ Bombaiya Vs. State", { 44 (1991) DLT 561} and it was held that :-
"........ While appreciating the evidence of a witness Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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13. FINDINGS
(a) It is the case of the prosecution that on 27/09/2014 at 9:15 PM at 12 ½ yards Park, Main Road, near Gurudwara, Raghubir Nagar, Delhi within the jurisdiction of Police Station Khyala, accused Sunil @ Bagri, Ravi and Santosh in furtherance of their common intention had caused the injury on the head of the complainant Mahesh with iron rod with such intention or knowledge and under such circumstances that if all accused would have caused death of the complainant, they would have been guilty of offence of culpable homicide not amounting to murder. It is also the case of the prosecution that all accused also gave beatings to Krishna, Badli and Mukesh. It is also the case of the prosecution that accused Santosh was declared proclaimed offender vide order dated 18/06/2015 passed by Ld. M.M. PW-4 is the complainant/injured in the present case. PW-1, PW-2 and PW-9 are also stated to be injured.
The sanctity of testimony of injured witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Abdul Sayeed Vs. State of MP." {(2010) 10 SCC 259} and it was held that:-
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness.......
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein".
PW-4, who is the complainant/injured in his testimony had deposed that on the date of incident, some unknown persons came there and they were armed with iron rod and one amongst the said unknown persons struck iron rod over his head as a result of which, he bleeded, fell down and lost his consciousness and when he regained his consciousness, he found himself admitted in Guru Gobind Singh hospital. PW-4 in his testimony had Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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also deposed that accused persons had no role in assaulting him and he was assaulted by some unknown persons.
PW-4, who is the complainant/injured, has not supported the case of the prosecution and turned hostile. PW-4 in his testimony has not proved the contents of his complaint Ex.PW-3/A-1 on the basis of which, FIR of the present case was got registered. On perusal of testimony of PW-4, it is clear that the accused Ravi and Santosh were known to PW-4 being his relatives. PW-4 in his testimony had specifically deposed that on the date of incident, some unknown persons came there and they were armed with iron rod and one amongst the said unknown persons struck iron rod over his head as a result of which he bleeded, fell down and lost his consciousness. PW-4 in his testimony had also deposed that the accused persons had no role in assaulting him and he was assaulted by some unknown persons.
PW-9 has also not supported the case of the prosecution and turned hostile. PW-9 in his testimony had specifically deposed that on the date of incident, some unknown persons came there and they were armed with iron rod and one amongst the said unknown persons struck iron rod over the head of his brother Mahesh, as a result of which, he bleeded, fell Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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down and lost his consciousness. PW-9 in his testimony nowhere deposed that the accused persons had caused any injury to him.
PW-2 is also stated to be injured in the present case. The testimony of PW-2 is self contradictory. PW-2 in her examination-in-chief had deposed that at the relevant time, date and place, accused persons had caused the injuries to her, her daughter Krishna and sons Mahesh and Mukesh. On the other hand, PW-2 in her cross-examination had deposed that the accused persons had not assaulted her son Mahesh and daughter Krishna. PW-2 also deposed that Mahesh and Krishna got false FIR registered against accused persons as accused Santosh eloped with her daughter Neha. PW-2 also deposed that her daughter Krishna is no more residing with her husband i.e. accused Ravi.
PW-1 is also stated to be injured in the present case. As per testimony of PW-1, accused persons have caused injuries to her, PW-2, PW-4 and PW-9 at the relevant time, date and place. PW-4 and PW-9 in their testimonies had specifically deposed that some unknown persons had caused injury to PW-4 with iron rod. PW-2 in her cross-examination had also deposed that the accused persons had not assaulted her son Mahesh and daughter Krishna. PW-2 also deposed that Mahesh and Krishna got false Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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FIR registered against the accused persons as accused Santosh eloped with her daughter Neha. PW-1 in her cross-examination had also deposed that due to the fact that accused Santosh eloped with her younger sister Neha, the relations were strained between her family and the family of her in-laws.
PW-1 also deposed that as on today, she has not been residing with her husband i.e. accused Ravi. PW-1 also deposed that she has been involved in 4 to 5 criminal cases and the said cases were registered falsely by her in-
laws. In view of the same, the testimony of PW-2 has also become doubtful.
(b) It is pertinent to mention here that initially, the charge-sheet was filed against the accused Sunil @ Bagri on 21/11/2014. Thereafter, supplementary charge-sheet qua accused Ravi was filed on 22/01/2016 and supplementary charge-sheet qua accused Santosh was filed on 24/01/2018.
In the present case, PW-3, who is the medical witness, was examined on 24/08/2016 and he was cross-examined by counsel for the accused Sunil @ Bagri and Ravi. In the present case, accused Santosh was arrested later on and charge was framed against the accused Santosh on 15/10/2018. After framing of charge against accused Santosh, PW-3 was not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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re-called for re-examination and cross-examination. No reasonable explanation has been adduced on record by the prosecution for the same. Hence, the testimony of PW-3 cannot be read in evidence. In view of the same, MLCs of injured persons and the factum regarding injuries to the injured persons are not proved on record by the prosecution.
(c) PW-1 in her testimony had deposed that accused Sunil @ Bagri was having knife at the time of incident. PW-2 in her testimony had deposed that one knife was recovered from the possession of the accused Sunil @ Bagri. In the complaint Ex.PW-3/A-1 and testimonies of PW-4 and PW-9, it is not mentioned that the accused Sunil @ Bagri was having knife at the time of incident. There is nothing in the testimonies of other prosecution witnesses as well as charge-sheet that the accused Sunil @ Bagri was having knife at the time of incident and knife was recovered from the possession of accused Sunil @ Bagri. No reasonable explanation has been adduced on record by the prosecution for the same.
(d) PW-1 in her examination-in-chief had deposed that she called the police at 100 number but PW-2 in her cross-examination had deposed Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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that her brother Mahesh made a call at 100 number. Testimony of PW-1 is contradictory in this regard. No reasonable explanation has been adduced on record by the prosecution for the same.
(e) It is the case of the prosecution that accused Santosh was declared proclaimed offender vide order dated 18/06/2015 passed by Ld. M.M. In the present case, charge for the offence u/s. 174-A IPC was framed against the accused Santosh. The proceedings vide which the accused Santosh was declared proclaimed offender, have not been exhibited during the course of examination of prosecution witnesses. In the present case, the proceedings vide which the accused Santosh was declared proclaimed offender have not been proved on record by the prosecution. In the present case, the process u/s 82 Cr.P.C. against the accused Santosh was stated to be executed by IO SI Ram Bhau. In the present case, IO/process server SI Ram Bhau has not been examined by the prosecution to prove the factum regarding execution of process u/s 82 Cr.P.C. against the accused Santosh.
In the supplementary charge-sheet qua accused Santosh, the witnesses of Kalandara u/s. 41.1 (c) Cr.P.C. have been cited but the said witnesses have not been examined by the prosecution. No reasonable explanation has been Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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adduced on record by the prosecution for the same.
(f) As per PW-1, PW-2, PW-4 and PW-9, accused Santosh had kidnapped Neha and they went to search Neha at the spot where the said incident taken place. In the present case, the said Neha is the material witness. In the present case, the prosecution neither cited nor examined Neha as prosecution witness. No reasonable explanation has been adduced on record by the prosecution for the same.
(g) In the present case, the IO has not been examined by the prosecution to prove the investigation conducted by him. No reasonable explanation has been adduced on record by the prosecution for the same.
(h) In the present case, there are material contradictions and inconsistencies in the testimonies of prosecution witnesses as discussed above. The prosecution has failed to clarify regarding the aforesaid material contradictions and inconsistencies in the testimonies of prosecution witnesses.
It was held by Hon'ble Supreme Court of India in case titled as Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra", { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions / omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
14. In the present case, factum regarding injury and medical opinion have not been proved on record by the prosecution in view of the fact that PW-4 & PW-9 have turned hostile and there are material contradictions and inconsistencies in the testimonies of prosecution witnesses. The prosecution has failed to prove the fact that at the relevant time, date and place, the accused persons had caused the injuries to the injured persons.
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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In the present case, the nature of injuries sustained by the complainant and injured persons, mode & manner of assault, weapon of offence, motive, intention and knowledge are relevant factors. The aforesaid factors have not been proved on record by the prosecution.
15. CONCLUSION Applying priori and posteriori reasonings, this Court is held that prosecution has not been able to establish its case against all accused Sunil @ Bagri, Ravi and Santosh for the offences u/s. 308/34/174-A IPC beyond reasonable doubt.
16. Accordingly, all accused Sunil @ Bagri, Ravi and Santosh are acquitted for the offence u/s. 308/34 IPC and accused Santosh is also acquitted for the offence u/s. 174-A IPC.
File be consigned to record room after due compliance.
Digitally
signed by
VIJAY
VIJAY SHANKAR
Announced in the open Court SHANKAR Date:
2023.09.27
on 27/09/2023 17:19:22
+0530
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, Delhi
FIR No.752/2014 PS Khyala Page No.32 of 32