Delhi District Court
State vs . Gopal And Ors. on 6 September, 2018
FIR No.1147/16
State Vs. Gopal and ors.
Police Station : Mangol Puri
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.629/17
CNR No. DLNW010098002017
State
Vs
1. Gopal
S/o. Dharmaveer @ Kallu
R/O W160, G Block,
Mangol Puri, Delhi
2. Subhash
S/o. Surajmal
R/O W28/170, G Block
Mangol Puri, Delhi
3. Dharamveer @ Kallu
S/o. Baleshwar
R/O W28/116, G Block,
Mangol Puri, Delhi
FIR No. : 1147/16
Police Station : Mangol Puri
Under Section : 307/341/34 IPC
Date of Institution in Sessions Court : 26.09.2017
Date when judgment reserved : 05.09.2018
Date when judgment pronounced : 06.09.2018
Page No. 1 of 16
FIR No.1147/16
State Vs. Gopal and ors.
Police Station : Mangol Puri
JUDGMENT
1. This is the case under section 307/341/34 of Indian Penal Code (IPC).
2. The facts of the case in brief are that on 17/12/2016 on receipt of DD no. 86B, ASI Babu Lal along with Ct. Vikram reached at the spot i.e. G block where he came to know that injured was taken to SGM hospital by PCR van. Thereafter he reached at SGM Hospital where he obtained MLC of injured. On 20.12.2016, he again went to the hospital and recorded the statement of injured/complainant Joginder @ Gattu in which he has stated that on 17.12.2016, at about 09:20 PM, while he was strolling in the GBlock Park after having meals, he was surrounded by four boys and out of them, Gopal caught hold of him from behind and Kallu, Gainthul and Subhash stabbed him with knives on his chest. After stabbing him, they they all ran away from the spot. PCR van came at the spot and took him to GM Hospital. Investigation was carried out. Accused persons were arrested during investigation. The weapon of offence could not be recovered. On completion of the investigation, chargesheet was filed in the Court.
Page No. 2 of 16 FIR No.1147/16Police Station : Mangol Puri
3. On compliance of Section 207 Cr.P.C, the charge sheet was committed to this Court by the Court of Ld. MM.
4. Charge under Sections 307/34 IPC was framed against all the accused persons vide order dated 30/10/2017, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined in total 6 witnesses.
PUBLIC WITNESSES
6. Complainant Sh. Joginder @ Gattu has been examined as PW5. His testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
7. PW2 Ct. Ravinder has deposed in sync with PW6 SI Babu Lal with whom he has joined the investigation.
8. PW3 HC Nitya Dev has is the Duty Officer, who proved the copy of FIR, endorsement on rukka and certificate u/s 65B of Indian Evidence Act, DD no. 86B as Page No. 3 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri Ex.PW3/A, ExPW3/B, ExPW3/C and ExPW3/D respectively.
9. PW4 HC Mantu Kumar has deposed in sync with PW6 ASI Babu Lal with whom he has joined the investigation.
10. PW6 ASI Babu Lal has deposed that on 17.12.2016, he received DD No. 86 B and thereafter, he alongwith Ct. Vikram went to the spot i.e. GBlock Park, Mangol Puri, Delhi where they came to know that the injured had already been taken to hospital. Thereafter, he alongwith Ct. Vikram went to SGM Hospital, where the doctor concerned handed over him the MLC of injured/complainant Joginder @ Gattu. Injured was suffering from severe pain he did not give statement at that time. On 20.12.2016, he went to the hospital and recorded the statement of injured/complainant Joginder @ Gattu which is Ex.PW5/A and prepared rukka which is Ex.PW6/A. Thereafter, he went to the PS and got the case registered. Thereafter, he went to the spot of the incident and prepared the site plan, Ex.PW6/B. He proved arrest memos of accused Gopal, Dharamvir, Subhash and JCL Sandeep @ Gentul as Ex. PW6/C, Ex.PW6/D, Ex.PW6/E and Ex.PW6/F . Thereafter, he deposited the MLC of the injured for opinion regarding the nature of injury. The doctor opined the nature of injury as grievous in Page No. 4 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri nature. He added Section 307 IPC in the case diary against al the accused persons and JCL and on 22.03.2017, he alongwith Ct. Ravinder went to the house of the accused Gopal and Dharamvir and arrested them vide arrest memos Ex.PW2/B and Ex. PW2/E and their personal search was carried out vide memos Ex. PW2/F and Ex. PW2/C. On 07.06.2017, he formally arrested the accused Subhash vide arrest memo Ex. PW4/B. MEDICAL EVIDENCE
11. PW1 Dr. Vipin Dabas, CMO, SGM Hospital has deposed that on 17.12.2016, he examined one Joginder, who was brought to the hospital with the alleged history of physical assault. On local examination, He had found three injuries which he had mentioned in MLC bearing no. 23359/16, ExPW1/A and after initial examination, he referred the patient for further management to SR Surgery Dr. Gurmohan. As per the surgery opinion, the nature of injury was grievous.
STATEMENT OF ACCUSED
12. After completing the prosecution evidence, statement of all the accused persons was recorded under Page No. 5 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence was put to them, which have been denied by them in toto.
ARGUMENTS OF BOTH SIDES
13. I have heard the Sh. Rajat Gupta, ld. Addl. PP and Ms. Shivali Gautam, Ld.counsel for the accused persons and have perused the material available on record.
14. It is argued by the Ld. Counsel for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubts. She has argued that the case of the prosecution was solely built on the statement of PW5 Sh. Joginder @ Gattu who allegedly was the victim of the incident but his testimony shows that he is not a reliable witness. It is further stated that thee are lot of contradictions and inconsistencies in his statement and he has criminal antecedents and involved in several criminal cases which is clear from his cross examination and hence his testimony cannot be relied. It is further submitted that the entire story of the prosecution is highly doubtful and does not have any ring of truth.
Page No. 6 of 16 FIR No.1147/16Police Station : Mangol Puri
15. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to establish its case beyond any shadow of doubt. It is contended that having regard to the testimony of PW5 Sh. Joginder @ Gattu, whose testimony is truthful and reliable and is of sterling quality coupled with the other evidence on record in the form of investigation conducted by the police, the prosecution has been able to prove its case.
OCULAR EVIDENCE
16. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
17. In the present case the entire case of the prosecution is based upon the eye witness account given by the victim Joginder @ Gattu (PW5) who has identified the accused persons and also proved the incident which had taken place Page No. 7 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri at the spot. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witness, hence it is necessary for this Court to first determine whether he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence Page No. 8 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
18. Victim Joginder @ Gattu (PW5) has deposed in court that on 17/12/2016 at about 9:30 p.m. while he was taking stroll in G Block park, after having meals, he was surrounded by four boys namely, Gopal, Kallu, Gainthul and Subhash and he knew them already as they were living in the same locality. He further deposed that Kallu and Gainthul caught him from his front and back respectively and he was stabbed with knives on his front right side by Gopal and his maternal uncle Subhash. After stabbing him, they beat him with legs and fists as well and dragged him and thereafter they ran away from the spot.
19. In his statement ExPW5/A he had averred that on the fateful day while he was strolling in the said park, he Page No. 9 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri was caught by Gopal and thereafter he was stabbed by three persons i.e. Gopal's maternal uncle, Gainthul and Kallu with intention to kill him.
20. Hence, it is clear that there is lot of contradiction regarding the sequence of events and the manner of commission of offence between his testimony in the court and in his initial statement ExPW5/A on the basis of which FIR was registered.
21. In his statement ExPW5/A he had attributed the role of catching hold of him on accused Gopal whereas in his deposition as PW5, he has attributed on Gopal, the role of stabbing him with knife. Similarly, in his statement ExPW5/A he had attributed the role of stabbing him with knife upon accused Kallu and Gainthul whereas in his deposition as PW5, he has attributed upon them the role of catching hold of him.
22. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012 :
Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the Page No. 10 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements.
23. In the present case, in my view, the contradictions mentioned above, in the testimony of the victim, are vital in nature and it goes to the root of the matter and there is nothing on record to explain about the same.
ABSENCE OF PUBLIC WITNESSES
24. In the present case, there is no independent witness produced by the prosecution in support of its version of the manner of commission of offence by the accused persons. Despite the fact that PW5 Sh. Joginder @ Gattu has admitted in his cross examination that G block park Mangol Puri, Delhi where he was strolling is surrounded by residential houses and on the fateful day of incident, other persons were also taking stroll, the police was unable to join even one public witness in its proceedings. It appears that the investigating agency did not make any sincere Page No. 11 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri effort to join any public witness in the said proceeding. IO PW6 ASI Babu Ram has not even averred in his deposition that he made any effort to join in the investigation any public person who may have witnessed the incident in question.
25. In a case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an after thought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons, who could be present at the spot at the time of commission of offence, were not included in the proceeding, the case of the prosecution has become highly Page No. 12 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri doubtful, in view of the contradictions in the statement of victim Joginder @ Gattu as discussed above.
26. No doubt as contented by Ld. Addl. PP for the State, ordinarily the public at large shows their disinclination to come forward to become witnesses and even in the absence of independent witnesses, the court can rely upon the sole testimony of the victim. However, Hon'ble Apex Court has also made it clear that if a court has any good reason to suspect the truthfulness of the prosecution witnesses, the court can certainly take into account the issue of non joining of any public witness, especially when they are present at the spot. In the present case, there are a number of contradictions in the statement of complainant/victim, which go to the root of the matter and make the case of the prosecution highly doubtful to have taken place in the manner as narrated in the charge sheet.
CREDITWORTHINESS OF THE VICTIM
27. It is settled law that the purpose of cross examination of a witness is not only to test the veracity of his statement or to elicit admission but also to impeach the creditworthiness of the witness. In the present case, Ld. Counsel for the defence has used the same to its hilt. PW5 Page No. 13 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri Sh. Joginder @ Gattu has admitted in his cross examination that many criminal cases are pending against him including a case under Arms Act and he has remained in jail in the said cases. When he has criminal antecedents, his testimony requires greater scrutiny, which could not stand, in view of discussion above.
ABSENCE OF MOTIVE
28. There is one more aspect of the case which appears to be important. Nothing has come on record as to what was the motive for the accused injuring the complainant. Joginder @ Gattu has deposed in his statement that he did not know why the accused persons had assaulted him. It is not expected that the victim would be given knife blows, without any cause/history for the same. As stated above, victim has not given any reason for the same in his statement. However, it is the case of the defence that the complainant sells smack in G block, Mangol Puri, Delhi and he uses the said park for dealing in smack and due to this, people of the locality were annoyed with him and they had given beatings to him which resulted injuries to him. In the background of the criminal antecedents of the victim, his unreliable testimony and the contradictions therein, it cannot be ruled out that the version of the defence may be Page No. 14 of 16 FIR No.1147/16 State Vs. Gopal and ors.
Police Station : Mangol Puri true.
CONCLUSION
29. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
30. In view of the above discussion, in the opinion of this court, it can be said that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, the accused persons are acquitted from the charges framed against them.
31. The accused persons were directed to furnish personal bond in the sum of Rs.10,000/ with one surety each in the like amount u/s 437A CrPC.
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32. Personal bond and surety bond u/s 437A CrPC in the sum of Rs.10,000/ was furnished on behalf of accused Gopal and Subhsh on 5/9/2018 and the same were accepted by the court.
33. It was stated that accused Dharamveer could not arrange any surety due to his weak financial condition, hence he was directed to furnish personal bond in the sum of Rs.10,000/ u/s 437 A CrPC. Same was furnished and accepted.
34. The case property, if any, is confiscated to the state and the same may be destroyed after the period of appeal and if appeal is preferred, subject to the order of Ld. Appellate court.
35. File be consigned to record room, after due compliance.
Digitally signed by DEEPAK DEEPAK GARG
Announced in the open court GARG Date:
2018.09.06
th
on this 6 day of September, 2018. 13:17:52 +0530 (DEEPAK GARG) ASJII, NORTHWEST ROHINI: DELHI Page No. 16 of 16