Delhi District Court
State vs Tota Ram And Anr on 25 January, 2025
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ-04
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No. DLCT01-017966-2024
SC No. 753/2024
FIR No. 432/2024
PS Sarai Rohilla
U/s. 109(1)/126(2)/238/3(5) BNS
STATE
vs.
1. Tota Ram
S/o. Late Sh. Nand Kishor
R/o. L-2/48, Shastri Nagar,
Sarai Rohilla, Delhi.
2. Ved Prakash
S/o. Late Sh.Nand Kishor
R/o. L-2/48, Shastri Nagar,
Sarai Rohilla, Delhi.
Date of institution of case : 16.11.2024
Date on which judgment reserved : 25.01.2025
Date on which judgment pronounced : 25.01.2025
Decision : Acquitted.
JUDGMENT
1. In the present case, accused persons namely Tota Ram and Ved Prakash have been facing trial for the charge of offences under Section 109(1)/126(2)/3(5)/238 BNS.
FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 1 of 12
2. The brief facts of the case are that the present FIR was registered on the complaint of complainant Tilak Raj on the allegations that on 27.07.2024 at about 10.00 p.m., when the complainant returned to home, he saw that his younger brothers namely Tota Ram and Ved Prakash were in drunk condition. Both the accused persons restrained him and started beating him and the accused Ved Prakash had hit on the face of the complainant with broken glass bottle due to which the complainant sustained injuries on his face and neck and thereafter, both the accused persons fled away from there. His sister called on 100 number. PCR came and took the injured to the HRH Hospital.
3. After completion of investigation, charge-sheet was filed in the Court against the accused persons.
4. After complying with the provisions of Section 207 Cr. P.C., Ld. M.M. committed the case to the Court of Sessions.
5. The charge u/s. 109(1)/126(2)/3(5)/238 BNS was framed against the accused persons to which they pleaded not guilty and claimed trial.
6. During prosecution evidence, in order to substantiate its case against the accused, the prosecution examined total 4 witnesses.
7. PW-1 Sh. Tilak Raj deposed that both the accused persons are his real brothers. He further stated that on FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 2 of 12 27/07/2024, after consuming liquor, when he reached at his house, quarrel took place between him and accused persons at his house. Accused persons also used to stay on the second floor of his building. After the quarrel between him and the accused persons, he did not know what was happened thereafter. He further stated that his sister had called police. Police had taken him to Hindu Rao hospital where he was treated. He further stated that he did not know how he got injury on his body as he was not in his sense due to consumption of liquor. Thereafter, he got treated at RML hospital as his sister had taken him to RML hospital from Hindu Rao hospital. Police had taken his signatures on 28/07/2024. He further stated that he did not know what was recorded in the said statement. PW-1 was duly cross-examined by the Addl. PP for State as he was resiling from his earlier statement made before the police.
8. PW-2 Tej Pal Singh was the Duty Officer who registered FIR Ex. PW-2/A, endorsed the rukka Ex. PW-2/B and certificate u/s. 65-B Evidence Act as Ex. PW-2/C.
9. PW-3 Ms. Seema deposed that the property in which she resided belongs to his mother. They are five brothers and she is only the daughter. She further stated that her second brother expired in the year 2010. She had filed a civil case against her brothers for obtaining injunction as her brothers were not allowing to stay her in the house. Thereafter, her elder brother namely Vijay Kumar had FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 3 of 12 filed partition suit after filing her case against them. Both the said cases are still pending. She further stated that she did not know anything about the present case as she used to work as nurse at the time of incident and she was not present at the house. She further stated that she is also working as private nurse these days. On the day of incident when she came to her house, she noticed her brother Tilak Raj received injuries. Complainant Tilak Raj asked her to call police and she called police and police came to the spot and they took her brother to hospital. PW-3 was duly cross-examined by the Addl. PP for State as she was resiling from her earlier statement made before the police.
10. PW-4 IO SI Yogender deposed that on 27/07/2024, he was on night emergency duty and at about 10:55 PM, a call was received and one lady caller had stated that there was a dispute between the brothers in front of her house. The said call GD No.138A Ex. PW-4/A was received to him. He alongwith constable Navjeet reached to the spot where we came to know that injured was already taken to Hindu Rao hospital. Thereafter, they reached to the said hospital and came to know that the injured left the hospital. He further stated that in the intervening night of 27- 28/07/2024 at about 1:00 AM, caller had made a call that they needs police help. The said call Ex. PW-4/B was marked to him. He made inquiries from the caller and came to know that injured was taken to RML hospital by FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 4 of 12 PCR for treatment. He alongwith Ct. Satbir reached to RML hospital. He collected the MLC of the injured Tilak Raj and he also made inquiries from him who stated that he was having pain and he will give his statement at later stage. He further stated that at about 11:00 AM, Tilak Raj came to PS and gave his statement to him. He recorded statement Ex. PW-1/A and he attested the signature at point B. He made endorsement Ex. PW-4/C bearing his signature at point A and he had given the same to duty officer who had registered the FIR. After registration of the case, he had collected the copy of FIR and original rukka as the investigation was marked to him. Thereafter, he alongwith complainant reached to the spot and at the instance of the complainant, he prepared site plan Ex. PW-1/B bearing his signature at point B. He called crime team to the spot and got inspected the spot. Crime team had taken photographs of the spot Ex. PW-1/C. He collected the crime scene report Mark A. Photographer of the crime team had taken the photographs of the spot alongwith certificate u/s 63 BSA Ex. PW-4/D bearing the signature of photographer Ct. Vikas Kumar at point A. He had identified his signature as he was well acquainted with his signature and writings. He searched for the accused persons but they were not found. Complainant Tilak Raj handed over his blood stained clothes to him. He had kept the same in a pullanda and duly sealed with the seal of YK and seized the same vide seizure memo Ex. PW-1/B bearing his signature at point B. He had FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 5 of 12 recorded the statements of witnesses u/s 161 Cr. PC. He had deposited the case property in malkhana. He further stated that on the next day i.e. 29/07/2024, he alongwith HC Veer Singh went in search of accused and a secret informer informed the whereabouts of accused Tota Ram who was at Hanuman Murti, 56 Bigah park, Shastri Nagar, Delhi. They alongwith secret informer went to the said spot, on the pointing out secret informer, they had apprehended the accused Tota Ram. He arrested accused Tota Ram vide arrest memo Ex. PW-4/E bearing his signature at point A. He recorded his disclosure statement vide memo Ex. PW-4/F bearing his signature at point A. He also conducted the personal search of accused Tota Ram vide Ex. PW-4/G bearing his signature at point A. After getting his medical examination, he was produced before the Court and sent him to judicial custody. He searched for co-accused Ved Prakash. Despite his severe efforts, accused Ved Prakash was not found. He further stated that on 22/08/2024, he received secret information about the whereabouts of Ved Prakash. He alongwith Ct. Vinod and secret informer reached to the spot i.e. 56 Bigah Park, Shastri Nagar and at the instance of secret informer, they apprehended accused Ved Prakash. Witness correctly identified him. He arrested accused Ved Prakash vide arrest memo Ex. PW-4/H bearing his signature at point A. He recorded his disclosure statement Ex. PW-4/1 bearing his signature at point A. He conducted his personal search vide memo Ex. PW-4/J FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 6 of 12 bearing his signature at point A. He further stated that the accused had taken to the garbage place at Shastri Nagar and stated that he had thrown the broken bottle with which he had attacked Tilak Raj. Despite searching the said spot, the broken bottle was not found. After getting the medical examination of accused Ved Prakash, he was kept in lockup and on the next day, he was produced before the Court and sent him to Judicial Custody. During investigation, he had recorded the statement of Seema who had witnessed the incident. The MLC of injured issued from Hindu Rao Hospital as Mark B. He had submitted that MLC at RML hospital for obtaining the final opinion but the officials RML hospital had stated him that accused had left the spot without completion of his treatment. Injured had not given any subsequent medical papers to him. After completion of investigation, he had filed charge-sheet. There is no dispute with regard to case property i.e. seized clothes of the injured.
11. The Prosecution evidence was closed. There is no incriminating evidence against the accused persons, accordingly, examination of the accused persons u/s. 351 BNS was dispensed with.
12. This court has heard the final arguments from both the sides and has meticulously perused the judicial record.
13. In the present case, both the accused persons namely Tota Ram and Ved Prakash have been charged for the offences u/s. 109(1)/126(2)/3(5)/238 BNS on the allegations that FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 7 of 12 they in furtherance of their common intention had wrongfully restrained the complainant the victim Tilak Raj and hit him with broken glass bottle and thereby they attempted to cause murder of the victim and also that accused Ved Prakash caused the evidence to disappear.
14. The complainant/victim Tilak Raj is the natural and main eye witness of the incident. He was examined as PW-1 during the trial. He deposed that after consuming liquor, when he reached at his house, quarrel took place between him and accused persons at his house. After the quarrel between him and the accused persons, he did not know what happened thereafter. He further stated that his sister had called police. Police had taken him to Hindu Rao hospital where he was treated. He further stated that he did not know how he got injury on his body as he was not in his sense due to consumption of liquor. He further stated that he did not know what was recorded in the said statement. PW-1 was cross-examined by the ld. Addl. PP for the State but of no benefit to the prosecution. It is apparent that the testimony of PW-1 is unreliable and is completely insufficient to base the conviction of the accused persons.
15. The other important eye witness of the incident as per the prosecution story is Ms. Seema who is the sister of the complainant. She was examined as PW-3 during the trial. She completely retracted from her earlier statement. She deposed that on the day of incident when she came to her FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 8 of 12 house, she noticed her brother Tilak Raj received injuries. Complainant Tilak Raj asked her to call police and she called police and police came to the spot and they took her brother to hospital. PW-3 was duly cross-examined by the Addl. PP for State as she was resiling from her earlier statement made before the police. She also denied almost all the suggestion put forth by the ld. Addl. PP for State for incriminating the accused persons.
16. PW-1 and PW-3 were the prime witnesses of the prosecution on whose testimony the case has rested upon. Both of them had not supported the case of the prosecution. There is no other eye witness to prove the culpability of the accused persons in the present case.
17. No weapon of offence has been recovered from the possession of the accused persons to connect them with the commission of the offence.
18. The complicity of the accused persons could have been proved by the ocular evidence or circumstantial evidence. The ocular witnesses turned hostile and the circumstantial evidence is insufficient to infer the guilt of accused persons.
19. It is well settled law that to convict the accused on circumstantial evidence, there must be complete chain of events pointing towards the guilt of the accused and no other. It was held by the Apex court in Hanumant FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 9 of 12 Govind Nargundkar and Anr. V. State of Madhya Pradesh, [AIR 1952 SC 343], that:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
20. In case of Sharad Birdhi Chand Sharda Vs. State of Maharashtra, [AIR 1984 SC 1622], the Hon'ble Apex Court had laid down the test which are pre- requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The circumstances concerned "must or should" and not "may be" established;
3. 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;
4. The circumstances should be of conclusive nature and tendency;
5. They should exclude every possible hypothesis except the one to be proved; and FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 10 of 12
6. There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
21. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused persons have a right to maintain silence in the trial. Every accused person is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused persons beyond reasonable doubt. The accused persons cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof.
22. The prosecution has failed to prove the case against the accused persons by leading convincing or cogent evidence and thus, it has failed to discharge the burden placed upon it and therefore, the accused persons are entitled to be exonerated.
23. Resultantly, the accused persons namely Tota Ram and Ved Prakash are hereby acquitted of the charges u/s. 109(1)/126(2)/3(5)/238 BNS.
24. Bail Bonds u/s. 437-A Cr. P.C. have not been furnished.
FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 11 of 12
25. File be consigned to Record Room after completing necessary formalities.
Pronounced in the open court on 25th January, 2025 (SUSHIL ANUJ TYAGI) Additional Sessions Judge-04, Central, Delhi, THC, Delhi.
Digitally
signed by
SUSHIL SUSHIL ANUJ
TYAGI
ANUJ Date:
TYAGI 2025.01.25
15:31:30
+0530
FIR No. 432/2024 State Vs. Tota Ram and Anr. PS Sarai Rohilla, U/s. 109(1)/126(2)/238/3(5) BNS 12 of 12