Delhi District Court
State vs . : 1) Sunny @ Dhabba on 17 July, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:722/17
FIR No. : 457/17
U/s : 302/34 IPC & 25/27 Arms Act
P.S. : S.B.Dairy
State Vs. : 1) Sunny @ Dhabba
S/o Sh. Satte
R/o C-11/27, Shahbad Dairy,
Delhi.
Offence complained of : 302/34 IPC & 25/27 Arms Act
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of committal : 28.11.2017
Date of Judgment : 17.07.2018
JUDGMENT
1. On 08.08.2017 Rajender Singh was present at his home. At about 11:45 am Shahrukh friend of his brother Jitender came to his house and told that Rahul, Pradhuman and Sunny are quarreling with his brother Jitender near toilets of C-Block Shahbad Dairy. Rajender Singh along with Shahrukh reached there. He found his brother Jitender sitting there and was also sad. He inquired from Jitender about the quarrel. Jitender told him that Rahul, Pradhuman and Sunny were saying to him that he has to told about his habit of State Vs. Sunny @ Dhabba. SC NO: 722/2017 1 taking smack to their parents on which he told them that he had not said anything. Rahul, Pradhuman and Sunny were angry due to that reason and quarreling with him. They had gone after extending threats to kill him. He was talking with his brother. In the meanwhile at about 12:00 noon Rahul, Pradhuman and Sunny came there and threatened Jitender saying, "saale tu jayada shikayati banta hai, aaj ter kaam tamaam kar denge". Sunny and Pradhuman caught hold of Jitender. He tried to get his brother released from them but Rahul pushed him due to which he fell down. Sunny and Pradhuman said, "Rahul maar, saley ka kaam tamaam kar de. On this Rahul took out a knife from the pocket of his nikkar and opened it by pressing button and gave a blow in the abdomen of Jitender. He (Rajender) raised alarm. Rahul, Pradhuman and Sunny fled away with knife. He took his brother to doctor BSA hospital Rohini where doctor examined his brother and declared him dead. On the complaint of Rajender FIR was registered. All the accused were arrested. Accused Rahul and Pradhuman were found to be Juvenile. Charge sheet against accused Sunny was filed. Ld. MM after complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court. Accused Sunny was charged for the offence State Vs. Sunny @ Dhabba. SC NO: 722/2017 2 punishable u/s 302 r/w 34 IPC. Accused pleaded not guilty and claimed trial. Thereafter, case was fixed for prosecution evidence.
2. Ct. Naveen was examined as PW-1. He proved the scaled site plan of the spot as Ex.PW1/A which he prepared at the instance of SI Sandeep. The testimony of the witness has gone unchallenged and uncontroverted.
3. Shahrukh was examined as PW-2. He deposed that Rahul, Pardeep and Jitender @ Mona were quarreling with each other on the day of Raksha Bandhan at about 10 - 11 am near the public toilets situated at C-Block, main road Shahbad dairy. He along with Sunny @ Dhabba intervened and separated them. Thereafter, they went to their respective houses. He does not know what happened thereafter. He deposed that Rahul and Pardeep were quarreling with Jitender @ Mona. The witness was cross-examined by Ld. APP as he resiled from his earlier statement.
4. During cross-examination by Ld.APP he stated that the he does not know why Rahul and Pardeep were quarreling with Jitender @ Mona. He denied the suggestion that Jitender told him that he would teach a lesson to them by informing their family members that Rahul @ Mauzi and Sunny @ Dhabba and Pardeep are taking drugs or that Jitender informed their family members since then Rahul, State Vs. Sunny @ Dhabba. SC NO: 722/2017 3 Sunny and Pardeep were having grudge against Jitender or that on 08.08.2017 Rahul @ Mauji, Sunny @ Dhabba and Pardeep @ Pradhuman came to Jitender or that they said to Jitender "Tu jayada Shikayati banta hai and asked him why he had informed their family members and started quarreling with Jitender, saying "iss saley ka kaam tamaam karna padega, tabhi yeh manega". He denied the suggestion that he went to the house of Jitender where he informed his brother Rajender who accompanied him to the place and when Rajender was inquiring from Jitender at the same time Rahul, Sunny @ Dhabba and Pradhuman threatened Jitender by saying "Iss saley ka kaam tamam kar denge, yeh jayada shikayati banta hai" they started quarreling with Jitender. He denied the suggestion that the accused persons pushed Rajender on one side. Caught hold of Jitender and said "Rahul maar saley ko, aaj iska kaam tamam kar de" or that Rahul pulled out a knife and stabbed in the abdomen of Jitender. He also denied the suggestion that Rajender raised noise on which all the accused persons fled away with knife. He denied the suggestion that Jitender was removed in a car by his brother Rajender to BSA hospital where he was declared dead. He was confronted with his statement Ex.PW2/A. He denied the suggestion that he had witnessed Rahul stabbing Jitender with knife on the instigation of other State Vs. Sunny @ Dhabba. SC NO: 722/2017 4 two accused Sunny and Pardeep. The testimony of witness has gone unchallenged and uncontroverted.
5. Ct. Arjun was examined as PW-3. He deposed that on 08.08.2017 he was posted at CPCR PHQ and was working on channel No.136. On that day at about 12:02:30 hrs call was received from mobile phone No.9310169993. The caller informed "C-block Masjid ke paas Shahbad Dairy yahan par ek ladke ko 2 - 3 baar chaku marey hain, injured hai." He recorded this information and dispatched it at 12:03:58 hrs. he proved the computer generated copy of PCR form as Ex.PW3/A.
6. During cross-examination by the Ld. Counsel for accused he stated that the caller did not tell the names of the assailants.
7. SI George Abraham was examined as PW-4. He stated that on 13.10.2017 on the request of IO he took the print out of PCR form already Ex.PW3/A and prepared the certificate u/s 65B Evidence Act Ex.PW4/A. The testimony of the witness has gone unchallenged and uncontroverted.
8. Dr. Vijay Dhankar was examined as PW-5. He deposed that on 09.08.2017 he conducted post mortem examination on the body of Jitender S/o Sh. Raj Kumar. After post mortem he opined that death was due to hemorrhagic shock consequent to penetrating injury to the abdomen. All State Vs. Sunny @ Dhabba. SC NO: 722/2017 5 injuries were ante mortem and fresh before death. Injury No.1 was caused by one side sharp edged weapon and is sufficient to cause death in ordinary course of nature. After post mortem blood sample in gauze, clothes and sample seal of department were handed over to the police in sealed condition. Probable time since death was about one day. He proved the post mortem report as Ex.PW5/A.
9. He also deposed that on 20.02.2017 he received application along with sealed parcel for opinion. He opened the parcel and took out the knife photograph of which is Ex.PW5/B. After examining the knife he opined that the injury mentioned in the post mortem report could be caused by weapon examined. He proved the subsequent opinion as Ex.PW5/C. Knife was also shown to him produced in sealed cover by the MHC(M) and he identified the knife as Ex.PW5/Article-1.
10. During cross-examination by the defence counsel he stated that the time gap of about 1 or 1 ½ hour between injury and death of deceased is consistent with the type and severity of injury found on the body of the deceased.
11. Dr. Deepti Bhalla was examined as PW-6. She deposed that on 08.08.2017 Jitender was brought to casualty with alleged history of physical assault by sharp weapon (knife) about 45 minutes back as per the attendant. She State Vs. Sunny @ Dhabba. SC NO: 722/2017 6 examined the patient. Her junior doctor Pratibha examined the patient under her supervision. The injured was referred to SR Surgery and SR Antesthesia for expert opinion and further management. She proved the MLC as Ex.PW6/A. The testimony of the witness has gone unchallenged and uncontroverted.
12. HC Ashwani was examined as PW-7. He deposed that on 08.08.2017 on the direction of Duty officer he reached BSA hospital Rohini. SI Sandeep met him there and handed over rukka to him for registration of FIR at 2:20 pm prepared on the statement of Rajender. He left for the police station and presented the rukka to the duty officer. Duty officer registered the FIR and handed over the copy of FIR and original rukka to him for handing over the same to SI Sandeep. He reached plot No.C-16/43 near Naya Shauchalya, Shahbad Dairy and handed over the copy of FIR and original rukka to SI Sandeep for further investigation.
13. On 09.08.2017 he along with SI Sandeep went to the mortuary of BSA hospital where they met HC Hakikat. SI Sandeep prepared the inquest documents and moved application for post mortem. The dead body was identified by Subhash and Rajender. After the post mortem the dead body was handed over to the relatives. From the hospital doctor handed over a pullanda containing clothes of deceased, State Vs. Sunny @ Dhabba. SC NO: 722/2017 7 envelope containing blood gauze and sample seal which were sealed by the IO. On the same day at 4 pm he along with SI Sandeep left in search of accused persons and reached Shahbad Dairy bus stand where Shahrukh also joined them. Rahul @ Mauji who was lateron found as Juvenile was apprehended at about 4:15 pm. On 10.08.2017 he along with SI Sandeep left in search of other accused persons. Secret informer informed about Pardeep @ Pradhyuman. Shahrukh also joined them and they apprehended Pardeep @ Pradhyuman who was also found to be juvenile.
14. During cross-examination he denied the suggestion that he did not join the investigation or that no rukka was handed over to him by SI Sandeep or that he did not accompany IO to the morutary of BSA hospital. He denied the suggestion that no exhibits were handed over to IO from the hospital.
15. Ct. Hahikat Rai was examined as PW-8. He deposed that on 08.08.2017 on receipt of DD No.37B by ASI Gurcharan regarding stabbing of a boy 2-3 times, he along with ASI Gurcharan reached near New Toilet Block, C-Block, Shahbad Dairy. There they came to know that injured had already been removed to BSA hospital. SI Sandeep also reached there. He along with SI Sandeep went to BSA State Vs. Sunny @ Dhabba. SC NO: 722/2017 8 hospital. ASI Gurcharan was left at the spot. In the hospital they collected the MLC of Jitender who was unfit for statement. In the meanwhile doctor declared Jitender dead. Rajender who was an eye witness met them in the hospital. SI Sandeep recorded his statement. HC Ashwani reached the hospital. SI Sandeep prepared the rukka and handed over the same to HC Ashwani at 2:20 pm for registration of FIR. HC Ashwani left for the police station. From the hospital a card board box containing clothes of deceased duly sealed along with sample seal were handed over to SI Sandeep who seized the same vide seizure memo Ex.PW8/A. SI Sandeep moved application for preservation of the dead body and body was shifted to the mortuary of the hospital.
16. On 09.08.2017 he along with SI Sandeep and HC Ashwani went to the mortuary of BSA hospital. SI Sandeep prepared the inquest papers and moved application for post mortem. Dead body was identified by the relatives Subhash and Rajender. After post mortem the dead body was handed over to the relatives. From the hospital the pullanda containing the clothes, the blood sample and sample seal were handed over to the IO who seized the same vide memo Ex.PW8/B.
17. On 13.08.2017 he along with SI Puneet went in search of accused and reached at Murga Market Shahbad State Vs. Sunny @ Dhabba. SC NO: 722/2017 9 Dairy at about 11:45 pm one secret informer met them and informed that Sunny @ Dhabba is sitting at main bus stop Shahbad Dairy. IO requested public persons to join the raiding team but none agreed. On the pointing out of the secret informer accused was apprehended and was arrested vide arrest memo Ex.PW8/C. His personal search was conducted vide memo Ex.PW8/D. Accused made the disclosure statement Ex.PW8/E. Accused pointed out the place of occurrence vide memo Ex.PW8/F. The witness has correctly identified the accused.
18. During cross-examination by the defence he stated that they reached the spot at about 12:15 or 12:20 pm. The spot is about 2 or 2 ½ km from the police station. They reached the spot on his motorcycle. About 20 to 30 public persons were present on the spot. He does not know the names and addresses of those public persons. In his presence ASI Gurcharan and SI Sandeep did not record the statement of those public persons. They reached the BSA hospital at about 1:15 pm on his motorcycle. He does not remember by which vehicle SI Sandeep reached the hospital. He denied the suggestion that he did not join the investigation or that he did not accompany IO to the BSA hospital. He denied the suggestion that no exhibits were handed over to the IO in the hospital. He does not know at State Vs. Sunny @ Dhabba. SC NO: 722/2017 10 what time IO received the MLC of the deceased. He denied the suggestion that accused was not arrested from the place, time and manner as deposed by him. No notice was given to the public persons who refused to join the investigation. He denied the suggestion that accused was lifted from his house and falsely implicated in this case.
19. Subhash was examined as PW-9. He deposed that on 09.08.2017 he along with his relative went to BSA hospital and identified the dead body of Jitender vide memo Ex.PW9/A. He received the dead body after post mortem vide memo Ex.PW9/B. The testimony of the witness has gone unchallenged and uncontroverted.
20. Rajender was examined as PW-10. He deposed that on 08.08.2017 at about 11:45 am he along with his children was present at his house. His neighbour Shahrukh came and informed that Mauji @ Rahul, Pradeep @ Pradhuman and Sunny @ Dhabba are quarreling with his brother Jitender at C-Block, near Shauchalya. He reached there and met Jitender who informed that accused persons were quarreling with him. His brother informed him that he disclosed to the family members of the accused persons that they are taking drugs (smack peetey hain). His brother also informed him that the above named persons had threatened him. At about 12:00 noon the three accused reached there. He was State Vs. Sunny @ Dhabba. SC NO: 722/2017 11 present along with his brother Jitender. Rahul @ Mauji pushed him and he fell down on the ground. Praduman and Sunny @ Dhabba said yeh Jayada shikayti ban reha hai, aaj iska kaam tamam kar dete hain". Mauji @ Rahul took out a knife from the dub of his nikkar and stabbed in the middle under the chest of Jitender. He started screaming. All the three accused persons ran away with knife. He along with other persons removed Jitender in a car to BSA hospital where doctor examined his brother and decalred him dead. Police met him in the hospital and recorded his statement Ex.PW10/A. He identified accused Sunny @ Dhabba. On next day he along with his brother Subhash went to BSA hospital where he identified the dead body vide and received the dead body vide memo Ex.PW9/B. On 08.08.2017 he has also pointed out the place of occurrence to the police and the police prepared the site plan.
21. During cross-examination he stated that he has studied upto 6th class and is working as a labourer. He is a daily wager. His wife is working as a maid servant. He does not consume smack but only smoke biri. He admitted that only Shahrukh informed him about the quarrel. He denied the suggestion that Shahrukh did not tell him anything. Initially only he reached the place of incident and lateron his family members also reached there but by that time his brother had State Vs. Sunny @ Dhabba. SC NO: 722/2017 12 already been stabbed by the accused persons who had already fled away. There are number of houses near the scene of incident. Those houses are situated at a distance of about 20 steps from the toilet. He does not remember the names of public persons who gathered at the scene of crime after hearing his screams. He tried to save his brother he was pushed aside. He sustained minor injuries due to fall. He did not get himself medically examined as the injuries were minor. He denied the suggestion that no such incident took place. Jitender was removed to hospital in the car of cousin brother of Mauji having registration No. 4447. He does not remember the complete registration number and also the name of the owner of the car. His clothes and clothes of Subhash were not seized by the police. Firstly they took his brother to a local doctor who adviced them to take him to some big hospital. It took them 15 minutes to take Jitender to the shop of the local doctor. The cousin brother of accused Mauji drove the car in which injured was taken to the hospital. He denied the suggestion that no such incident took place in his presence. It took them more than half an hour to reach the hospital from their locality. They reached the hospital at about 1:00 or 1:15 pm. Police reached there at about 1:30 or 1:45 pm. He does not know if police recorded statement of his brother Subhash or not.
State Vs. Sunny @ Dhabba. SC NO: 722/2017 13
22. HC Pardeep was examined as PW-11. He was working as MHC(M) and proved the entries in register No.19 as Ex.PW11/A and Ex.PW11/B. He proved the entries in register No.21 as Ex.PW11/C, Ex.PW11/D. He proved the acknowledgment of the FSL as Ex.PW11/E. He stated that till the case property remained in his possession nobody tampered with the same.
23. During cross-examination for the accused he denied the suggestion that entries are fabricated and manipulated and case property was tampered with.
24. SI Sandeep was examined as PW-12. He stated that on 08.08.2017 after receiving DD No.37B he reached near new toilet block near Masjid C-Block Shahbad Dairy. ASI Gurcharan and Ct. Hakikat met him there. He came to know that injured had been removed to the hospital. He along with Ct. Hakikat went to the hospital and ASI Gurcharan Singh remained at the spot. He collected the MLC of Jitender. Jitender was unfit for statement. In the meanwhile doctor declared Jitender dead. Rajender who was the brother of the deceased and eye witness met him there. He recorded his statement Ex.PW10/A. He made endorsement Ex.PW12/B. Prepared the rukka and handed over to HC Ashwani at 2:20 pm who had also reached the police station in the meanwhile. HC Ashwani went to police station for registration State Vs. Sunny @ Dhabba. SC NO: 722/2017 14 of FIR. From the hospital a box duly sealed was handed over to him which he seized vide Ex.PW8/A. The dead body was removed to mortuary of BSA hospital through Ct. Hakikat. He reached the spot along with the complainant and handed over the sealed parcel and documents to Inspector Ashok Kumar who conducted the further investigation. HC Ashwani came back on the spot and handed over the original rukka and copy of FIR to the IO. Crime team inspected the scene of crime and photographer took the photographs. IO prepared site plan at the instance of complainant. Thereafter they went in search of accused persons but no clue was found. IO recorded the statement of Shahrukh at his house. On 09.08.2017 he along with Ashwani went to the mortuary where Ct. Hakikat met them. He prepared inquest papers i.e. form 25.35 Ex.PW12/C. The dead body was identified by Subhash and Rajender vide their statements Ex.PW9/A and Ex.PW10/B. Application Ex.PW12/D was moved for post mortem. The post mortem was conducted and after the post mortem dead body was handed over to the relatives. The hospital handed over the exhibits along with the sample seal after the post mortem which were seized vide memo Ex.PW8/B. He deposed about the arrest of Rahul @ Mauji but as he was found to be Juvenile and therefore I am not discussing the same.
State Vs. Sunny @ Dhabba. SC NO: 722/2017 15
25. He further deposed that on 20.09.2017 he collected one pullanda duly sealed and moved application for subsequent opinion. The case property i.e. weapon of offence was sent to the hospital and deposited there. During the period exhibits remained in his possession nobody tampered with the same.
26. On 25.02.2017 he visited the spot along with Ct. Naveen. Ct. Naveen took the measurements and prepared rough notes at his instance for preparing scaled site plan.
27. During cross-examination he stated that he does not remember the DD number vide which he left the police station on 08.08.2017. He reached the spot in his personal car at about 12:30 noon. Public persons were present on the spot. He does not know the names and addresses of public persons. There were residential houses at a distance of about 100 meters from the spot.
28. Ct. Ramphal was examined as PW-13. He was working as DD writer and proved the copy of DD No.37B as Ex.P12/A. The testimony of the witness has gone unchallenged and uncontroverted.
29. Ct. Vikas was examined as PW-14. On 13.10.2017 he collected four sealed parcels duly sealed along with sample seal from the MHC(M) vide RC No.385/21/17 for depositing the same in FSL. He deposited the case property along with State Vs. Sunny @ Dhabba. SC NO: 722/2017 16 the sample seal in the FSL and obtained the photocopy of the RC and the acknowledgment. He came back to the police station and handed over the acknowledgment and copy of RC to the MHC(M). During the period exhibits remained in his possession nobody tampered with the same. The testimony of the witness has gone unchallenged and uncontroverted.
30. ASI Gurcharan Singh was examined as PW-15. He deposed that on 08.08.2017 on receipt of DD No.37B Ex.PW12/A he along with Ct. Hakikat reached near New Toilet block, C-block, Shahbad Dairy where he came to know that injured had been removed to BSA hospital. SI Sandeep also reached there and he remained on the spot. After some time SI Sandeep returned to the spot and directed him to go in search of the accused. He tried to find out the accused persons but no clue was found.
31. During cross-examination he stated that he reached the spot at about 12:15 pm, 8-10 public persons were present on the spot. The person who made the call at 100 number was not there. He made inquiries from those 8 to 10 public persons but they had not witnessed the incident. He did not record the statement of those 8 - 10 public persons. He does not remember the time when he left the spot. He does not remember at what time SHO reached the spot. In State Vs. Sunny @ Dhabba. SC NO: 722/2017 17 his presence statement of public persons was not recorded.
32. SI Puneet Grewal was examined as PW-16. He deposed that on 13.08.2017 he along with Ct. Hakikat went in search of accused persons and reached at Murga Market Shahbad Dairy. At about 11:45 am one secret informer met them and informed that Sunny @ Dhabba is sitting at main bus stand Shahbad Dairy. Public persons were requested to join the raiding team but none agreed. On the pointing out of secret informer accused was apprehended and was arrested vide memo Ex.PW8/C. His personal search was conducted vide memo Ex.PW8/D. Accused made the disclosure statement Ex.PW8/E. Accused pointed out the place of occurrence vide memo Ex.PW8/F. He has correctly identified the accused.
33. During cross-examination he stated that he made the departure entry at about 11:15 am before conducting the raid but he does not remember the DD Number. He denied the suggestion that he did not conduct any raid or that accused was not apprehended from the place as deposed by him. Other persons were present at the bus stand when the accused was apprehended. The secret informer pointed out the accused from a distance of 10 steps. Accused did not try to run away. The witness stated that accused was sitting with his head down. They were in uniform at that time. He does State Vs. Sunny @ Dhabba. SC NO: 722/2017 18 not know if the other accused who is a juvenile was also apprehended from the same bus stand. There is no CCTV camera installed in the DO room in the PS: Shahbad Dairy or outside PS: Shahbad Dairy. He denied the suggestion that accused surrendered in the police station on 12.08.2017.
34. Sh. Naval Kumar was examined as PW-17. He stated that he does the work of wall painting. In the last year in the summer season he was present in street No.1 Shahbad Dairy. He heard some noise coming from the toilet block. He reached there. Public persons were already present there. He came to know that one person, whose name was Mona, has been stabbed by some body. That person was taken to nearby doctor who told that he is already dead. He made the call at 100 number from his mobile phone. He does not remember the number which he was using at that time.
35. During cross-examination he stated that he made the call between 2 to 3 pm. Brother of the deceased was also present there. Some friends of the deceased were also present there. No other brother of deceased was present except Ravinder. The friends of injured took him to the doctor but he does not know their names. He stated that he can identify and recognized all the brothers of deceased by face. No other brother of deceased was present on the spot except Ravinder.
State Vs. Sunny @ Dhabba. SC NO: 722/2017 19
36. Thereafter, the prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.PC wherein he denied the entire evidence. He wished to lead evidence in defence and thereafter, the case was fixed for defence evidence.
37. Shankar was examined as DW-1. He deposed that on 08.08.2017 he was present at his house i.e. Gurukul Singh Pura Rohtak Haryana. Accused Sunny reached his house at 3:00/3:30 pm and remained with him till the morning of 12.08.2017.
38. During cross-examination by Ld. APP he stated that on 08.08.2017 he reached his house at about 3:00/3:30 pm. Accused was at his house at that time and taking water. He denied the suggestion that accused did not visit his house on 08.08.2017 at about 3:00 /3:30 pm or did not stay with him till 12.08.2017.
39. Ram Chander was examined as DW-2. He deposed that on 08.08.2017 he called the accused who work as conductor on his vehicle No. HR 38 7287 at about 10:30 am. Accused reached to him within 10-15 minutes. They took the vehicle to Bahadurgarh to unload the same. Accused was receiving repeated calls and told that he had some quarrel. At about 2:30 or 2:45 pm accused left after taking Rs.500/-. During cross-examination by Ld. APP he stated that he is State Vs. Sunny @ Dhabba. SC NO: 722/2017 20 using mobile phone number 7053703643. he does not know the mobile phone number of the accused and the same is also not stored in the contact list of his mobile phone. He called the accused by sending some boy. It was Tuesday on 08.08.2017 when accused travelled with him lastly. He does not remember on what day and time accused travelled with him prior to 08.08.2017. He does not know the name of the company whose material he was going to unload at Bahadurgarh on 08.08.2017. He also does not remember the name of the party to whom he handed over the article. He denied the suggestion that accused was not with him on 08.08.2017 or that he is deposing falsely.
40. Thereafter the defence evidence was closed and the case was fixed for final arguments.
41. I have heard the Ld. APP for the State, Ld. Defence counsel for the accused and perused the record.
42. Ld. APP submitted that in this case on 08.08.17 Jitender was assaulted by Sunny, the present accused along with his two co-accused both juvenile at about 12 PM near the toilet of C Block, Shahbad Dairy. The incident was witnessed by one Shahruk, friend of Jitender examined as PW-2 but he did not support the prosecution case. The other witness is Rajender/PW-10, he is brother of deceased. He has fully supported and corroborated the prosecution case. State Vs. Sunny @ Dhabba. SC NO: 722/2017 21 The quarrel took place as Jitender had informed the family members of accused persons that they are taking drugs. The accused persons wanted to teach a lesson to Jitender as he disclosed their secret to their family members. On 08.08.17 while Rajender was at home, Shahrukh/PW-2 came to his house and informed that the accused along with his companion both juvenile is quarreling with his brother Jitender near toilet of C Block. He reached there. His brother told him that accused persons are taking drugs and they have also threatened him (juvenile). At about 12 noon accused along with his companion reached there. His co- accused juvenile 'P' pushed PW-10 due to which he fell down on the ground. The present accused and juvenile P said "yeh jyada shikayati ban raha hai iska kaam tamam kar tetain hain" on which juvenile 'R' pulled out a knife from his nicker and stabbed under the chest of Jitender in the middle portion. PW-10 raised alarm. The accused persons fled away. PW-10 removed his brother in a car to BSA hospital where he was declared dead. Ld. APP submitted that PW-10 have stood through the test of cross examination. His name is also mentioned in the MLC Ex.PW-6/A as the persons who brought injured to the hospital which corroborates the testimony of PW-10. The MLC is proved as PW-6/A that also shows that there was only one incised wound approximately State Vs. Sunny @ Dhabba. SC NO: 722/2017 22 3 cm x 1 cm in size over the epigastric region of abdomen with active bleeding from the wound. The patient was referred to SR Surgery where he was treated but could not be saved. Post mortem report has been proved as Ex.PW- 5/A. According to the opinion of the doctor examined as PW- 5 the death is due to hemorrhagic shock consequent to penetrating injury to the abdomen. All the injuries were ante mortem and fresh before death. Injury no.1 was caused by one side sharp edged weapon and sufficient to cause death in the ordinary course of nature. Ld. PP submitted that the identity of the accused is established by PW-10. The other two accused are facing trial before the Juvenile Justice Board. The presence of the accused on the spot is proved and the evidence also shows that it was on his exhortation and the exhortation of the other accused Juvenile 'P' that Juvenile 'R' stabbed in the abdomen of deceased and caused his death. The fact that they were acting in furtherance of common intention is also evident from the fact that they went away extending threats and they all returned at 12 noon and attacked Jitender. Ld. APP submitted that the testimony of PW-10 also establishes the motive behind the commission of crime. The accused persons were agrieved as the decreased informed their parents that they are taking smack and that is why they attacked him and caused his State Vs. Sunny @ Dhabba. SC NO: 722/2017 23 death. Ld.PP submitted that the onus which was on the prosecution has fully been discharged. Ld. APP submitted that the prosecution has successfully proved the guilt of the accused and prayed that he be held guilty and convicted for the offence punishable under Sec.302 read with Sec.34 IPC.
43. Ld. Defence counsel submitted that in this case there were only one eye witness PW-2, who has not supported the prosecution case at all. In fact he has demolished the prosecution story and also the presence of the accused on the spot. PW-10 was not present on the spot and had been introduced later on only to create evidence against the accused. Ld. Counsel submitted that according to PW-2, Juvenile 'R' and Juvenile 'P' were quarreling with Jitender on the day of Raksha Bandhan at about 10/12 PM near the public toilet, C Block, Main road, Shahbad Dairy. He confirmed that the date was 08.08.17. Shahrukh/PW-2 also stated that he and Sunny @ Dhaba i.e. the accused facing trial intervened and separated them and thereafter they went to their respective houses. Ld. Counsel submitted that this witness does not say that the present accused was also quarreling with Jitender along with juvenile 'R' and 'P'. He also stated that thereafter he and accused went to their respective houses. Ld. Counsel submitted that in fact accused thereafter had gone along with DW-2 Ram Chander State Vs. Sunny @ Dhabba. SC NO: 722/2017 24 on his vehicle no.HR 38 7287 to Bahadurgarh to unload the vehicle and he left the company of DW-2 only at about 2.30 or 2.45 PM after taking Rs.500/- from him. This testimony of DW-2 clearly shows that during the period when this incident took place, accused was not in Delhi. After returning from there, accused reached the house of Shanker DW-1 and remained with him from 3.30 PM on 08.08.17 till the morning of 12.08.17. Ld. Counsel submitted that this testimony clearly shows and establishes that accused was not there.
44. Ld. counsel further submitted that in this case PW-17 Nawal Kumar made a call at 100 number from his mobile phone about the incident. Though, he had not witnessed the incident but he stated that brother of deceased namely Ravinder was present there on the spot. Some friends of deceased were also there. No other brother of Ravinder was present on the spot. The friends of injured took him to the doctor but he does not know their names. Some court question were also put to the witness to confirm whether he know all the brothers of the deceased and he stated that they were five brothers including the deceased, eldest one was Ravinder. He does not know the name of the next brother. The other brother is Subhash, Mona has died and youngest one is Ajay. He also stated that he can identify and recognized all the brothers of the deceased by face. Ld. State Vs. Sunny @ Dhabba. SC NO: 722/2017 25 Counsel submitted that from this testmony of PW-17 it is clear that Rajender was not there on the spot but it was Ravinder, who was there. Ravinder had not been examined. This testimony of PW-2 and PW-17 itself creates doubt about the presence of PW-10 on the spot.
45. Ld. Defence counsel further submitted that so far as PW-10 is concerned, he stated that it was Shahrukh/PW-2, who informed him and thereafter he reached the spot but Shahrukh did not support this testimony of PW-10. He did not say that he went to the house of Rainder and brought him to the spot. ld. Counsel submitted that keeping in view all these facts the testimony of PW-10 is not reliable even otherwise he did not say that he tried to apprehend any of the accused or made any effort to save his brother. He alleges that he was pushed, due to which he fell down on the ground but there is no injury on his body sustained due to fall on the ground. His MLC is also not on record. Ld. Counsel submitted that these facts clearly show that he is deposing falsely and is not reliable witness. Ld. Counsel submitted that the onus which was on the prosecution has not been discharged. There is no recovery from the possession of the accused or at the instance of the accused. It is prayed that he be acquitted as the prosecution has failed to bring whom the guilt of the accused and discharge the onus. State Vs. Sunny @ Dhabba. SC NO: 722/2017 26
46. Ld. counsel in support of his arguments relied upon the judgment cited as Baby and Others Vs. Circle Inspector of Police, AIR 2016 SC 3671.
47. After hearing the arguments and going through the record, I found that in the present case the prosecution case is resting on the testimony of two eye witnesses PW- 2/Shahrukh and PW-10/Rajender. Police got the information about the incident when PW-17 made a call at 100 number. DD no.37B Ex.PW-12/A was recorded. PW-17 stated that some friends of deceased and his brother Ravinder were present on the spot at that time when he made a call. He specifically stated that no other brother of the deceased except Ravinder was present there. It is important to note that the eye witness examined by the prosecution is not Ravinder but is Rajinder, brother of deceased.
48. The eye witness Shahrukh stated that the accused Juvenile 'P' and Juvenile 'R' were quarreling with deceased wherein he i.e. PW-2 and the accused intervened and separated them. Thereafter PW-2 and the accused went to their respective houses. PW-2 was cross examined by the prosecution as he resiled from his earlier statement given to the police. He did not support the prosecution case that he went to the house of deceased and called his brother from there. He did not depose that in his presence the accused State Vs. Sunny @ Dhabba. SC NO: 722/2017 27 along with his two co-accused Juvenile 'P' and Juvenile 'R' caused injury on the person of deceased. From the testimony of PW-2 and PW-17, the presence of PW-10 on the spot itself becomes doubtful.
49. The two defence witnesses has been examined in this case. Testimony of DW-2 shows that the accused was at Bahadurgarh at the relevant time as he was helping DW-2 in unloading the vehicle. Even the prosecution witness PW- 2/Shahrukh stated that after he (PW-2) and accused intervened and separated the deceased and Juvenile 'P' and Juvenile 'R', they left for their respective houses. According to PW-2 it was around 10 or 10.30 PM. At the same time according to DW-2 i.e. around 10.30 AM accused came to him and they went to Bahadurgarh. From Bahadurgarh accused left at about 2.30 PM. From this testimony of PW-2 and DW-2, the presence of accused on the spot also becomes doubtful.
50. It is for the prosecution to prove the guilt of the accused beyond doubt and mere suspicion is not sufficient to establish the guilt. The presence of PW-10 on the spot itself is doubtful and the other eye witness has not supported the prosecution case. Even the presence of the accused on the spot is under cloud and in fact DW-2 deposed that accused was in Bahadurgarh. Keeping in view the above discussions, State Vs. Sunny @ Dhabba. SC NO: 722/2017 28 in my opinion the prosecution has failed to establish the guilt of the accused beyond doubt. The accused is therefore acquitted. He be released on furnishing personal bond of Rs.20,000/- with one surety in the like amount under Sec.437 A Cr.PC for a period of six months. File be consigned to Record Room. Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2018.07.17 BANSAL 11:59:36 +0530 Announced in the open court today i.e. on 17.07.2018 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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