Delhi District Court
Fir No. 117/12 ,State vs Sonu Diwakar And Others 1/13 on 10 May, 2014
1 Sessions Case No.06/2014
IN THE COURT OF MS. HEMANI MALHOTRA, ADDITIONAL SESSIONS
JUDGE-05 (CENTRAL), TIS HAZARI COURTS, DELHI
Sessions Case No. 06/2014
FIR No.117/12
PS Pahar Ganj
Under Section 307/324/34 IPC
State
Versus
1. Sonu Diwakar @ Chikna
S/o Sh. Kishan Pal,
R/o H.No.124, Teli Badi
Sadar Bazar
New Delhi Accused
2. Anil Kumar @ Chhutwa @ Ajay
S/o Sh. Shri Babu
R/o Vegabond, New Delhi Railway
Station, Pahar Ganj, Delhi. Accused
3. Dev Giri @ Ganja
S/o Sh. Rakesh Giri,
R/o Nai Basti, Fateh Ganj,
East Distt. Barrelly, UP Accused
Date of institution of case : 25.09.2012
Date of reservation of judgment/conclusion
of final arguments : 08.05.2014
Date of pronouncement of judgment : 10.05.2014
JUDGMENT
1. Accused Sonu Diwakar @ Chikna, , Anil Kumar @ Chhutwa @ Ajay and Devi Giri @ Ganja were committed to the Court of Sessions by Metropolitan Magistrate (Central), Tis Hazari Courts, Delhi to stand trial under Sections 307/324 IPC read with Section 34 IPC for alleged attempt FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 1/13 2 Sessions Case No.06/2014 to commit the murder of the complainant Sh. Pramod and his uncle Ved Nath by stabbing them and causing them injuries with knife in furtherance of their common intention along with Raja @ Rinku (facing trial in Juvenile Justice Board) on 25.06.2012 at about 11.00 PM near Gate No. 1 of New Delhi Railway Station, C.F.Road, Pahar Ganj, Delhi.
FACTS OF THE CASE
2. Briefly stated, the facts of prosecution case as gathered from the charge sheet u/s 173 Cr.P.C and the first information statement of the complainant are that on receipt of DD No. 47, SI Tarsem Kumar along with Const. Shaitan Singh reached at Mujia Chowk, Gate No. 1, near New Delhi Railway Station where they came to know that the injured had been taken to Hospital. Accused Sonu Diwakar who was given beatings by the public, was handed over to him. The said accused Sonu Diwakar was sent along with Const. Shaitan Singh to Lady Harding Hospital for medical examination. Thereafter, after leaving HC Daya Nand at the spot. SI Tarsem Kumar went to the Hospital and obtained the MLCs of two injured persons namely Pramod Kumar and Vaid Nath. Injured Vaid Nath was found unfit for statement. However, SI Tarsem Kumar recorded the statement of injured Pramod Kumar wherein he has stated that he along with his uncle Vaid Nath is running a shop (thaiya) of Pan-Biri near Gate No. 1 of New Delhi Railway Station. On 25.06.2012 at about 11.00 PM, when they were present at the said shop, Accused Sonu Diwakar came to them and demanded two packets of Gutka. Upon demanding money, accused Sonu Diwakar started abusing them and left the shop without giving a single penny. After about 10-15 minutes, accused Sonu Diwakar along with his three associates, also the accused persons known as Ganja, Chhutwa & Raja came there. The said accused persons were FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 2/13 3 Sessions Case No.06/2014 known to him prior to the incident as they all were living at the patri/pavement. Accused Sonu Diwakar along with other co-accused started quarreling with him and his uncle Vaid Nath. During the scuffle, he was caught hold by accused Chhutwa and Ganja who told him that since they charge excess for the gutkas, they shall kill them. Thereafter accused Sonu Diwakar stabbed the left and right thigh of the complainant with a knife. The accused Raja and Ganja caught hold of the hands of his uncle Vaid Nath and accused Sonu Diwakar stabbed with knife upon the left side of his stomach with knife. Thereafter, after inflicting injuries, they all escaped from there.
3. The further case of the prosecution is that SI Tarsem Kumar after recording the statement of Pramod (PW-4) prepared rukka and sent the same through Const. Shaitan Singh to the police station for registration of the present FIR. After registration of the FIR, the investigation of the case was assigned to SI Raj Kumar who along with Const. Shaitan Singh reached at entry gate of New Delhi Railway Station,Paharganj side where he met with ASI Tarsem Kumar along with HC Dayanand and complainant Pramod . He thereafter , prepared site plan (Ex.PW9/A) and went to Lady Harding Hospital and found the other injured Vaid Nath unfit for statement. Accused Sonu Diwakar who was also sent for his medical examination to the hospital was interrogated by SI Raj Kumar , who after his discharge from the hospital was arrested. SI Raj Kumar after recording the disclosure statement Ex.PW 3/ C of accused Sonu Diwakar took him to the place of occurrence where accused Sonu Diwakar got recovered blood stained knife from the heap of garbage in the car parking of entry gate No. 1 of New Delhi Railway Station. After recovery of the knife, sketch of the recovered knife was prepared. The abovesaid knife was then converted into a pulanda, sealed with the seal of RKS and seized vide seizure memo FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 3/13 4 Sessions Case No.06/2014 Ex. PW 3/ E. The knife was also deposited in the malkhana. As per the MLC of PW5 Ved Nath (Victim), the nature of injuries sustained by him opined as dangerous and of injuries sustained by PW4 Pramod (PW4) are simple in nature.
4. Thereafter, on 28.06.2012 on the basis of a secret information, accused Anil Kumar @ Chhutwa was arrested near the platform no. 1, Nizamuddin side New Delhi Railway Station who made his disclosure statement (Ex. PW 9/D). On 10.07.2012, accused Devgiri was also apprehended at the instance of beat Const. Yogender from near Sai Hotel. Accused Devgiri was interrogated and his disclosure statement Ex. PW 9/G was recorded. SI Raj Kumar obtained the blood stained clothes of Pramod and Vaid Nath after which, the same were converted into a parcel, sealed with the seal of RKS and seized vide memo Ex. PW 8/A. On 21.08.2012, the same were sent to FSL, Rohini through const. Karan Singh. After investigation, all the three accused namely Sonu Diwakar @ Chikna , Anil Kumar @ Chhutwa @ Ajay and Devgiri @ Ganja were charge sheeted u/s 307/324 IPC read with Section 34 IPC and were committed to the Court of Sessions as mentioned above.
CHARGE
5. Charges under Section 307 read with Section 34 IPC were framed vide order dated 05.11.2012 against accused persons namely Sonu Diwakar @ Chikna , Anil Kumar @ Chhutwa @ Ajay and Devgiri @ Ganja to which all the accused pleaded not guilty and claimed trial.
FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 4/13 5 Sessions Case No.06/2014 EVIDENCE
6. In support of its case, prosecution has examined 9 witnesses. HC Bharat Bhushan (Duty Officer) was examined as PW-1 , HC Daya Nand was examined as PW-2, Const. Shaitan Singh was examined as PW-3, Sh. Pramod (complainant) was examined as PW4, injured Vaid Nath was examined as PW 5, SI Tarsem Kumar (First IO) was examined as PW 6, Dr. Rahul Jaiswal was examined as PW7, Const. Rambir was examined as PW 8, SI Raj Kumar (second IO) was examined as PW 9, Const. Narender was examined as PW 10, Cons. Karan Singh was examined as PW 11, Const. Joginder Singh was examined as PW 12 and Const. Santvir was examined as PW 13.
7. I have heard Sh. Yatinder Kumar , Learned Amicus Curaie for accused Anil Kumar for the accused , Learned Counsel Sh.............and have perused the entire record with utmost care. However, no assistance was provided by the State to argue the matter on behalf of State.
MATERIAL WITNESSES ( VICTIMS)
8. The victim Pramod who was examined as PW-4, in his examination-in-
chief deposed that victim Vaid Nath is his uncle and he along with his uncle is running a temporary shop at the entry gate No.1 of New Delhi Railway Station. At about 11.00 PM on 25.06.2012, when he was present at his shop, accused Raja (Juvenile) came to him and asked for 2-3 packets of gutkas and offered only Rs.5/- for the same. On this, hot words were exchanged between them, whereafter accused Raja (Juvenile) went away with the gutka packets without making any payment. He further deposed that after 10-15 minutes, accused Raja (Juvenile) came back FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 5/13 6 Sessions Case No.06/2014 with the three accused namely Sonu Diwakar @ Chikna , Devigiri @ Ganja and Anil Kumar @Chhutwa. The witness correctly identified accused Devgiri @ Ganja, Anil Kumar @ Chhutwa and Sonu Diwakar, who were present in the court. He then testified that he knew the accused persons even prior to the incident as they used to roam at the railway station.
9. He further stated that at that time, his uncle was also present. All the accused started arguing with him and dared him for asking money for gutka and started grappling with him. His uncle Vaid Nath intervened to save him, but accused Devgiri and Anil Kumar @ Chhutwa caught hold of him and then accused Devgiri @ Ganja stabbed him twice on both the thighs with the knife from behind. After being stabbed, he sat on the ground crying in pain. When his uncle Vaid Nath intervened, accused Devgiri @ Ganja and accused Raja (Juvenile) caught hold of his uncle and stabbed him with a knife in the right side of his abdomen. His uncle fell unconscious and he took his uncle to the hospital in a TSR. He further deposed that his first information statement was thereafter recorded by the police which is Ex. PW 4/A.
10. He also testified that at the time of the incident, he was wearing half pant which he was asked by the police to wash. Therefore, he washed his half pant in hospital and handed over the same to the police. The baniyan and the shirt of his uncle Vaid Nath which were stained with blood were also handed over to the police. The witness PW 4 proved the clothes of his uncle as Ex.P1 and his half pant as Ex.P2 which were produced by the MHC(M) in a sealed parcel with the seal of RK, FSL Delhi.
11. In his cross examination by the learned counsel for accused Sonu Diwakar, it was deposed by him that he did not know as to how accused FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 6/13 7 Sessions Case No.06/2014 Sonu Diwakar sustained injuries. He categorically deposed that the incident continued for about 15-20 minutes and that there were other temporary shops (thaiyas) close to the temporary shop of the victims and that other persons were present at those thaiyas but none intervened. He also deposed that they both (victims) accompanied by one Kamlesh left for the hospital immediately after the incident and that the police came to the hospital about one /one and half hours late. He denied the suggestion that accused Sonu Diwakar did not come to their temporary shop on the date of the incident.
12. PW-4 was also cross examined by the learned counsel for accused Anil Kumar@Chhutwa and Devgiri@Ganja wherein he denied the suggestion that his uncle Vaid Nath had sustained injuries due to an accident. He categorically deposed that firstly Raja had come to their shop, who left extending threats to him. The accused persons subsequently came to the shop with the knife which they were hiding. He further denied the suggestion that they had quarreled with some unknown persons and that they were falsely implicating the accused persons.
13. The careful scrutiny of the evidence of PW 4 reveals that as per his deposition, it was accused Raja (Juvenile) who had come to him and asked for 2-3 packets of gutkas and offered Rs.5/- only and not accused Sonu Diwakar as stated by him in his first information statement (Ex.PW 4/A). The hot words were exchanged between him and the accused Raja, whereafter accused Raja went away with gutka packets without making any payment. Subsequently, he deposed that although, all the accused persons were present and grappling with him at the time of the incident, it was accused Devigiri @ Ganja and accused Anil Kumar @ Chhutwa who had got caught hold of him and it was accused Devigiri @ Ganja who had FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 7/13 8 Sessions Case No.06/2014 given two stab injuries with a knife. He specifically stated in his examination-in-chief that the statement made by him in Ex. PW4/ A regarding accused Sonu Diwakar stabbing him with a knife was incorrect.
14. The bare perusal of the first information statement Ex. PW4/A of Pramod (PW-4) shows that as per FIR Ex.PW1/A, it was accused Sonu Diwakar and not accused Raja who had come to the shop of PW-4 and PW 5Sh. Vaid Nath and asked for two packets of gutka. When PW-4 asked for the payment of gutka packets, accused Sonu Diwakar started abusing him and in a fit of anger left the spot without making any payment. In his first information statement (PW 4/A), he had also stated that it was accused Sonu Diwakar, who along with his associates had come to his shop after 10-15 minutes of the previous incident and entered into a scuffle with his uncle Vaid Nath. During the said scuffle, accused Anil Kumar @ Chhutwa and accused Devgiri@Ganja held the hands of PW-4 threatening to kill him. When he was being held by the aforesaid accused persons, accused Sonu Diwakar stabbed his left and the right thigh with a knife.
15. Again in the testimony of PW-4 in the court, he stated that when his uncle intervened, it was accused Devgiri @ Ganja and accused Raja (Juvenile) who had caught hold of his uncle and given him stab injury in the right side of his abdomen. On comparison of his deposition with the first information statement (Ex.PW4/A), apparent contradiction is revealed. In Ex.PW4/A, it was stated by him that it was accused Sonu Diwakar, who had given the knife blow to his uncle on his back side of the abdomen, while his uncle was being held by accused Raja (Juvenile) and accused Devgiri @Ganja.
16. Significantly, similar kind of contradictions are revealed from the testimony of PW-5 Victim, Sh. Vaid Nath who is the uncle of the complainant PW4 FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 8/13 9 Sessions Case No.06/2014 and was running the temporary shop at entry gate No.1, New Delhi Railway Station along with PW4. In his examination-in-chief, he gave the date of incident as 26.06.2012 and not 25.06.2012 as stated by the complainant PW4. Assuming for the sake of argument, the date of the incident was wrongly stated by PW5, he too deposed that initially it was accused Raja who had come to their shop on the fateful night and asked for 2-3 packets of gutkas. Since his offer of Rs.5/- for the price of gutkas was not acceptable, hot words were exchanged between him and PW-4. Thereafter, accused Raja went away threatening to kill them. After about 10-15 minutes, accused Raja came back with his other associates i.e. co- accused Sonu Diwkar, Anil Kumar @ Chhutwa and Devgiri @ Ganja and started quarreling with Pramod (PW-4). During the quarrel, they stabbed PW-4 on his hips with a knife. He categorically deposed that since he was taking his meals, he did not see as to who had stabbed Pramod (PW-4). On hearing the cries of injured Pramod (PW-4), he rushed towards him but accused Devgiri @Ganja and Anil Kumar @Chhutwa caught hold of him and accused Anil Kumar @ Chhutwa stabbed him at his waist.
17. In his cross examination by learned counsel for accused Sonu Diwakar, he testified that Kamlesh who is a handicap and is running a thaiya at the same place was also present at the time of the incident along with other thaiya walas . When he was again asked about the presence of other thaiya walas, he contradicted his previous statement and stated that the other thaiya walas were not present at the time of the incident. He admitted in his cross examination that CCTV cameras were installed at gate no. 1 and that the incident took about 10-15 minutes. He also deposed that he was not aware as to how accused Sonu Diwakar received injuries. He denied the suggestion that after 10-15 minutes , accused Raja did not FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 9/13 10 Sessions Case No.06/2014 come back with accused Sonu Diwakar and that they had started quarreling with Pramod (PW4).
18. In the cross examination conducted by the learned counsel for accused Anil Kumar and accused Devgiri, it was very specifically testified that it was accused Raja (Juvenile) who had firstly come to the thaiya and that Pramod (PW4) had given gutka to accused Raja (Juvenile). In his further cross examination, he stated that he was given one blow at the left side of his stomach, another on the left arm and left eye brow.
19. The testimony of PW-5 as observed is completely contrary to the statement made by the complainant Pramod (PW-4) in Ex. PW 4/ A and the statement of PW-5 recorded under Section 161 Cr.P.C. In his statement under Section 161 Cr.P.C, PW 5 had categorically stated that that it was accused Sonu Diwakar who had approached PW 4 and PW 5 at their temporary shop and had demanded two packets of gutka. When he was asked for the payment for the gutka packets, he started abusing and left in a fit of anger. He then returned after 10-15 minutes along with his three accomplices namely Chhutwa, Raja and Ganja and started arguing with them. Thereafter, they entered into a scuffle with Pramod (PW4). Raja, Chhutwa and Ganja held Pramod (PW4) whereas accused Sonu took out a knife from his pocket and stabbed Pramod (PW4) on his hip whereafter all the four accused leaped at him. Accused Raja, Chhutwa and Ganja held PW 5 by his arms while accused Sonu stabbed him on his left side of his stomach with the knife. As per the testimony of PW-5, he did not see as to who had stabbed his nephew Pramod (PW4) although he claimed to be the eye witness to the stabbing of his nephew Pramod (PW4). From his deposition, it is also revealed that according to him, it was accused Raja (Juvenile) who had stabbed him and not accused FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 10/13 11 Sessions Case No.06/2014 Sonu. The bare perusal of his cross examination also indicates that he made a completely contradictory statement regarding the injuries received by him during the incident. He specifically stated that he received injuries on the left side of his stomach, left arm and left eye brow. The MLC of the victim PW5 completely contradicts the testimony of PW-5. The MLC of PW 5 which was proved by Dr. Rahul Jaiswal of Lady Hardinge Medical College as Ex.PW 7/ A belies the statement of PW 5. In the MLC Ex. PW 7/ A, PW5 was found with a stab wound approximately 2x1 cms on left loin region only. There was no injury on his left arm and left eye brow.
20. Although, it is evident from the testimonies of PW-4 and Pw-5 that the incident of stabbing did take place, the aforementioned material contradictions in the testimony of PW-4 Pramod (complainant) and PW 5 SH. Vaid Nath (victim) creates a reasonable doubt as to the identity of the accused person who had stabbed PW4 and PW5.
21. It is also apparent from the record that despite PW 4and PW 5 testifying in complete contradictions to their statements, they were not cross examined by the learned APP for the state who was present during the examination in chief of PW4 and PW5 conducted before the Learned Predecessor of the Court.
22. Hence, since PW4 and PW5 themselves contradicted their own versions, testimony of these witnesses, even if material , can not be relied upon mechanically. In a case reported as AIR 1974 SC 21, Hon'ble Supreme Court on appreciation of evidence observed that :
"although court should disengage truth from falsehood but if they are so inextricably mixed up down to the core that disengagement is impossible, court can reject evidence in toto."
FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 11/13 12 Sessions Case No.06/2014
23. In view of the inconsistent stands taken by PW4 and PW5, I am of the opinion that it is unsafe to rely upon their testimonies. The versions of PW4 and PW 5 are absolutely inconsistent with their previous statements recorded under Section 161 Cr.P.C and hence testimonies of remaining PWs are not discussed herewith for the sake of brevity.
24. Further, as per the case of the prosecution the knife which was used in the present case was alleged to have been recovered at the instance of accused Sonu but the knife was not sent to FSL to establish the fact that the blood stains on the knife were that of the victims i.e. PW4 and PW5. Since no independent evidence was led to connect the weapon of offence with the commission of offence in the present case, recovery of knife at the instance of accused does not help the case of the prosecution.
25. In a case titled as Prabhu Vs. State of UP decided by the Hon'ble Supreme Court on 3.5.1962 wherein it has been observed that :
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A.', these words are inadmissible they do not relate to the discovery of the knife in the house of the informant." (emphasis supplied by me) FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 12/13 13 Sessions Case No.06/2014 CONCLUSION
26. In the light of the aforesaid discussion, it can be safely held that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Hence, the accused persons Sonu Diwakar @ Chikna, , Anil Kumar @ Chhutwa @ Ajay and Devi Giri @ Ganja are acquitted of the charge U/s 307/34 IPC. File be consigned to record room Dictated and Announced in open (Hemani Malhotra) Court on 10.05.2014 Addl. Sessions Judge-05 (Central) Tis Hazari Courts Delhi FIR NO. 117/12 ,State Versus Sonu Diwakar and Others 13/13