Delhi District Court
State vs . 1. Rajinder @ Inder S/O Palu Ram on 28 May, 2007
1
IN THE COURT OF MS ASHA MENON: ASJ: DELHI.
SC NO.55/05
STATE VS. 1. Rajinder @ Inder S/o Palu Ram
R/o H.No. 16, Geeta Colony,
Sonipat, Haryana.
2. Naresh Kumar S/o Pritam Dass
R/o H.No. 3350, Arya Pura,
Subzi Mandi, Delhi.
3. Rajesh Kumar S/o Suresh Kumar
R/o H.No. 429/6, Gali Balmiki Basti,
Lal Darwaja, Sonipat, Haryana.
4. Joginder Kumar @ Ravinder S/o
Babu Ram R/o H.No. 513/5, Gali
Balmiki Basti, KamcharGali,
Sonipat, Haryana.
Case arising out of:
FIR No. 261/2004
P.S. Lahori Gate, Delhi.
U/s 307/120B/34 IPC
JUDGMENT:
BRIEF FACTS:
1. On 6.8.04 the police of PS Lahori Gate was alerted by an information received from the PCR and recorded in the PS as DD No. 28A to the effect that at 20.45 hours Ct. Satpal of the PCR had informed regarding apprehension of a boy near 1894, Kucha Chelan , Khari Bawli, Delhi who had allegedly thrown acid on another boy. The local police commenced its investigation and in the course of the investigation the statement of the complainant Anil Bubana was recorded according to which he had seen two boys throwing acid on his nephew Tony of whom one had been 2 apprehended at the spot and who had called out to the second boy addressing him by the name of Rajesh. The person who was apprehended at the spot was Chaman who has been sent up before the Juvenile Justice Board for trial.
2. During the course of investigations the local police apprehended Rajinder @ Inder, Naresh Kumar, Rajesh Kumar and Joginder Kumar @ Ravinder and submitted the charge sheet against them for conspiracy and attempt to murder.
3. After the case was committed for trail, charge U/S 120B and Section 307 read with Section 34 IPC was framed against all the four accused who pleaded not guilty.
4. The prosecution thereafter examined 12 witnesses in order to substantiate the charge against the accused. After the statements of the accused were recorded U/S 313 Cr.P.C the accused Rajesh examined Sanjay Kumar as DW-1. The other accused did not examine any witness in defence.
EVIDENCE:
5. The prosecution has examined PW-1 Parmanand, PW-2 Deepak Kumar Bubana who is the injured, PW-6 Mange Ram and PW-9 Sh. Anil Kumar Bubana who is the eye witness to the incident. PW-10 is Dr. Mohd. Nawab who had examined the injured, while PW-8 is the record clerk from Sanjeevan Hospital who brought MLC of the injured on record the remaining witnesses PW-3 ASI Ram Kishan, PW-4 HC Sukhvir Singh, PW-5 HC Karamvir Singh, PW-7 HC Ghayasuddin, PW-11 Ct. Ashok Kumar had all participated at various stages and in various capacities, in the investigations carried out by PW-12 SI Naresh Kumar.
6. Reverting to the detailed statements of the witness, 3 PW-1 is Pramanand. He has deposed that he used to sell sweets, toffees, bread etc and had been doing so for the last about 40-42 years. He stated that he was standing in front of his shop between 8 & 9 pm when he saw a crowd running raising a call of "Pakro Pakro". He deposed that he looked in the direction of the alarm and saw the person being chased by the crowd run past his shop. The witness stated that he was unable to catch that person. He further stated that he did not know if that person was caught subsequently. He stated that later on he learnt that someone had poured acid on Tony who was the resident of the same Gali. He stated that he was unable to identify or describe the person who was being chased by the crowd or infact how many persons were being chased by the crowd. The witness stated that he had seen Tony who had come to his tea shop and he had seen that Tony had been burnt because of the acid. He admitted that the police had made inquiries from him and he had informed the police that acid had been thrown and the person who had thrown the acid had escaped.
7. This witness was subjected to cross examination by the Ld Prosecutor. During this cross examination the witness admitted that he knew the accused Naresh Kumar as he was previously selling chips in the area. He denied having told the police that two boys had crossed his shop and had run. He denied that in the mean time Mange Ram had come to the shop. He denied that he had told the police that the boy had been caught and brought to the spot. He denied that he had reached in front of house No. 1914, Kucha Chelan to find Deepak @ Tony with acid on his body or that he had seen the uncle of Tony by name Anil Bubana removing the clothes of the injured. He however admitted 4 that he has seen acid and broken glass pieces at the spot but claimed he reached later. He denied having told the police that the boy who had been caught at the spot had been beaten by the public.
8. The witness claimed that he had shut his shop and had left and did not know what proceedings had been conducted at the spot. HE denied that the boy caught by the public was Chaman. He denied that he had told the police that Chaman had disclosed that he and his associates had made a plan to throw acid at Deepak and that he alongwith the co-accused Rajesh had done so. The witness claimed that he has closed his shop around 9 pm whereas the incident had taken place between 8-8.15 pm and 8.30 pm. He admitted as correct that he had remained at his shop for half an hour and that the place of incident was about 150 yards from his shop. He admitted knowing accused Naresh as he was selling chips etc. from a shop at Farash Khana Chowk. He stated that on hearing alarm some 25-50 persons gathered and crowd remained till the arrival of the police. He claimed that he had not witnessed the seizure of glasses by the police. He denied knowing the other three accused. He claimed that he had gone to the spot the next morning on his way to the temple and he had noticed discoloration on account of the acid. He denied that he had been won over by the accused. He was unsure whether the date of incident was 6.8.04. During his cross examination the witness denied the suggestion that he did not know the accused Naresh.
9. PW-2 is Deepak Kumar Boobna. He is the injured.
He has deposed that on 6.8.04 he has shut his shop and was proceeding to his house in Kucha Chelan and was about 5 200-250 feet away from his house when somebody poured acid over his right shoulder and right arm. He stated that he did not know how many persons were present at that time. He deposed that he did not know who had poured acid over him. He was unable to identify the accused as the person who had poured acid on him.
10. The Ld. Prosecutor cross examined this witness. During his cross examination, he stated that he was not aware whether his uncle (chacha) Anil was coming from the opposite direction when the acid had been poured over him. He denied knowing accused Chaman. He denied the suggestion that Chaman had poured acid over him. He admitted knowing accused Naresh by the name Neetu. He stated he did not know accused Rajesh. He stated that after the acid had been poured over him he had raised alarm till he had lost consciousness. He was unaware of the crowd gathered at the spot. He also claimed that he did not call anyone or hear someone else call by the name Rajesh.
11. The witness however admitted that accused Naresh @ Neetu had a shop next to him and that both were doing business in confectioneries. He admitted that he used to sell his products through hawkers. He however denied that he used to obtain supplies from the accused Naresh for onward sale to customers. He denied that he had managed to extend his business at the cost of the clientele of accused Naresh and that therefore the accused Naresh was harboring enemical feelings towards him because of his success. Witness further deposed that he had seen accused Rajender at the shop of accused Naresh. He stated that he had met Rajinder on occasion even prior to the incident. He denied that the accused Rajinder and Naresh used to caution him 6 not to attract their customers and threatened him with serious consequences if he did not heed them. He denied that he had seen Chaman and accused Rajesh at the spot. He denied that he had been won over by the accused.
12. PW-6 is Mange Ram. He has deposed that it was around 8 or 9 pm but he did not recall the date and time when somebody had hit him from behind. He claimed that as he was brushing his teeth and was having tooth powder in his hand, he was unable to catch hold of the person who had bumped into him. He was also unable to state who had caught hold of whom since at that time his back was turned towards them. The Ld Prosecutor cross examined this witness. During cross examination the witness denied having heard alarm of "Pakro Pakro". He was unable to state whether two boys were running and stated that only one had bumped into him. He claimed that though his statement had been recorded by the police he did not know what was recorded by the police. He denied the suggestion that Chaman had been apprehended by Parmanand @ Leelu or that he and Parmanand had produced Chaman before the police. He further denied that accused Chaman had told them that accused Rajesh had managed to escape or had disclosed that he alongwith Rajesh had poured acid on Deepak @ Tony. He was unable to tell whether the accused Rajesh present in Court was running after pouring the acid and that he had escaped from the spot. He denied that he has been won over by the accused.
13. PW-9 is Sh. Anil Kumar Bubna, the complainant. He has deposed that in the year 2004 in the month of August he had just got out from his house for some purpose and the time was between 8.15 pm and 8.30 pm. His 7 nephew Deepak Kumar was coming from the market towards his house and at that time somebody poured acid on his back and he recoiled on account of the burns. The witness stated that he had seen two persons running from the spot and one of the two was the accused Rajesh. The witness stated that the second one was the person by name Chaman who had been brought from Sonepat. The witness again stated that Chaman was apprehended in the gali itself though he was protesting his innocence. The witness further stated that he was getting confused between names and stated that Mange Ram had caught hold of one person in the gali and that person was not present in the court during his deposition. The witness further stated that since there was no light at the spot he could not state as to who had poured acid and he himself was not able to see the face of the assailants as they were running away from him. The witness stated that out of the two persons Chaman and Rajesh one had poured acid on his nephew but he was unable to identify the person on account of darkness at the spot. The witness stated that he had taken his nephew to Sanjeevan Hospital. He deposed about various investigations by SI Naresh carried out at the spot including seizure of the glass pieces and the seizure of the clothes. He also deposed having gone to Tihar Jail for identification of the accused in the presence of the Judge.
14. The witness was cross examined by the Ld APP. During his cross examination he admitted that he had signed the complaint Ex.PW-9/B and that the police had written his statement. He admitted that out of the two boys the one had said something to the other but he was unable to state what words those had been. He was unable to state 8 despite cross examination whether the accused Rajesh had poured acid over his nephew. He admitted that only one person had been apprehended at the spot and that person was not present in the court. He further stated that due to lapse of time he could not remember whether he had identified the accused Rajesh at Tihar Jail. He explained that in the MLC his brother's name was mentioned as Ram Avtar Bubna father of the injured Deepak @ Tony had also arrived at the hospital by the time that the treatment had commenced. He admitted that it was on account of the lapse of time that he was unable to state with certainty that it was the accused Rajesh who had poured the acid. The witness went on to explain that the acid was highly corrosive as even the pavement was corroded on account of the acid. He also explained that the acid had been thrown with some force as some acid had fallen upon house No. 1884 at a distance of 8 to 10 meters from house number 1914 where the acid had been poured.
15. The witness was cross examined only by the Ld Counsel for the accused Rajesh. During his cross examination the witness deposed that he was working as a commission agent at Chandni Chowk and the house of the injured was on the second floor while his own was on the first floor of the same building. He deposed that near the house no. 1913-14 at the time of incident while the injured was about 25 paces behind him. He deposed that at that time it was dark. He admitted as correct that Mange Ram and Parmanand had been present at the spot and explained that they had over powered the accused. He further deposed that the police had came to his house and he had met them at the hospital also. He denied the suggestion that accused 9 Rajesh was not present at the spot or was not involved in the incident. He stated that he had identified that person at Tihar at PS and in the Court even though he was not familiar with the names. He denied that he was deposing falsely.
16. Apart from these material witnesses are the formal witnesses. PW03 is ASI Ram Kishan. He deposed that he had received DD No. 28A pertaining to the throwing of acid on a person upon which he alongwith Ct. Karamvir went infront of H.No. 1914, Kucha Chelan, Khari Bawli and found that ASI Mahender Singh and HC Karamvir were also present at the spot. He deposed that they produced one boy namely Chaman before them and that Chaman had been given beatings by the public. He deposed that SHO PS Lahori Gate had also reached at the spot and on the direction of the SHO he handed over DD to ASI Mahender Singh for further procedure. The witness stated he had come to know that the injured had been eferred to Sanjeevan Nursing Home, Darya Ganj and that while ASI Mahender Singh and HC Karamvir went to Sanjeevan Nursing home, he had himself remained at the spot. He stated that he would be able to identify Chaman. This witness was not cross examined by the defence.
17. PW-4 is HC Sukhvir Singh. He deposed that on 22.9.04 he was posted at PS Lahori Gate and on that day the accused Rajesh had surrendered before the SI Naresh. The witness deposed that the SI Naresh had interrogated the accused Rajesh and had arrested him. He deposed that accused had made disclosure statement Ex.PW-4/A and had pointed out the place of occurrence vide Ex.PW-4/B. The accused was arrested vide memo Ex.PW-4/C and his personal search taken vide memo Ex.PW-4/D. The witness 10 stated that the accused had pointed out the place of occurrence in muffled face. He deposed that the accused was medically examined and produced before the Court for remand. The witness deposed that accused Joginder reported at the PS on 28.9.04 and since he was on anticipatory bail the accused was formally arrested vide memo Ex.PW-4/E. His disclosure statement Ex.PW-4/F was also recorded and accused was advised to appear in the court with muffled face. PW-4 was not cross examined by the defence.
18. PW-5 was HC Karamvir Singh. He deposed that on 6.8.04 he was posted at PS Lahori Gate and was on patrolling duty at Lahori Gate Chowk with ASI Mahender Singh. He deposed that at about 8.45 pm they received a wireless message that in Kucha Chelan acid had been thrown on a person. He deposed that thereafter they reached in front of H.No. 1914 Kucha Chelan where he saw a number of persons and they had produced one person namely Chaman. At the spot some broken pieces of glass and acid was also lying. He deposed in the meantime SHO and SI Naresh Kumar reached at the spot. Thereafter he alongwith SI Naresh went to Sanjivni Nursing Home where he collected the MLC of the injured Deepak where the eye witness met them and the Investigating Officer recorded his statement and he PW-5 took the tehrir to the PS. The witness stated that after getting the case registered he had returned to the spot and had handed over the copy of FIR and original tehrir to the Investigating Officer . The witness deposed that the accused was interrogated and his disclosure statement recorded. He deposed that Investigating Officer picked up broken pieces of glasses and 11 acid soaked soil vide memo Ex.PW-5/A, and had inspected the spot and prepared the site plan on the pointing out of the complainant. This witness was also not cross examined by the defence.
19. PW-7 is HC Gyasuddin. He deposed that on 6.8.04 he was posted at PS Lahori Gate and was working as Duty Officer in the PS from 4 pm to 12 night and at about 8.45 pm he had received information from the operator PS Lahori Gate which he had recorded as DD No. 28A Ex.PW-7/A. He deposed that on this ASI Ram Kishan and Ct. Karamvir were sent to the spot. The witness further deposed that at about 11.35 pm HC Karamvir produced before him one tehrir sent by ASI Mahender Singha and on the basis of the tehrir he had recorded the formal FIR No. 261/04 PS Lahori Gate and brought the carbon copy of FIR on the record as Ex.PW-7/B. PW-7 was not cross examined by the defence.
20. PW-8 is Murgan, the record clerk from Sanjeevan Hospital. He deposed that on 6.8.04 Dr. Prem Aggarwal had medically examined Deepak Bubna vide MC Ex.PW-8/A. He identified the signatures of Dr. Prem Aggarwal as also the signatures of Dr. Nawab and Dr. Vishwanath Dudani and Dr. Johri who have all left the service of the Sanjeevan Hospital. The witness was not cross examined.
21. PW-10 is Dr. Mohd. Nawab who deposed that on 8.8.04 while working as doctor at Sanjeevan Medical Center/Sanjeevan Hospital he had declared the patient Deepak Bubna fit for statement vide MLC Ex.PW-8/A. He also identified the signatures of Doctor Johri and his hand writing recording the opinion on the nature of injuries as acid burn injury and that the injuries were homicidal acid burns. The witness was not cross examined.
1222. PW-11 is Ct. Ashok Kumar. He deposed that on 7.8.04 he was posted at PS Lahori Gate and on that day SI Naresh Kumar had directed him to take Rajender and Chaman from the lockup in his custody to be taken to Katra, Barian, Ekta Market for pointing out the shop of relative of the accused. The witness state that accused took them to the shop of his brother in law which was found locked. Thereafter they reached Katra Barian Chowk and there the accused Rajender pointed out his brother in law Naresh and SI Naresh apprehended the accused Naresh. The witness stated that thereafter he brought accused Chaman and Rajender to Aruna Asaf Ali Hospital for their medical examination and had produced accused Rajender and accused Chaman before the Court and both were sent to JC. The witness stated that accused Naresh had also came to the Court and from the Court the accused had taken the police to the shop. The witness stated that there the disclosure statement of the accused was recorded and he was arrested vide memo Ex.PW-10/A where his statement was recorded.
23. PW-12 is SI Naresh Kumar the Investigating Officer . He deposed that on 6.8.04 he was posted at PS Lahori Gate as SI and on that day he was informed by the Duty Officer at 11.40 pm about the investigation of the FIR No. 261/04. He had gone to the spot in front of H.No. 1914 Kucha Chelan where ASI Ram Kishan had met him. He deposed that 4-5 public persons were also present and ASI Ram Kishan had caught hold of one boy. He deposed that ASI Ram Kishan told him that he had received one PCR call and the same had been handed over to ASI Mahender Singh. Meanwhile ASI Mahender alongwith complainant Anil Bubna reached there and ASI Mahender Singh informed him about the facts of the 13 case. The witness stated that he had taken the photographs of the spot by his own camera. He deposed that the case was registered as recorded by ASI Mahender Singh. He deposed that HC Karamvir had reached the spot and handed over to him the copy of FIR and the rukka. He deposed that he had marked broken glasses which were found on the earth and acid spots. He had seized acid and broken glasses and sealed in pulanda before seizing them. He deposed that the injured had informed him that since he was feeling the sensation of burn because of the acid he had removed his clothes and had washed himself with water and had changed his clothes. The witness deposed that he had seized those clothes vide seizure memo Ex.PW-9/A.
24. The witness stated that he had prepared site plan at the instance of the complainant which is Ex.PW-12/A. He deposed that the accused Chaman was facing trial before the Juvenile Justice Board though he was arrested in this case and his personal search was also taken thereafter. The witness stated that the accused Chaman had made disclosure statement pursuant to which they had reached Church Mission Road Parking. There no vehicle as disclosed by the accused Chaman was found. There they met one person by name Vijender who stated that he could point out the addresses of Joginder, Rajender and Rajesh. The witness stated that thereafter he alongwith the accused Chaman, Vijender, SI Ritesh, HC Sukhbir and HC Karamvir had gone to Sonepat and had contacted the local police on reaching Sonepat. The witness stated that with the help of local police they had reached the house of Joginder @ Ravinder, Rajesh, Om Prakash and Rajender @ Inder. Only accused Rajender @ Inder was apprehended near his house 14 while the other accused was not available in their respective houses. The witness stated that the accused Rajender @ Inder was arrested on the pointing out of accused Chaman vide memo Ex.PW-12/B and his personal search was conducted vide memo Ex.PW-12/C. The witness stated that on interrogation the accused disclosure statement was recorded as Ex.PW-12/D.
25. The witness deposed that pursuant to the disclosure statement made by the accused Rajender he had led them to the shop from where they had taken the acid but that shop was closed at that time and thereafter they had returned to Delhi. The case property was deposited in the Malkhana and both the accused Chaman and Rajender were taken to the Court. The witness stated that on their way back from Sonepat they had also raided the house of accused Naresh, brother in law of accused Rajender @ Inder but was not found present at his house at that time. He stated that on the way to the Court the accused Naresh who was having a shop at Katra Bariyan, met them at the Chowk and accused Naresh was also taken with them. The witness deposed that while Chaman and Rajender were sent to JC accused Naresh was brought to the PS where he was interrogated and arrested vide memo Ex.PW-10/A. The witness stated that the accused Naresh also made disclosure statement Ex.PW-12/F and thereafter Section 120B of IPC was added to the case as accused Naresh had conspired to commit the offence. The witness deposed that the accused Naresh was produced before the Court on the next day and he was sent to JC. The witness deposed that during investigation he had recorded the statement of witnesses U/S 161 Cr.P.C. He deposed that he went to Sanjeevan Nursing Home, Darya Ganj and on 15 being informed by the doctor that the injured was fit for statement had recorded his statement U/S 161 Cr.P.C. The witness deposed that on 18.8.04 he had received the discharge slip of the injured.
26. He deposed that on 25.9.04 the accused Rajesh had presented himself at the PS where he was arrested vide arrest memo Ex.PW-4/C and his personal search was conducted vide memo Ex.PW-4/D. The witness deposed that the disclosure statement of accused Rajesh had been recorded by him as Ex.PW-4.A and then accused Rajesh was produced before the court in a muffled face and he had also moved an application for his TIP. He deposed that the TIP was fixed for 1.10.04 but the accused had refused to join the same. He deposed that he had obtained the copy of TIP proceedings from the Hon'ble Court. Witness deposed that on 25.9.04 the accused Joginder who had obtained anticipatory bail from the Sessions Court and he was formally arrested in the present case vide arrest memo Ex.PW-4/E and his disclosure statement on interrogation was recorded by him which is Ex.PW-4/F. He deposed that he had given notice to the accused Joginder to appear before the Court in a muffled face but he had appeared without muffled face alongwith his counsel and refused for the TIP. He deposed that he had obtained the copy of TIP proceedings. He deposed that the sealed exhibits were sent to FSL Rohini and the result had been filed which is Ex.PW- 12/G. He deposed that he had filed a separate challan in the Juvenile Court for the accused Chaman and after concluding the investigation against all the other accused persons, he had prepared the charge sheet against them and had filed it before the Court for judicial verdict. The witness 16 identified the case property.
27. This witness was cross examined by Sh. J.P. Suhag counsel for accused Rajender and Naresh. In his cross examination he deposed that he had recorded the statement of the injured. He denied the suggestion that the injured had not named the accused Rajender and Naresh. He deposed that he had gone to the house of accused Rajender in the morning of 7th. He deposed that they had reached the house of accused Naresh between 8.30 and 10 am on 7.8.04. He denied the suggestion that he had been deposing falsely being the Investigating Officer of the case. He also denied the suggestion that he had obtained the signatures of both the accused persons on blank papers at the PS. The same cross examination of this witness had been adopted by accused Rajesh Kumar and Joginder.
28. In cross examination by Sh. N.K. Talwar for accused Rajesh, the witness deposed that they had reached the spot at about 11.40 pm where he had met ASI Ram Kishan. He stated that he had not recorded the main statement of the complainant but had recorded only the supplementary statement on 7th at about 1 or 1.30 pm and that he had done so at the spot. He admitted as correct the suggestion that the accused Rajesh had himself came to the Police Station and stated that it was on the basis of proof of identity which was either an Identity card or a Ration card that he had arrested the accused Rajesh. The witness stated that one other person was also with the accused. He answered that he had not called the complainant to the PS and denied having shown the accused Rajesh to the complainant at the PS. He denied the suggestion that he had obtained the signatures of the accused on blank papers. He denied that 17 the accused had refused to join in the TIP only because the witness had shown the accused to the complainant.
29. In the statements recorded of the accused they all have pleaded innocence. DW-1 who was examined on behalf of accused Rajesh stated that he knew the accused Rajesh and that the accused Rajesh worked with him as a mason. He deposed that on 6.8.04 the accused Rajesh had worked with him from 8 am to 9 pm. In cross examination by Ld APP for State the witness stated that it was about 2 years ago that Rajesh had been with him. He denied the suggestion that he had deposed falsely in order to protect the accused.
CONTENTIONS.
30. Ld APP for State has argued that there was sufficient evidence to convict the accused. According to the Ld Prosecutor even the witnesses who had not fully supported the prosecution did depose to the occurrence of acid throwing and the apprehension of a boy was fully established by the testimony of PW-9 Anil Kumar Bubna. The Ld APP submitted that it was through the boy who was apprehended from the spot that the remaining accused had been traced and arrested thus establishing that the acid throwing had been in furtherance of their conspiracy. Ld APP submitted that the accused Rajesh had been fully identified as the person who had thrown the acid on the unfortunate victim. Thus according to the Ld Prosecutor all the accused were liable to be convicted. Ld Prosecutor has further argued that from the MLC it was clear that homicidal burns were caused and FSL result show that sulphuric acid had been thrown on the victim. Therefore, according to him, the offence U/S 307 IPC was also made out against all the 18 accused.
31. The Ld Counsel for the accused Rajinder and Naresh Sh. J.P. Suhag has submitted that there was not a shred of evidence against these two accused and that merely because the accused Naresh and Rajinder were related or that Naresh knew the victim Deepak would be no reason to conclude that they were responsible for the injuries sustained by Deepak @ Tony. Similarly, the Ld counsel for the accused Joginder, Sh. Sanjay Suri has argued that no witness had deposed against the accused Joginder and nothing incriminating has been brought on record against this accused. Ld Counsel submitted that the accused had surrendered after obtaining anticipatory bail and there was nothing to connect him to the event. It was submitted that his refusal to join in the TIP was only on account of the fact that he had been shown to witnesses and this sole fact could not suffice to convict the accused for criminal conspiracy and that too of attempted murder.
32. The Ld Counsel for accused Rajesh Sh. N.K. Talwar has submitted that the prosecution had failed to prove the case against accused beyond shadow of doubt in as much as the material witnesses who are independent witnesses, PW-1 Parmanand and PW-6 Mange Ram did not support the prosecution's case. It was submitted that according to the prosecution these were the witnesses who had apprehended one of the assailants from the spot. However both the witnesses have denied having chased anybody or having caught hold of any boy immediately after the acid throwing incident. The Ld Counsel has submitted that the testimony of PW-9 Anil Kumar Bubna appeared very unsatisfactory as the witness was not sure whether it was Chaman or Rajesh 19 who had been apprehended at the spot. The Ld Counsel submitted that PW-9 being the complainant was an interested witness and therefore in the light of the fact that other witnesses who had allegedly caught hold of a boy at the spot did not support the prosecution's case, the sole statement of PW-9 could not be relied upon to hold that the prosecution had proved beyond shadow of doubt that Rajesh was involved in the incident. The Ld. Counsel has further argued that the PW-9 himself was not sure which of the two boys had actually poured the acid. Thus the identity of the assailants was in doubt. Thus according to the Ld Counsel the prosecution had failed to prove the charges against the accused Rajesh.
33. In other words while the prosecution has sought the conviction of the accused the Ld defence counsels have argued for the acquittal of the accused.
FINDINGS:
34. The prosecution's case as already noticed is that the accused Naresh had business rivalry with Deepak @ Tony and had entered into a criminal conspiracy with his cousin Rajender and the persons known to Rajender namely Joginder Kumar, Rajesh Kumar and Chaman to somehow injure Deepak @ Tony to either eliminate him or to prevent him from doing anything worthwhile in future. It goes without saying that conspiracy is difficult to prove through direct evidence, Conspiracy may be inferred through actions. In the present case on an assessment of the evidence on record it has been held that the chain of facts to establish criminal conspiracy is broken in vital areas.
2035. Though the evidence would be discussed a little more in detail hereafter, it may be mentioned briefly that even as per the hostile witness PW1 Parmanand the incident of acid throwing had occurred. The presence of a crowd is also admitted. Witnesses from the police have testified to the handing over of Chaman to the police by the crowd. Thus apprehension of Chaman at the spot cannot be doubted.
36. Though initially the prosecution had sought to move that the co-accused had been apprehended through the disclosure statement made by Chaman, the Investigating Officer when examined as PW12 chose to state that one person named Vijender who had accompanied the accused Chaman to Delhi had told the police that he could point out the houses of the accused Joginder, Rajender and Rajesh and it was with the said Vijender that he had gone to Sonepat. Thus, the presence of Chaman in the police party which went to Sonepat and apprehended accused Rajender will not suffice to connect Rajender with Chaman. Had the accused Rajender been apprehended upon the disclosure statement of Chaman and his pointing out alone, it would have been possible to trace the conspiracy through accused Rajender, Naresh, Joginder and Rajesh.
37. In the circumstances, there is no sound material to prove beyond reasonable doubt that the accused Naresh, Rajender, Rajesh, Joginder alongwith Chaman had entered into a criminal conspiracy to injure Deepak @ Tony on account of business rivalry. In fact Deepak @ Tony when examined as PW2 denied that he had any such business rivalry with accused Naresh. Thus, the charge u/S 120B IPC against the accused has not been substantiated.
38. All the four accused alongwith Chaman (who is 21 being tried by the Juvenile Justice Board) have also been tried for attempted murder of Deepak @ Tony. According to the prosecution the juvenile delinquent Chaman had called out to the co-accused Rajesh using words "Fook De Sale Ko"
the intentions being to eliminate Deepak @ Tony. In the absence of any evidence to show the presence of accused Joginder, Rajender and Naresh at the spot at the time of incident and in the absence of any evidence of criminal conspiracy amongst them to cause harm to Deepak @ Tony, it is not possible to come to a conclusion that the throwing of acid was in furtherance of the common intentions of Naresh, Rajender and Joginder which they shared with Rajesh and Chaman.
39. The question, therefore, that remains to be answered is how liable is the accused Rajesh. To determine this question we shall consider the evidence. PW1 Parmanand and PW6 Mange ram are the persons who had allegedly apprehended one of the assailants. Both the witnesses have denied apprehending anyone at the spot. Their testimonies however, would affirm that the incident of acid throwing had actually occurred. PW6 Mange Ram admits that his statement had been recorded by the police. Had PW6 Mange Ram no role to play in the apprehension of one of the assailant there would have been no occasion for the police to have recorded his statement. Be that as it may, the unsupporting statement of PW6 does not detract from the fact that one of the assailant had been apprehended at the spot.
40. PW1 has admitted that he had heard the calls of Pakro-Pakro and had seen one person cross his shop. From his testimony it is also obvious that he had heard these calls 22 and seen a crowd chasing a boy immediately after the acid had been thrown and alarm raised. The witness has admitted that he too had given chase but conveniently states that he had not apprehended anyone. From his statement an important fact that emerges is that a crowd of 25-50 persons had collected and a crowd, including himself had chased one boy. PW3 ASI Ram Kishan has deposed that the public had produced Chaman before the police and Chaman had been beaten by the public. PW5 HC Karamvir Singh has also deposed that a number of persons had gathered at the spot and the public persons had produced one person Chaman. From the testimony of PW11 Ct. Ashok Kumar and PW12 SI Naresh Kumar it is further clear that it was this Chaman who had accompanied the police party to Sonepat in search of remaining accused alongwith one Vijender. These witnesses have not been cross examined on these aspects. Thus, it is certain that despite the hostile testimonies of PW1 Parmanand and PW6 Mange Ram, Chaman had been apprehended at the spot.
41. In the background of this evidence we turn to the testimony of PW9 Anil Kumar Bhubna. It does appear on plain reading that this witness was confused regarding the identity of the person apprehended at the spot. But in the light of the evidence discussed above it is clear that it was not the accused Rajesh who had been apprehended at the spot.
42. PW9 Sh. Anil Kumar Bhubna is the only witness who has deposed to have seen the accused Rajesh at the spot. Rajesh was not apprehended at the spot. However, he could be held liable if there was evidence to show that he had participated in the throwing of the acid upon Deepak @ 23 Tony. PW9 Sh. Anil Kumar Bhubna has stated that he could not say what words had been used by one boy to the other and therefore, could not state whether Chaman had told Rajesh "Rajesh Fook De Sale Ko Moka Hai".
43. The identification made by PW9 Anil Kumar Bhubna of Rajesh at the spot has to be scrutinized carefully since he is the only witness to refer to the presence of accused Rajesh. In this respect, this witness has made contradictory statements while stating that he had seen two persons running from the spot one of whom was Rajesh. He had maintained that since there was no light at the spot he coud not say who had poured the acid. Despite cross examination by the Ld. APP he has stated that he could not state whether it was the accused Rajesh who had poured the acid over his nephew as he had not noticed the face on account of darkness at the spot. He has further admitted that on account of lapse of time he was unable to state with certainty that it was the accused Rajesh who had poured the acid. This witness PW9 Sh. Anil Kumar Bhubna has stated that out of two persons Chaman and accused Rajesh one of them had poured the acid on his nephew but he was unable to state who had done so because of the darkness at the spot.
44. In the light of another statement made by this witness, the assertion made by the witness of having seen the accused Rajesh at the spot becomes even more doubtful. This witness has stated "I was also not able to see the face as the assailants ran with their faces in the direction I myself was facing and so I saw them from behind while fleeing". How much of the faces the witness could have noticed when the place was in darkness and the persons were running is 24 an open question. Though this witness has stated that he had gone to Tihar Jail and had identified the accused Rajesh, the record shows that the accused Rajesh had declined to participate in the Test Identification Parade and in fact no such parade had been conducted. There was no occasion for this witness to have gone to Tihar Jail for identifying the accused Rajesh. He was also confused whether he had identified the accused Rajesh or the accused Joginder. Thus, it is to be seen that this witness after having had a fleeting glimpse of one of the assailants (with the other having been apprehended at the spot, and whom the witness would have had ample opportunity to observe) had a proper occasion to see the accused Rajesh only in the Court and that too in the dock. The identification thus made is tremulous and undependable.
45. The identification of accused Rajesh in the throwing of acid upon the unfortunate Deepak @ Tony is thus not established beyond shadow of doubt.
46. Though a heinous crime where sulphuric acid, a highly corrosive substance, had been thrown upon the victim Deepak Kumar Bhubna, and from which he had providentially escaped with injuries only over his right shoulder and right arm, the absence of conclusive proof against the accused who have faced trial before this Court namely Rajender, Naresh, Rajesh and Joginder none of them can be connected to the criminal act committed and held responsible for it.
CONCLUSION
1. In the light of the foregoing discussion therefore, the only result of the trial is to hold that the charge against the four accused namely Rajinder, Naresh Kumar, Rajesh Kumar 25 and Joginder Kumar u/S 120B IPC and u/S 307 IPC read with Section 34 IPC have not been proved beyond shadow of doubt. Criminal jurisprudence requires that the benefit of this doubt be given to the accused. Accordingly all the four accused Rajinder, Naresh Kumar, Rajesh Kumar and Joginder Kumar are acquitted of the charges under Section 120B IPC and u/S 307 IPC read with Section 34 IPC. Their personal bonds and surety bonds be cancelled and sureties stand discharged. File be consigned to the records.
Announced in the Open Court. (ASHA MENON)
Dated: 28.5.2007 Addl. Sessions Judge:
Delhi.