Delhi District Court
Fir No.105/2011 State vs Lal Mohan Etc Page No. 1 Of 12 on 9 August, 2021
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE05 (EAST)
KARKARDOOMA COURTS, DELHI
S.C.No.471/2017
FIR No. 105/2011
U/s 308/34 IPC
PS Mandawali
State
Versus
1. Lal Mohan
S/o Sh. Sumari Rai
Village Raghavpur (East)
PS Jaravanpur
District Vaishali (Bihar)
2. Mukesh
S/o Sabbal Ram
R/o Village Raghavpur (East)
PS Jaravanpur
District Vaishali (Bihar)
......Accused
Date of Institution: 31.07.2017
Judgment pronounced on: 09.08.2021
JUDGMENT
1. Prosecution case in brief is that on 20.03.2011 HC Pawan received DD no.28A and thereafter, ASI Kanta Prasad alongwth SHO reached at the spot i.e. H.No. 50B, Gai no.2, Sevasadan Block where HC Ashok met them and told that quarrel FIR No.105/2011 State Vs.Lal Mohan etc Page no. 1 of 12 had taken place at the roof of said house. ASI Kanta Prasad went to the roof where one person aged about 2122 years was found unconscious in injured condition. Blood was found lying at the spot. The injured was removed to LBS Hospital by the SHO in his gypsy. HC Ashok was left for guarding the spot and ASI Kanta Prasad reached Hospital where he collected the MLC bearing no.2803/11 of injured Bhupender on which the doctor had mentioned 'alleged history of assault'. The injured was unconscious. In the hospital, eye witness Rahul Gupta met ASI Kanta Prasad and made a statement that he is doing the work of Cable alogwith his uncle Amrish Kumar Gupta at A77 New Ashok Nagar, Delhi. He has further alleged that on 20.03.2011 at about 2.00 p.m, he alongwith his father and uncle had come to the H.No.99, Gali no.2, Mandawali, Fazalpur i.e. the house of inlaws of his elder brother Sunny for celebrating Holi. At about 2.30 p.m., Bhupender, brother inlaw(sala) of his elder brother asked him that he will make him meet his friends and then they will celebrate Holi. Complainant alongwith Bhupender @ Panna, his younger brother Kishan and mausa Dharmender Gupta left the place and after covering some distance they reached at the first floor of a house where they played Holi with one boy and they all went to the roof (spot). At that time, someone used abusing language from the down stairs of the house and asked as to who is there at the roof, to this Bhupender and his friend asked as to who is hurling abuses. 23 boys told from the FIR No.105/2011 State Vs.Lal Mohan etc Page no. 2 of 12 down stairs that they are hurling abuses and that as to what they can do. On this, some manhandling took place between them but they separated them and again came on the roof. It has further been alleged that at about 3.00 p.m, four persons came abusing at the roof and uttered "salo aaj hum tumhe maja chakhate hai". One of the boys was having phantti which is used for plastering (cement) purpose. Another boy was having a brick in his hand and two boys were empty handed. The said boys started abusing Bhupender and his friend and started manhandling and beating Bhupender and his friend. The boys with empty handed caught hold Bhupender and the boy who was holding phantti gave a blow on the head of Bhupender. Another boy holding brick also gave brick blow on the head of Bhupender. Bhupender fell on the ground and blood started oozing out from his head. When complainant tried to save Bhupender, the boy holding phantti came to beat him but the complainant ran away from there to the house of Bhupender and informed at his house about the quarrel. The complainant reached back at the place of quarrel alongwith the family members of Bhupender. Police van came and removed Bhupender to the hospital. Complainant stated that the boy holding phantti was aged about 2530 years and had beard. The boy who was holding a brick was aged about 2021 years and empty handed boys were aged about 2022 years. He stated that he can identify them, if produced before him. On his statement Ex.PW3/J, IO ASI Kanta Prasad FIR No.105/2011 State Vs.Lal Mohan etc Page no. 3 of 12 prepared the rukka and got the case FIR no.105/2011 registered. ASI Kanta Prasad prepared the site plan. He lifted the phantti and brickbats from the roof. Thereafter, statement of injured Bhupender was recorded wherein he disclosed the name of boy who gave phantti blow as Mukesh and the name of the boy who gave brick blow as Lal Mohan and that he can identify the other two boys, if produced before him. During investigation, at the instance of secret informer, accused Mukesh and Lal Mohan were arrested. Both the accused disclosed the names of other boys who were residents of their village as Santosh Rai and Shyam Bahadur Rai. Both Santosh Rai and Shyam Bahadur Rai surrendered before the Court. TIP of both the accused were conducted but the same was not fruitful. Accused Mukesh and Lal Mohan did not participate in the TIP. MLC of complainant was submitted for final opinion on which, nature of injury was opined as 'grievous'. After completion of the investigation, chargesheet was prepared and filed in the Court for judicial verdict.
2. After compliance of Section 207 Cr.P.C the case was committed to Sessions Court. Charge u/s 308/34 IPC was framed against the accused to which they pleaded not guilty.
3. In order to prove its case, prosecution has examined PW1 Bhupendra Gupta, who is the injured/victim in this case. He FIR No.105/2011 State Vs.Lal Mohan etc Page no. 4 of 12 deposed that on 20.03.2011, on the day of Holi, Ram Prakash Gupta fatherinlaw of his sister, Rahul Gupta, brotherinlaw of his sister, Mahesh Gupta, husband of his sister and uncle of his brotherinlaw came to his house for celebrating Holi. His mausa Dharmender Gupta and mausi Chanchal Gupta were also present at his house. He alongwith Dharmender Gupta, Rahul Gupta and his younger brother Krishan came out from his house and went to the roof of a house situated near to his house for the purpose of smoking. Some persons started abusing from the ground floor of that house and when they objected they became silent. Thereafter, they returned back on the road. However, after few minutes, he again went back to the roof of that house. Some persons came on the roof and attacked on him. He sustained head injury in that attack. He stated that he is not acquainted with those persons who attacked on him and the persons who attacked on him are not present in the Court. He was declared hostile by the prosecution and cross examined by the Ld. Addl.PP but he denied all the suggestions put to him by the Ld. Addl.PP.
4. PW2 Kishan is the brother of the PW1. He also deposed that on 20.03.2011, their relatives had come to their house for celebration of Holi. His brother Bhupender had gone to celebrate Holi alongwith the said relatives to the house of his friend. His mausa Dharmender returned at about 3.00 p.m and told him that Bhupender has sustained injuries as quarrel had taken place at the roof of the neighbour at some distance from their home. He reached FIR No.105/2011 State Vs.Lal Mohan etc Page no. 5 of 12 at the spot where his brother Bhupender was lying on the roof. He with the help of other relatives brought him down and taken to the hospital. Information of the incident was given to the Police. His injured brother had not told him as to who caused the injury to him. Police had visited the hospital and recorded his statement. He was also declared hostile by the prosecution and cross examined by the Ld. Addl.PP wherein he denied the suggestion that he is eye witness of the incident and that the injuries were caused to his brother by bricks and stick which is used for plaster. He also denied the suggestion that accused Lal Mohan and Mukesh have participated in the crime and that their associates have overpowered his brother and both the accused have caused injuries to his brother. He also denied the suggestion that he is intentionally not supporting the prosecution case as he and his injured brother have settled the matter with the accused persons.
5. PW3 is ASI Ashok Kumar. He alongwith Ct. Yashpal were present outside the gali and on hearing the hue and cry, they reached at the spot where they had found one person lying unconscious and blood was oozing out from his head. He informed the SHO. SHO alongwith ASI Kanta Prasad reached at the spot. The injured was removed to the hospital by SHO. ASI Kanta Prasad noticed two pieces of bricks (blood stained) and one phanti (blood stained) which was lying at the spot. Blood was lifted with the help of cotton and was kept in a small box. Hairs were also lifted and FIR No.105/2011 State Vs.Lal Mohan etc Page no. 6 of 12 kept in the box. Pullandas were prepared and sealed with the seal of KPS and seized vide seizure memo Ex.PW3/A. The pieces of bricks, cotton, hair and earth control were seized vide seizure memo Ex.PW3/B. He further deposed that IO prepared the rukka and got the FIR registered. He also joined the investigation on 23.03.2011 and deposed about arrest of accused persons on the basis of secret information. The arrest memos of both the accused are Ex.PW3/E and Ex.PW3/F. Their personal search memos are Ex.PW3/G and Ex.PW3/H and the disclosure statements are Ex.PW3/C and Ex.PW3/D. The statement of Rahul Gupta is Ex.PW3/J, rukka prepared by him is Ex.PW3/K. The site plan prepared by ASI Kanta Prasad is Ex.PW3/L and pointing out memo is Ex.PW3/M. He identified both the accused in the court. He also identified the phanti Ex.P1 and pieces of bricks colly.Ex.P2.
6. PW4 Rahul Gupta is the complainant. He deposed that on 20.03.2011 at about 2 p.m, he alongwith his father, uncle and elder brother Sunny went to H.No.99 Gali no.2, Mandawali which was the house of wife of his elder brother Sunny Gupta and they went to receive his bhabhi after her first Holi. At about 2.30 p.m., Bhupender Gupta, brother in law of Sunny Gupta asked him to accompany him for meeting his friend and for playing Holi. He alongwith Bhupender, Kishan and Dharmender Gupta reached at that house and played Holi there. Thereafter, they went to the roof of the house. When they were talking to each other, some persons FIR No.105/2011 State Vs.Lal Mohan etc Page no. 7 of 12 started abusing them from the ground floor due to which some altercation took place between them and those persons. At about 3 p.m., four unknown persons came at the roof. One of them was having fanti (which is used for plastering the walls). One was having a brick and remaining two were empty handed. They attacked on them and gave beatings to them. Two of them who were empty handed caught hold Bhupender and the other person who was having fanti gave a fanti blow on the head of Bhupender. The person having a brick also gave brick blow on the head of Bhupender. Bhupender fell down. PW4 sustained minor injuries. He rushed to the house of Bhupender and informed his family members. He alongwith the family members of Bhupender reached back to the spot. Police removed Bhupender to hospital. He visited LBS Hospital where his statement Ex.PW3/J was recorded. He further deposed that the police seized the fanti and brick vide memo Ex.PW3/A and Ex.PW3/B. He identied the fanti and brick. He further deposed that none of the assailants are present in the Court today. He was also declared hostile by the prosecution and cross examined by the Ld. Addl.PP wherein he denied the suggestion that the accused Makesh and Lal Mohan were amongst the assailants. He further denied the suggestion that accused Mukesh was having fanti and accused Lal Mohan was having a brick and they had attacked on Bhupender and on him.
7. In the present case, PW4 Rahul Gupta is the FIR No.105/2011 State Vs.Lal Mohan etc Page no. 8 of 12 complainant/eye witness, PW1 Bhupender Gupta is the victim/injured and PW2 Kishan is another eye witness. PW1, PW2 & PW4 are the main star witnesses of this case and whole case of the prosecution rests upon their testimonies. Perusal of their testimonies shows that these witnesses have failed to support the case of the prosecution. PW1, PW2 and PW4 were declared hostile and cross examined by the Ld. Addl.PP but nothing fruitful could be extracted against the accused in cross examination. All the PWs have denied the relevant suggestions of the Ld. Addl.PP. No evidence has come on record against the accused persons in the testimony of PW1, PW2 & PW4. They did not identify the accused persons as the same boys who attacked on PW1 Bhupender on the day of incident. Ld. Addl.PP has requested for examination of remaining witnesses of this case. The complainant(PW4) and victim/injured (PW1) and eye witness(PW2), on whose statements the prosecution case rests, have turned hostile, thus, the request of Ld. Addl.PP for examination of remaining witnesses is declined as it would not serve any purpose as they are only formal witnesses. Since PW1 Bhupender Gupta, PW2 Kishan and PW4 Rahul have not supported the case of the prosecution, thus, there is no incriminating evidence available against the accused persons in this case. Perusal of the list of witnesses shows that prosecution has also cited one public witness namely, Kushal Pal s/o Ghanshyam in this case. Perusal of the record reveals that there is no statement u/s 161 FIR No.105/2011 State Vs.Lal Mohan etc Page no. 9 of 12 Cr.P.C of said witness is available on file. The facts of the case as also the chargesheet does not disclose any witness with the name of Kushal Pal. It thus, seems that his name has been wrongly mentioned in the list of witnesses. Ld. Addl.PP has also submitted that he has also gone through the police file and name of this witness does not surface anywhere in the record. Statement of accused u/s 313 Cr.P.C is therefore, dispensed with.
8. From perusal of the testimony of PW1, PW2 &PW4, it is clear that they are the complainant/injured & eye witnesses and star witnesses of the prosecution case but they have not supported the version of the prosecution case. It is well settled law that a witness who changes his stand from time to time cannot be considered to be a reliable witness. In this regard, this Court is supported with the Judgement of Hon'ble Apex Court titled Suraj Mal Vs. Delhi Admn. 1997 Criminal Law Journal 108(SC) CC Cases. In this case, Hon'ble Supreme Court has held as under : 'When the prosecution witness gives two different statements in their testimonies either at one or two suggest, therefore the testimony become unreliable and unworthy of credit and in the absence of any circumstances no conviction could be made therein'.
9. In this regard, this Court is also supported with the FIR No.105/2011 State Vs.Lal Mohan etc Page no. 10 of 12 Judgment of Hon'ble Delhi High Court titled as Raj Kumar Vs. State 1997(2) CC Cases HC 291. In this case, the Hon'ble High Court has held as under : 'Where the PW has been absolutely inconsistent and has been changing his stand from time to time, he cannot be regarded as reliable and trustworthy witness of the occurrence'
10. Thus, in view of the testimonies of PW1, PW2 & PW4, it is held that they are not reliable and trustworthy witnesses in respect to the prosecution case. In overall analysis of the evidence of prosecution witnesses & testimony of PW4 who is Complainant/eye witness, PW1 who is injured and & PW4 who is an eye witness, it is clear that their testimonies are unworthy of credit and on the basis of the evidence on record, the accused persons cannot be convicted. In view of the facts and circumstances of the case, it is to be held that there is no substantive evidence available against the accused persons in this case. In the absence of support from PW1, PW2 & PW4, the prosecution will never be in a position to prove its case against the accused.
11. In view of these facts and circumstances of the case and the reasons given above, the accused person are liable to be acquitted from this case. Accordingly, accused Lal Mohan and FIR No.105/2011 State Vs.Lal Mohan etc Page no. 11 of 12 Mukesh are hereby acquitted. Accused persons are directed to furnish bonds u/s 437A Cr.P.C in the sum of Rs.10,000/ with a surety of the like amount.
File be consigned to record room after the bond is furnished.
Announced in the open court on 09.08.2021 (AJAY GUPTA) Addl. Sessions Judge05(East) KKD COURTS, DELHI.
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