Delhi District Court
State vs . Naresh Kumar @ Tinku on 28 August, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State vs. Naresh Kumar @ Tinku
FIR No. 228/11
Police Station : Chhawla
Under Section : 336/452/34 IPC.
Unique Case ID Number: 02405R0323842013
Date of institution : 11.11.2013
Date of reserving : Oral
Date of pronouncement: 28.08.2014
JUDGMENT
a) Serial number of the case : 323/1/13
b) Date of commission of : 03.11.2011
offence
c) Name of the complainant : Sh. Ramdhan Yadav
S/o Late Sh. Puran Singh
R/o VPO Paprawat, Najafgarh,
New Delhi.
d) Name, parentage and : 1. Naresh Kumar @ Tinku
address of the accused (since deceased)
S/o Sh. Ramesh Kumar,
R/o Village Hasanpur, PO Ujwa,
Najafgarh, New Delhi.
2. Najakat Ali,
S/o Sarafat Ali,
R/o RZ 34, C Block,
Old Roshanpura, Najafgarh,
New Delhi.
State v. NareshKumar @ Tinku and others
FIR No. 228/2011 P.S.: Chhawla Page 1 of 10
3. Bhajan,
S/o Sh. Kapoor Singh,
R/o Village Lova,
PS Bahadurgarh Sadar,
Distt. Jhajjar, Haryana.
e) Offence complained of : 336/452/34 IPC.
f) Plea of the accused : Accused Nazakat and Bhajan
pleaded not guilty
g) Final order : Accused Nazakat and Bhajan
acquitted of offence punishable
U/s 336/452/34 IPC.
Proceedings qua accused
Naresh Kumar @ Tinku abated
vide order dated 24.03.2014.
h) Date of final order : 28.08.2014
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment, the accused namely Najakat Ali and Bhajan are being acquitted of the offences punishable under Section 336/452/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 228/2011 Police Station Chhawla for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 03.11.2011 at about 03.10 AM at Gher of Ramdhan, near Paprawat village, Tiraha, Najafgarh, New Delhi within the jurisdiction of PS Chhawla the accused Najakat Ali and Bhajan along with co-accused Naresh @ Tinku (since State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 2 of 10 deceased) in furtherance of their common intention committed house trespass by entering into the aforesaid Gher of Sh. Ramdhan used as a place of human dwelling having made preparation for causing hurt to Sh. Ramdhan and others where they fired two gun shots in air so as to endanger human life. FIR was registered on the statement of complainant Sh. Ramdhan Yadav. Accused persons were arrested in the present case and after completion of investigation, police report was filed in the Court.
3. Summons sent to the accused Naresh Kumar @ Tinku were returned unserved with the report that he had expired on 07.04.2012. Death verification report was filed by the investigating officer. In view of the same, proceedings qua accused Naresh Kumar @ Tinku stood abated vide order dated 24.03.2014.
ACCUSATION AGAINST THE ACCUSED
4. Vide order dated 14.07.2014, charge for the offences punishable under Section 452/336/34 IPC was framed against the accused persons Nazakat Ali and Bhajan to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
5. The prosecution has only examined three witnesses. PW-1 Smt. Meena Yadav is the wife of the complainant. PW-2 Sh. Mohit Yadav is the nephew of the complainant and an eye witness in the present case. PW-3 Sh. Ramdhan Yadav is the complainant and an eye witness in the present case.
State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 3 of 10
6. PW-1 Smt. Meena Yadav deposed in the court that on 02/03.11.2011, at about 12.45 am, she received a call from her nephew Mohit who told her that he wanted to talk to her husband Sh. Ramdhan and she accordingly gave the phone to her husband. She further deposed that after talking to Mohit, her husband went to the Gher from where Mohit had called him. She further stated that she stayed at home as her children were alone in the house. She further deposed that she did not know anything else about the present case. PW-1 was cross- examined at length by the learned Assistant Public Prosecutor for the State as she had resiled from her previous statement. However, despite cross-examination by learned Assistant Public Prosecutor for the State, she did not support the prosecution version. She denied the suggestion that Mohit had informed her on phone that some vegabonds had entered their Gher and were trying to steal the Scorpio car. She also denied that she later on came to know that the accused persons had fired at her husband and Mohit and in order to save himself, her husband had also fired at the accused persons with his double barrel gun. She also denied the suggestion that as they had settled the matter with the accused persons and she had deposed falsely to save the accused persons.
7. PW-2 Sh. Mohit Yadav deposed that on 02/03.11.2011, at about 11/12 midnight, while he was present in his room, at his farm house, he noticed one shadow outside his room and when he looked outside his room, he saw that one person was trying to unlock the Scorpio car which was stationed inside their Gher. He further deposed that he State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 4 of 10 made a call to his uncle who also reached at the spot after 10-15 minutes and on hearing the noise of his motorcycle, the accused fled from there in a Black coloured Santro car. He further deposed that after sometime, the said Santro car returned to their farm house. He further deposed that he had identified one person who was present in their farm house as one Tinku who belongs to village Hasanpur and whom he knew since prior to the incident. He further deposed that accused Tinku stopped the Santro car and started firing, on which he along with his uncle immediately came inside his Gher and made a call at 100 number. He further deposed that police came at their Gher and he along with his uncle went to the house of accused Tinku, however, he could not be found there. PW-2 was cross-examined at length by the learned Assistant Public Prosecutor for the State as he had resiled from his previous statement. However, despite cross-examination by learned Assistant Public Prosecutor for the State, he did not support the prosecution version. He denied the suggestions that when accused persons fired towards his uncle, his uncle Sh. Ramdhan also fired towards them and that on the same day he had gone to the BDO office where he had correctly identified the Santro car of accused persons bearing no. HR 26 N 4961 and the two accused persons involved in the present case. He also denied the suggestion that the name of those boys were Bhajan and Nazakat Ali. He stated that he had signed the arrest memos of accused Bhajan and Nazakat Ali as a witness as accused persons were arrested by the police at BDO Office. He denied the suggestion that as there is a cross case against him and his uncle, they have settled the matter with the accused persons or that State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 5 of 10 due to this, he had deposed falsely to save the accused persons. PW-2 could not identify the case property i.e. double barrel gun, the belt and 14 rounds (out of which four were empty) in the court.
8. PW-3 Sh. Ramdhan Yadav is the complainant in the present case. He deposed in the court that on 02/03.11.2011, at about 12.45 am, when he was present in his house, Mohit gave a call to him and informed him that someone is trying to open their Scorpio car which was stationed at their plot inside their Gher. He stated that he accordingly, reached at the Gher, however, on seeing his motorcycle, the accused persons fled away from the spot. He further deposed that during the process, he could only see the face of one Naresh @ Tinku (since deceased). He deposed that he made a call at 100 number and before the police reached at the spot, the accused persons returned to the spot and accused Naresh @ Tinku fired four gun shots at him and he saved himself by taking the sheild of a tree. He further deposed that at that time, he was also carrying his licensed double barrel gun and he fired in the air with the same in order to save himself and Mohit. He further deposed that police reached at the spot and the accused persons fled away from the spot. He deposed that his statement was recorded and FIR was registered. PW-3 was also cross-examined at length by the learned Assistant Public Prosecutor for the State as he had resiled from his previous statement. However, despite cross- examination by learned Assistant Public Prosecutor for the State, he did not support the prosecution version. He denied the suggestions that Mohit had told him that three accused persons had entered into their Gher and out of them he had correctly identified accused Naresh @ State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 6 of 10 Tinku (since deceased) and that immediately thereafter, one black coloured Santro car came at the gate of their Gher and two persons got down from the car and the person who was sitting on the driver seat fired against him from his gun. He also denied the suggestion that he had seen all the three accused persons at the spot. Despite the accused persons Bhajan and Nazakat having been shown to him during his cross-examination by the learned Assistant Public Prosecutor for the State, he could not identify them as the assailants. He denied the suggestion that he had intentionally not identified the accused persons as he has settled the matter with the accused persons. He denied the suggestion that the police had seized the Santro car no. HR 26 N 4961 in his presence vide memo Ex. PW 2/E. He volunteered that the said car was shown to him by the investigating officer in the police station. He, however, admitted that his double barrel gun was seized by the police. He denied the suggestion that on 03.11.2011, he along with Mohit had reached at BDO office where he correctly identified accused Nazakat and Bhajan while they were sitting in a grey coloured car or that accused Nazakat and Bhajan were arrested by the investigating officer at his instance. He volunteered that his signatures were obtained by the investigating officer on the arrest memos in the police station. He correctly identified the case property i.e. double barrel gun, iron scale, belt and 14 rounds (out of which four were empty) as Ex. P2, Ex. P1 and Ex. P3 respectively.
9. Admittedly, there is no other eye witness to the alleged incident and the material/eye witnesses cited by the prosecution i.e. PW-1 Smt. Meena Yadav, PW-2 Sh. Mohit and PW-3 Sh. Ramdhan Yadav have State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 7 of 10 not supported the prosecution case except with regard to the identification of accused Naresh Kumar @ Tinku, who has already expired and qua whom the proceedings already stand abated vide order dated 24.03.2014. The remaining witnesses cited by the prosecution are either formal in nature or are police officials.
10. Prosecution evidence has been closed vide detailed order of even date. Examination of the accused persons under Section 313 Cr.P.C. has been dispensed with as there is no incriminating evidence against the accused persons.
ANALYSIS AND FINDINGS
11. The record has been carefully and thoroughly perused. The submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for State and Sh. Vipin Sehrawat, learned counsel for the accused persons, have been heard and considered.
12. Perusal of record reveals that the only material against the accused persons is that accused Bhajan and Nazakat had been arrested at the instance of the complainant and his nephew Mohit, their disclosure statements and the fact that one of the accused i.e. accused Naresh Kumar @ Tinku (since deceased) had been specifically named in the FIR. It is needless to state that the alleged disclosure statements of the accused persons are inadmissible in evidence having been made before a police officer while in his custody. Further, accused Naresh Kumar @ Tinku, who has been named in the FIR, has already expired and proceedings against him stand abated. The eye witnesses cited by the prosecution i.e. PW-2 Sh. Mohit and PW-3 Sh. Ramdhan State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 8 of 10 Yadav have failed to identify the accused persons as the offenders during their examination in the court. All the witnesses were cross- examined at length by the learned Assistant Public Prosecutor for the State. However, despite cross-examination by learned Assistant Public Prosecutor for the State, none of them supported the case of the prosecution on the point of identity of the accused persons, namely, Nazakat Ali and Bhajan. In their cross-examination on behalf of the State, PW-2 and PW-3 denied having identified the accused persons, namely, Nazakat Ali and Bhajan before the investigating officer at BDO Office. They also denied that the accused persons, namely, Nazakat Ali and Bhajan were arrested at their instance or in their presence. Despite the accused persons having been specifically shown to them, PW-2 and PW-3 could not identify them as any of the boys involved in the commission of the offences in the present case. So far as PW-1 Smt. Meena Yadav is concerned she is admittedly not an eye witness to the occurrence and her evidence is merely hearsay.
13. In view of the fact that the eye-witnesses/material witnesses to the alleged offence cited or examined by the prosecution have resiled from their previous statement and have failed to identify the accused persons as the assailants who had committed the alleged offence, there is no other material on record against the accused persons to connect them to the alleged offence.
14. Further, the alleged weapon of offence i.e. a country made pistol, with which the accused accused had allegedly fired, has not been recovered in the present case.
State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 9 of 10
15. In these circumstances, in the considered opinion of this Court, the prosecution has miserably failed to prove its case against the accused persons Nazakat and Bhajan. Accordingly, the accused Nazakat Ali and Bhajan are acquitted of the offences punishable under Section 336/452/34 IPC.
16. Proceedings qua accused Naresh Kumar @ Tinku already stand abated.
17. File be consigned to Record Room.
Announced in open Court on 28.08.2014 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 28.08.2014 State v. NareshKumar @ Tinku and others FIR No. 228/2011 P.S.: Chhawla Page 10 of 10