Delhi District Court
State vs . 1. Dharampal @ Kapil, on 19 March, 2018
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Dharampal @ Kapil,
S/o Sh. Surat Singh,
R/o Village Saveli,
District Sonipat, PS Rai,
Haryana.
2. Roshan Lal Gupta,
S/o Sh. Mahesh Prasad,
R/o H. No. 3/13, Second Floor,
Gali No. 9, Mahavir Enclave,
Palam, New Delhi.
3. Varun Bhardwaj @ Monu,
S/o Sh. Joginder Bhardwaj,
R/o T3, Param Puri,
Uttam Nagar, New Delhi.
4. Arvind Sharma @ Pushkar,
S/o Sh. Kanchan Lal,
R/o H. No. RZ123, Santosh Park,
Uttam Nagar, New Delhi.
● CNR No. : DLSW010004032012.
● Registration No. of the Case : 441109/2016.
● SC Number : 131/2015.
Page No. 1 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
2
● FIR Number : 238/2011.
● PS : Dwarka North.
● Under Section : 186/353/307/34 IPC.
● Date of Institution : 13.03.2012.
● Case committed to the Court of
Sessions for : 28.03.2012.
● Case received by this Court by
way of transfer on : 09.02.2015.
● Case reserved for Judgment on : 24.02.2018.
● Judgment announced on : 19.03.2018.
JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 In this case, the FIR was registered on the complaint of Const. Sunil Kumar (PW3), who mentioned that on 23.10.2011, at about 9.30 pm, when they were checking the vehicles by putting barricades near Kakrola ganda nala picket, one car having 45 boys came and despite signalling them to stop, they moved fast towards Kakrola more (turn) while abusing them.
Further, the boy sitting besides the driver removed his head and hand out of the car and fired towards Const. Lalu Ram (PW2) and the bullet hit on the right shoulder of Const. Lalu Ram.
Page No. 2 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
3 Thereafter, the injured police official was taken to hospital and FIR was got registered. About two months after the incident, accused persons Dharampal @ Kapil and Varun Bhardwaj @ Monu were arrested, whereas, accused persons Roshan Lal Gupta and Arvind Sharma @ Pushkar were arrested later on.
2. After culmination of investigation, the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 14.05.2012, Ld. ASJ framed charges under Sections 186/353/307 r/w/s 34 IPC against accused persons Dharampal @ Kapil, Varun Bhardwaj @ Monu and Arvind Sharma @ Pushkar, whereas, said charges were framed vide order dated 29.11.2016 against accused Roshan Lal Gupta, to which they pleaded not guilty and claimed trial.
4. For proving its case, prosecution has produced 15 Page No. 3 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
4 witnesses.
4.1 The most important prosecution witnesses were the eye witnesses i.e. PW2 Const. Lalu Ram and PW3 Const. Sunil Kumar.
4.2 PW14, Dr. Vikas Gupta, Consultant Surgeon, Ayushman Hospital, Dwarka Sector12, proved MLC of injured police official Const. Lalu Ram.
4.3 Rest of the witnesses were formal witnesses or related to investigation.
5. Statement of the accused persons was recorded u/s 313 CrPC. When the accused persons were briefed on all the incriminating evidence and documents, they denied the allegations and mentioned that they have been falsely implicated in the present case.
6. The accused persons opted not to lead any evidence in their defence.
APPRECIATION OF EVIDENCE:
7. I have heard the State through Sh. Girish Kumar, ld.
Page No. 4 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
5 Additional PP for State; accused persons Dharampal @ Kapil and Arvind Sharma @ Pushkar through ld. counsel Sh. Anirudh Yadav; accused Varun Bhardwaj @ Monu through ld. counsel Sh. Dinesh Mudgil; and accused Roshan Lal Gupta through ld. counsel Sh. Neeraj Dahiya. Record is also gone through.
8. It is summed up by ld. Additional PP that both the eye witnesses (PW2 and PW3) have identified the accused persons during their testimony and they have also proved the fact that accused Varun Bhardwaj @ Monu had fired on Const. Lalu Ram while sitting in the car with coaccused persons and thus, the accused persons should be convicted. On the other hand, ld. defence counsel argued that both the said eye witnesses already knew the accused persons prior to the incident and that is why, the accused persons refused to participate in TIP proceedings and moreover, neither the weapon of offence nor the car allegedly used by the accused persons was recovered and thus, benefit of doubt should be given to the accused persons.
9. In this case, there are following important points of determination:
Page No. 5 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North. 6 (A) Whether all the accused persons voluntarily obstructed the police officials during discharging of their official duties; and (B) Whether accused Varun Bhardwaj @ Monu, in furtherance of common intention with other accused persons, shot at Const. Lalu Ram with intention to kill him.
10. The prosecution case is based on direct evidence of eye witnesses i.e. PW2 Const. Lalu Ram and PW3 Const. Sunil Kumar, who were on duty at the spot at the time of incident. On scrutinizing the testimony of both these witnesses and the record, number of material contradictions and discrepancies emerge. First of all, there is no clarity as to where the said witnesses were positioned at the spot at the time of incident. PW2 has mentioned that when accused Varun Bhardwaj @ Monu fired on him, he and PW3 were not standing together and they were standing on different sides of barricade. However, he changed his stand while explaining during cross examination conducted on behalf of accused Dharampal @ Kapil that Const. Sunil Kumar (PW3) was ahead near another barricade and he Page No. 6 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
7 (PW2) was standing besides another barricade and both the barricades were placed at a distance of about 10 feet. But, in contradiction to the version of PW2, the site plan Ex.PW15/A1 reflects that both the witnesses were standing together besides one barricade.
11. Further, it can be seen that PW2 has also given contradictory version about the description of car during his testimony recorded on different occasions. At one point of time, he mentioned that the car in which the accused persons came was of Maruti make, whereas, subsequently, he mentioned that the accused persons came in Santro car (Hyundai make). On this issue, PW3 has mentioned that he could not recognize the car used by the accused persons and surprisingly, he could not even disclose the colour of the vehicle. In view of this Court, the inconsistency regarding description of the car casts serious doubt on the testimony of the witnesses, who, being the police officials on duty of checking the vehicles on the date of incident, were supposed to know the description of cars commonly used by the people. Moreover, it also raises suspicion whether there was sufficient light at the spot to enable the witnesses to recognize Page No. 7 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
8 the car used by the accused persons.
12. Further, another contradiction has come regarding source of light at the spot at the time of indicate. It is observed that PW2 has mentioned in his cross examination conducted on behalf of accused Varun Bhardwaj @ Monu that there was proper light at the picket, whereas, during cross examination conducted on behalf of accused Roshan Lal Gupta, he mentioned that there was dark at the spot. Further, PW3 too testified that it was dark at the time of incident. Furthermore, PW3 has also mentioned that the car was at a fast speed at the time of incident. In aforesaid circumstances, there appears to be reasonable doubt as to how the eye witnesses were able to identify the accused persons sitting in the car, which was moving at a high speed in the dark at the place of incident. It is pertinent to mention here that during night, when the headlights of the car are on, it becomes more difficult to identify the person sitting in that car from outside.
13. Regarding identity, both the eye witnesses i.e. PW2 and PW3, have deposed that accused Varun Bhardwaj @ Monu was Page No. 8 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
9 sitting on the seat besides the driver and he had shot at PW2. In the first complaint Ex.PW3/A, Const. Sunil Kumar mentioned that the person, who fired was wearing black shirt, his face was round and bulky and he was having long hair. Const. Lalu Ram (PW2) mentioned that no sketch of any accused person was prepared at his instance and further, replied during cross examination conducted on behalf of accused Varun Bhardwaj @ Monu that he did not tell the description of the accused, who fired at him, to Const. Sunil Kumar. Further, he was confronted with his police statement when he stated that he disclosed the description of the accused to the IO during his police statement. Though PW3 mentioned that he got prepared the sketch of accused Varun Bhardwaj @ Monu, but it is evident that no such sketch was placed on record. More importantly, the prosecution failed to prove that the features of accused Varun Bhardwaj @ Monu, who allegedly fired at Const. Lalu Ram, matched with the description of the person mentioned in the first complaint Ex.PW3/A. Thus, the identity of the assailant has not been established beyond reasonable doubt.
14. Regarding identity of other accused persons, PW2 Page No. 9 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
10 mentioned during cross examination conducted on behalf of accused Dharampal @ Kapil that apart from accused Varun Bhardwaj @ Monu, he could not see any other person sitting in the car. Further, PW3 mentioned that perhaps accused Roshan Lal Gupta was driving the car. Thus, it is clear that no eye witness is certain about identity of accused Roshan Lal Gupta.
15. Moreover, ld. defence counsel rightly pointed out that accused persons Dharampal @ Kapil and Varun Bhardwaj @ Monu were allegedly arrested by PW6, PW7, PW8 and PW12 in case FIR No. 274/11 of PS Dwarka North and they were kept in the PS during night and on the next day, both the said accused persons were arrested in the present case and since both the eye witnesses were also posted in the said police station and must have seen the accused persons in the police custody, the said accused persons were justified in refusing to participate in the TIP proceedings. Moreover, it is noteworthy that it was not proved on record that the said accused persons were kept in police custody in muffled face before their production in the Court on next day after arresting them in this case in the police station and that is why their refusal to participate in the TIP Page No. 10 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
11 was justified.
16. Further, it is rightly pointed out by defence side that neither the blood was recovered from the spot nor the blood stained uniform of the injured was produced during trial in this case. Further, there is no explanation as to why the empty cartridge could not be recovered from the spot. It is also noteworthy that the bullet recovered from the body of the injured could not be matched with the weapon allegedly recovered from accused Varun Bhardwaj @ Monu in case FIR No. 274/11 of PS Dwarka North as per FSL report Ex.PW15/H. Overall, it is found that no corroborative evidence has been placed on record to substantiate the charges.
17. In view of discussion made above, it emerges that no concrete evidence has come on record to show that the accused persons were in the car, which was signalled to stop by PW2 and PW3 on the date of incident or that accused Varun Bhardwaj @ Monu had fired at Const. Lalu Ram with intention to kill him. In light of the contradictions and discrepancies noted above, the benefit of doubt is required to be given to the accused persons.
Page No. 11 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.
12 CONCLUSION:
18. For the reasons recorded above, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt in respect of any charge and accordingly, all four accused persons are pronounced not guilty in respect of offences punishable u/s 186/353/307 r/w/s 34 IPC.
Announced in the open Court
on 19th day of March 2018. VIVEK Digitally signed
by VIVEK
(total 12 pages) KUMAR KUMAR GULIA
Date: 2018.03.20
GULIA 15:22:39 +0530
(VIVEK KUMAR GULIA)
ASJ03 & Special Judge (Companies Act)
Dwarka Courts (SW), New Delhi.
Page No. 12 of 12. State Vs. Dharampal @ Kapil & Others;
FIR No. 238/11 of PS Dwarka North.