Delhi High Court
State vs Yogesh Sharma & Anr on 15 September, 2022
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: September 15, 2022
+ CRL.L.P. 69/2020 & CRL.M.A. 1211/2020
STATE ..... Petitioner
Represented by: Ms.Shubhi Gupta, APP for the
State with SI Daleep,
P.S.Adarsh Nagar.
Versus
YOGESH SHARMA & ANR. ..... Respondent
Represented by: Ms.Manika Tripathy, Advocate
(DHCLSC) with Mr.Roshan
Kumar, Mr.Manish Vashisht &
Mr.Shubham Hasija, Advocates
for the respondent No.1.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE ANISH DAYAL
MUKTA GUPTA, J. (ORAL)
CRL.M.A. 1211/2020 (for condonation of delay)
1. For the reasons stated in the application, delay of 20 days in filing the leave to appeal petition is condoned.
2. Application is disposed of.
CRL.L.P. 69/20201. The present leave to appeal had been filed by the State against the judgment dated 28th August 2019 whereby the two respondents Yogesh Signature Not Verified Crl.L.P. 69/2020 Page 1 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37 Sharma and Sonu were acquitted for offences punishable under Sections 302/392/394/397/34 IPC. Besides the two respondents, as per the prosecution case, two more persons were involved, one being a juvenile whose enquiry was conducted before the learned Juvenile Justice Board and the other alleged accused Pawan could not be arrested.
2. During the pendency of the present leave to appeal petition, respondent No. 2 Sonu passed away and thus, vide order dated 12th August 2021, this court noted that the petition qua respondent No. 2 stands abated. Thus, the leave to appeal is now sought only qua respondent No. 1 Yogesh Sharma.
3. Case of the prosecution is that the respondent No.1 was seen running along with the main accused Sonu who was having a knife in his hand coming from the side of the railway track besides the two other boys, who entered into the street of Chhapra Barber and ran towards Azad Pur village. Out of four boys, one was having a knife and said boy was Sonu. Behind these boys, one man aged 35-40 years was following, catching hold of his stomach with his hand and raising the alarm "pakdo, mujhe chaku maar diya hai" as stated by PW-2.
4. The FIR in question was registered not on the statement of PW-2 but of Inspector Brij Pal Singh who appeared as PW-23 who noted on the Tehrir that at the spot no eye witness was found and the injured died without making any statement. Thereafter, statement of PW2 was recorded who in his deposition before the Court stated as under:-
"PW2- MOHD. IQBAL, AGED 25 YEARS S/O RAJUDDIN R/O.T-35, MOOL CHAND COLONY, RAMA ROAD, ADARSH NAGAR, DELHI.Signature Not Verified Crl.L.P. 69/2020 Page 2 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37
ON S.A. I do the job of Mashakhori (to sell vegetables in retail) at Azad Pur Mandi.
On 16.06.2010, at about 7.45 or 8.00 PM, I was coming from Azad Pur Railway Station side and was going towards New Subzi Mandi via railway track, when I reached in front of the shop of Chhapra Baber, there I saw that four boys were coming from the side of railway track/railway bridge and they entered in the street of Chhapra Barber and ran towards Azad Pur Village. One of them was having a knife in his hand. One man, aged about 35-40 years was following said four boys and was catching hold of his stomach with his hands and was raising alarm, "pakdo, Mujhe Chaku Maar Diya Hai". I was having fracture in my left leg, as such I was unable to chase the said four boys. The said injured man went towards Jelarwala Bagh, railway track. I also left the place.
On 17.06.2010, I disclosed the abovesaid facts to the IO and he recorded my statement. I also gave the description of said four boys to the IO in my statement. I did not identify and accused in this case at any place. Out of the said four boys, three are today present in the Court (correctly identified). The knife was in the hand of accused today wearing blue shirt and jeans (witness pointed towards accused Sonu). I identified the fourth accused in TIP in Bachcha Jail (Observation Home) on 23.12.2010. I came to know his name as Pawan. Xxxxx by counsel Sh.R.S. Deshwal for accused Yogesh.
Earlier I was facing trial in a case U/s.399 IPC. But there is no case pending against me. It is wrong to suggest that I sustained facture in my legs due to the beating given by the police. It is wrong to suggest that I was a booked criminal of the area. Mahender Saini and one Sardar Ji are my neighbourer in the market, where I sell vegetables. I was going to Azad Pur Railway Station to consume liquor. I reached there from Mandi. The liquor is available opposite Station across the railway line. Light was there as the bulbs installed outside the shops were on.Signature Not Verified Crl.L.P. 69/2020 Page 3 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37
The injured was wearing pants and perhaps Banian also. I told this police on 17.06.2010 in the morning at about 10.30 AM, in the Subzi Mandi, where the police was making inquiries. Police made inquiries from other persons in the Subzi Mandi, but I don't know their names. At that time, I was taking tea from a tea shop, when I noticed that police is making inquiries. When I told the police that I know about this incident, they took me to the PS and then they inquired from me for about one hour and there they recorded my statement and I was discharged. I came to know the name of injured before two or four days of TIP of Pawan. I was knowing the name of injured/deceased on 17.06.2010.
I don't know any person by the name of Rajeev @Raju, resident of Azad Pur. I was also not knowing the names of accused persons on 17.06.2010. I don't remember on which date, the accused persons were arrested, but I came to know about their arrest later on. I came to know about their arrest on 19.06.2010 or 20.06.2010. Vol. They were arrested after I gave their description to the police. I was not having the mobile, when I saw the injured running on the railway track. Neither I, nor any other person tried to help the injured. I did not count the streets and, therefore, cannot tell that how may streets were there between railway station and the street, in which shop of Chhapra Barber was situated. The distance between flyover and shop of Chhapra Barber is less than the distance between the shop of Chhapra Barber and the railway station. Only one police office i.e. Inspector Brij Pal Singh was there, when he was making inquiries in the Subzi Mandi. He was in civil dress. I visited the PS only once, after 17.06.2010, in connection with the TIP of accused Pawan. My statement was recorded by the police only once i.e. 17.06.2010. Police did not record the statement of any other witness in my presence. It is wrong to suggest that I was not present at Azad Pur Railway Station on 16.06.201. It is wrong to suggest that I did not see any of the assailants. It is wrong to suggest that I am informer of the police. It is wrong to suggest that I am deposing falsely under the pressure of police. I have never appeared as witness in any court before today.Signature Not Verified Crl.L.P. 69/2020 Page 4 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37
Xxxxx by counsel Sh.Aseem Bhardwaj for accused Vikas @ Bihari.
It is correct that there are jhuggis alongwith the railway track. It is wrong to suggest that there are no streets in between those jhuggis. My statement recorded by the police on 17.06.2010, was read over to me immediately after recording. I told the police in my statement that as I was having a broken leg, therefore, I could not chase those boys. Again said : I told the police, but it was not recorded. I never thought that it is so important that it must have been recorded in my statement U/s.161 Cr.PC. It is wrong to suggest that I had not seen the accused on the alleged date and time, as deposed, or that I have been planted as a witness by the IO later on to frame the accused persons in the present case. It is wrong to suggest that I was not present at the spot at the alleged date and time, as deposed, or that I had deposed falsely.
Xxxxx by counsel Sh.Krishan Parashar for accused Sonu.
I adopt the above cross examination.
At this stage, Ld. APP requests that he wants to lead the witness regarding name of injured. Heard. Allowed.
It is correct that on 17.06.2010 itself, police told me that the injured, whom I had seen running holding his abdomen was Sant Lal.
Xxxxx by counsel Sh. R.S. Deshwal for accused Yogesh.
Police told me at the time of recording of my statement on 17.06.2010 that the injured had died, but did not tell me time of death. Police told me that residence of injured was nearby and he died there after removed from the spot. Again said : After crossing the railway line, the person fell down and I don't know if he could reach his home or not. Police did not tell me the father's name and address of Sant Lal.
Xxxxx by counsel Sh.Aseem Bhardwaj for accused Vikas and Counsel Sh.Krishan Parashar for accused Sonu.Signature Not Verified Crl.L.P. 69/2020 Page 5 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37
Nil. Opportunity given.
RO&AC"
5. From the testimony of PW-2, it is evident that he is not an eye witness to the scene of occurrence and has seen four boys coming from the side of railway track entering the street of Chhapra Barber, out of whom, one of them had a knife in his hand and the person behind them aged 35-40 years was holding his stomach with his hands and shouting "pakdo, mujhe chaku maar diya hai".
6. Undoubtedly, even as per the case of the prosecution, the respondent No. 1 is not the accused who was having knife at his hand or who gave knife blow. The only role assigned from the evidence of PW-2 was that the respondent No. 1 was one of the boys who was coming out besides three other boys out of which, one was carrying a knife in his hand. There is no recovery of any article or any weapon of offence from the respondent No. 1 which could connect him with the offence committed.
7. It is thus evident that there is no eye witness to the incident and no role of either any exhortation or participation in the offence or any evidence of any meeting of minds to come to the conclusion of a conspiracy with the main accused Sonu has been attributed to the Respondent no.1. Merely because respondent No. 1 was coming out of railway station at the time when Sonu had weapon of offence in his hand, cannot be a sufficient ground to convict the respondent No. 1 for offences punishable under Sections 302/392/394/397/34 IPC. The view taken by the learned Trial Court in acquitting the respondent No. 1 is a plausible view and this Court finds no Signature Not Verified Crl.L.P. 69/2020 Page 6 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37 reason to disagree with the same. Hence, no case for grant of leave to appeal is made out.
8. Petition is dismissed.
9. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
ANISH DAYAL, J.
SEPTEMBER 15, 2022 akb Signature Not Verified Crl.L.P. 69/2020 Page 7 of 7 Signed By:ATISH GOEL Signing Date:16.09.2022 17:50:37