Delhi District Court
State vs . on 1 December, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.36/11
FIR NO. 1373/07
U/S 307/34 IPC
PS Sultan Puri
Unique Case ID No. : 02404R0680692007
State
Vs.
Rakesh @ Toni s/o Billu Singh
r/o G130, Sultan Puri, Delhi.
Date when committed to the court of Sessions :12.02.2008
Date when case reserved for judgment : 23.11.2011
Judgment pronounced on : 01.12.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 01.09.2007, on receipt of DD No.79B, ASI Devender Joshi along with Ct. Satbir reached the spot at G310, Sultan Puri, Delhi, where he came to know that injured had been removed to SGM hospital in a private vehicle and he could not find any eye witness at the spot and they reached the hospital and obtained the MLC of one Lila Dhar, who was declared fit for making statement and accordingly, he recorded SC No.36/11 Page 1/10 the statement of said Lila Dhar.
2. As per statement of the complainant Lila Dhar, he was residing at the said premises along with his father and on 01.09.2007, he was present at his house and two boys by the name of Toni and Lodi, who were known to him previously, came to his house and asked him to roam around with them and they were to fetch some money from someone and he became ready to go with them and at about 10 p.m, both of them took him to the bushes situated behind the Bhalla factory and demanded asking money for smoking Ganja to which he replied that he was having no money and on this, said Toni caught hold of him and Lodi exhorted to kill him and with a saw blade caused injury at his neck and also caused injuries at his forehead and after beating him, both of them ran away from there.
3. On the basis of the said statement, FIR was got registered and during investigation, at the instance of the said complainant, site plan was prepared and on 02.09.2007, accused Rakesh @ Toni was arrested in the case who pointed out the place of occurrence and on 03.09.2007, accused Anil Kumar was also arrested who also pointed out the place of occurrence and also got recovered the saw blade used in the said incident from the said bushes behind the Bhalla factory and after obtaining the final opinion on the MLC of the said SC No.36/11 Page 2/10 complainant, the charge sheet was filed against them u/s 307/34 IPC.
4. Before committal of the case before the Sessions Court, accused Anil s/o Panna Lal was held as juvenile and his case was transferred to the Juvenile Justice Board.
5. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 09.04.2008, framed charge against the accused u/s 307/34 IPC, to which he pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has produced as many as 7 witnesses which have been discussed below.
7. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.
8. I have heard Ld. APP for the state, Sh. Abhishek Kaushik, Amicus Curie, Advocate for the accused and perused the record.
9. PW2 HC Mahavir Singh proved the copy of FIR being duty officer as Ex.PW2/A. PW4 Dr. V.K. Jha proved the MLC of the said complainant Lila Dhar as Ex.PW4/A and opinion with regard to the nature of injury was simple caused by sharp object and in his SC No.36/11 Page 3/10 cross examination on behalf of the accused, the doctor replied that the patient was not under the influence of liquor. PW5 Dr. S.K. Abdul Samad proved the surgical opinion on the said MLC of the complainant Lila Dhar. PW6 Ct. Satbir Singh deposed regarding joining the investigation with ASI Devender Joshi and thereafter he took the rukka on 01.09.2007 to the PS for registration of the FIR and he is a witness of the arrest of accused Rakesh @ Toni vide memos Ex.PW1/C and Ex.PW1/D and he is the witness of the pointing out memo regarding the place of occurrence by the accused which is Ex.PW6/A and that on 03.09.2007, he again joined the investigation and in his presence, the said juvenile accused Anil was arrested and at whose instance the said sharp blade of saw was recovered regarding which sketch was prepared which is Ex.PW6/B and it was sealed with the seal of DJ and seized vide memo Ex.PW6/F and he proved the blade as Ex.P1 and he was not cross examined on behalf of accused Rakesh @ Toni.
10. PW7 is ASI Devender Joshi who is the IO of the case and deposed regarding the investigation conducted by him. In his cross examination on behalf of the accused, he replied that when he reached the hospital, injured was alone there and his brother namely Sanjay had transferred him to the hospital and said Sanjay met him after 12 in the mid night and his statement was recorded on the intervening night of 1st and 2nd September, 2007. He did not SC No.36/11 Page 4/10 remember if the injured had stated in his statement that he himself has gone to his house after the incident from the place of occurrence. He did not remember as to how Sanjay came to know regarding the incident. He replied that place of occurrence i.e. Bhalla factory, was not in working condition and there was slum area just at the back of the said factory. He further replied that he did not inquire from any person from the said slum area as to whether somebody had witnessed the incident or not.
11. Coming to the deposition of the complainant, PW1, who deposed that on 01.09.2007, at around 10 p.m, he was available at the said house and said two accused came to his house and called him outside and took him to a factory which is at a distance of 1 or 1½ km from his house and Anil @ Lodi demanded money from him to purchase Ganja and on his refusal, accused Rakesh @ Toni caught hold of him and said accused Lodi inflicted injury upon his neck and forehead with the help of saw blade and thereafter both the said accused ran away from there and he identified the accused Rakesh @ Toni present in the court, who had caught hold of him and from there, he came back to his house and that he was taken to SGM hospital by his brother Sanjay where he was medically examined and that police met him in the hospital and his statement Ex.PW1/A was recorded and he remained admitted in the hospital for one night and thereafter he was taken by the police to the place where the SC No.36/11 Page 5/10 incident had taken place and he pointed out the place to the police and that on 02.09.2007, he accompanied the police to the house of accused Rakesh @ Toni at G130, Sultan Puri, and identified the accused who was arrested vide memo Ex.PW1/B and Ex.PW1/C and the other accused was also arrested at his instance and the PW1 was not cross examined on behalf of the accused.
12. PW3 Sanjay is the brother of the said injured and deposed that on 01.09.2007, he had gone to see off his relatives outside his colony to the main road and that his neighbour Kishan told him that his brother had received injuries with knife blow on his neck and was lying near his house and he informed to one Beat Officer of the police regarding the injuries sustained by his brother while going towards the SGM hospital and that he got his brother admitted in the hospital and one police official came to the hospital and recorded the statement of his brother to the effect that two boys namely Toni and Lodi had taken his brother to near Bhalla factory and demanded for some amount and on refusal of the same, his brother was given knife blow on his neck and that Toni is present in the court who resides in the back lane of his house. He was cross examined by the Ld. Addl. PP wherein he admitted that he stated to the police in his statement that when he was present in his house, both the accused came to his house and took his brother with them.
SC No.36/11 Page 6/10
13. In his cross examination on behalf of the accused, he replied that the distance between the main road and his house is about half a kilometer and that he did not know as to how said Kishan came to know that his brother got injured and that Kishan was a minor child. He further replied that Bhalla factory was at a distance of about 2.5 kms from the place where his brother was lying and he did not know as to how his brother reached near the house from Bhalla factory after the incident and that his brother was conscious when he met him and his brother sat on his motorcycle with the support of one boy named Chavanni whose full name he did not know. He further replied that he was not inside his house on the day of incident and that one child from their neighbourhood namely Jitender @ Rahul informed him about the incident. He replied that on inquiry from his brother, he informed that he had come near the house on his own feet. He admitted that he had told the police that he was informed by some person and name of the child Rahul @ Jitender was not disclosed. He further admitted that his brother and accused were close friends. He did not know the fact whether they used to consume liquor together.
14. It was contended on behalf of Ld. Defence Counsel that PW1 Lila Dhar admittedly first went to his house against the alleged occurrence and as per deposition of PW3, the place of occurrence and the house of the injured, who was his brother, was situated at a SC No.36/11 Page 7/10 distance of 2.5 kms from their house and thereafter, as per deposition of both the said witnesses, he was taken to the said hospital on a motorcycle which was being driven by PW3 Sanjay and some person by the name of Chavanni was on the same motorcycle supporting the injured and in the hospital, when his MLC was prepared, the doctor has recorded that there was ENT bleeding but no bloodstained clothes of the injured were seized or of any other person who allegedly took the injured to the hospital especially of PW3 and said person by the name of Chavanni. He further contended that the claim of both PW1 and PW3 that they were knowing the accused prior to the incident and were on friendly terms also, but name of the accused was not disclosed to the doctor at the earliest opportunity in the MLC Ex.PW4/A and further, in the deposition of PW3, in his examination in chief, he mentioned the name of one Kishan as the person who informed PW3 regarding the injuries received by PW1 but in his cross examination he replied that one Jitender @ Rahul informed him about the incident. It has been further contended that it has not been established on record as to how and in what circumstances the injured PW1 reached his house after covering such a long distance from the place of occurrence after the incident nor any inquiry in this regard was made by PW3 or by the IO of the case PW7. It has been further contended that PW1 being the sole eye witness and injured of the case cannot be relied in SC No.36/11 Page 8/10 the said circumstances.
15. I am in complete agreement with the Ld. Defence Counsel and all his said contentions are hereby upheld and I am of the opinion that the story put forth by PW1 Lila Dhar does not inspire confidence and same is also not corroborated by the MLC Ex.PW4/A nor there is any explanation as to why he did not get the name recorded to the doctor particularly in such a circumstance where the delay between the time of the incident and reaching the hospital has already occurred if we go by the deposition of PW1 and PW3 which go to establish that a considerable time must have been taken by the PW1 reaching to his house from the place of occurrence and thereafter PW3 coming near his house and taking the injured to the hospital allegedly on a motorcycle but if we believe the version in the MLC Ex.PW4/A, which mentions that time of arrival in the hospital was 10.15 p.m on 01.09.2007, then the story of the PW1 becomes doubtful that he was called from his house at 10 p.m by the accused on 01.09.2007 and they took him to a distance of 1 or 1½ km from his house where the accused allegedly stabbed him (though PW3 claims the said distance as 2.5 kms) and from there the injured came to his house from where he was taken to the hospital and said all series of acts, by no stretch of imagination, could have been said to have taken place within a time of 15 minutes.
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16. Regarding recovery of the weapon of offence, it has been rightly contended that no public witness was joined to the recovery despite their admitted availability and the alleged place from where the recovery of the saw blade was effected, was accessible to all and such type of saw blades are easily available in the open market being used by a carpenter for his occupational work. In the said circumstances, I am of the considered opinion that recovery of the saw blade is still not proved beyond reasonable doubt nor the same was put to PW1 for identification of the said weapon of offence by him nor PW1 was joined in the investigation at the time of recovery of the said weapon of offence although it has been claimed by the IO as well as PW1, that it was at the instance of PW1 that accused Rakesh @ Toni was arrested.
17. In view of my said discussion, I am of the considered opinion that prosecution has miserably failed to prove the case against the accused beyond reasonable doubt and as such, benefit of doubt is extended to the accused and he is acquitted of the charge u/s 307/34 IPC. He be set at liberty forthwith, if not wanted in any other case. The file be consigned to the Record Room.
(Announced in the open court on 01.12.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.36/11 Page 10/10