Delhi District Court
State vs Rambir on 27 July, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28616/2016)
FIR No. 137/2008
Police Station DBG Road
Charge-sheet filed under Sections 323/308/34 IPC
Charges framed against accused 147/148 IPC, 308/149
persons. IPC, 323/149 IPC.
State Versus 1. Rambir,
S/o Late Sh. R. C. Sharma,
R/o 225/9, Padam Nagar,
Kishanganj, Delhi.
2. Raj Singh @ Raju,
S/o Sh. Mahinder Singh,
R/o 256/6, Padam Nagar,
Kishanganj, Delhi.
3.Vijay Attri,
S/o Sh. Mahinder Singh,
R/o 218/7, Padam Nagar,
Kishanganj, Delhi.
4. Satender Goel,
S/o Sh. Sanjay @ Ajay,
R/o AG-59, Shalimar Bagh,
Delhi.
5. Sri Bhagwan,
S/o Sh. Gowerdhan,
R/o 228/1 & 2 Bagh Kadekhan,
Kishanganj, Delhi.
...Accused Persons.
FIR No. 137/2008, PS DBG Road, Page No. 1 of 51
State Vs. Rambir & Ors.
Date of Institution of case 06.07.2010
Date of Arguments 27.07.2024
Judgment reserved on 27.07.2024
Judgment pronounced on 27.07.2024
Decision Acquitted
JUDGMENT
1. Accused persons namely Rambir, Raj Singh @ Raju, Vijay Attri, Satender Goel and Sri Bhagwan are facing trial for the offences punishable under Sec. 147/148, Sec. 308/149 & Sec. 323/149 IPC. The story of the prosecution is that on 29.04.2008 at 01:40 am, at Azmal Khan Road, DBG Road, Delhi all the five accused persons being member of unlawful assembly used violence in prosecution of common object of such assembly and caused hurt to complainant Sh. Piyush Gupta and others. Further, on the abovesaid date, time and place as members of the said assembly, while indulging in rioting, all accused persons were armed with wooden sticks, which were used as weapon of offence in a manner as was likely to cause death. Further on the abovesaid date, time and place, all accused persons as members of said unlawful assembly, caused injuries on the head and other body parts of Sh. Piyush Gupta, Rajesh, Jitender and Ravinder Kumar @ Ravi Sidhwani with sticks and batons with such intention or knowledge and under such circumstances that if by that act, accused persons would have caused their death and they would have been guilty of culpable homicide not amounting to murder. Further on the aforesaid date, time and place all accused FIR No. 137/2008, PS DBG Road, Page No. 2 of 51 State Vs. Rambir & Ors.
persons as members of said unlawful assembly, in prosecution of the said common object of causing hurt, voluntarily caused hurt to Ashish Gupta with stick and batons.
2. The brief facts which are born out from the record of the case are that on 29.04.2008 on receiving DD No. 4A, Ex. PW- 1/A regarding quarrel and injuries at Ajmal Khan Park, PW-23 IO/ASI Karan Pal along with Ct. Ashish reached at the spot of incident where they came to know that injured had been shifted to RML Hospital. Thereafter IO alongwith Ct. Ashish reached at RML Hospital and collected MLCs of injured persons namely Sh. Piyush Gupta, Ravinder, Jitender and Rajesh, however, no injured persons met them in the hospital as they had already left the hospital. Meanwhile, IO received an information from Duty Officer that the injured persons had been admitted at Jeevan Mala Hospital. Thereafter, IO reached Jeevan Mala Hospital and collected the MLCs of injured persons. He recorded statement of complainant/injured Piyush Gupta and on the basis of his complaint, IO prepared rukka and got the present FIR registered under Sec. 323/308/34 IPC at PS DBG Road through Ct. Ashish. Thereafter IO collected CD and Video Cassettes of reception party. IO called the complainant to Police Station and he played the said CD in his presence, in which complainant identified the accused persons namely Rambir, Raj Singh and Vijay Attri. Thereafter further investigation of this case was entrusted to PW- 23 SI Maninder Singh. Thereafter IO/SI Maninder Singh tried to search the accused persons but they could not be traced. He also FIR No. 137/2008, PS DBG Road, Page No. 3 of 51 State Vs. Rambir & Ors.
tried to search the mobile in question of complainant and during search, it was revealed that the said mobile phone was being used by one Lalit Batra. IO met with Lalit Batra who disclosed that he was found the said mobile phone from TSR and he searched the owner of the same but since the owner was not found, therefore, he was using the said mobile phone. During investigation IO formally arrested accused Rambir, Raj Singh and Vijay as they had already been granted anticipatory bail. Thereafter further investigation of the present case was transferred to AATS, Crime Branch. Thereafter IO/SI Virendra Prakash arrested accused Satender Goel. Accused Shri Bhagwan was granted anticipatory bail by court of Sessions. Thereafter further investigation was entrusted to Inspector Davinder Kumar who got verified parcha- 12 of all the accused persons. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO.
3. Vide order dated 0 1 . 0 6 . 2 0 1 0 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to accused p e r s o n s and d e f i c i e n t c o p i e s w e r e s u p p l i e d t o t h e m o n 3 0 . 0 6 . 2 0 1 0 a n d t h e r e a f t e r the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
4. Vide order dated 14.09.2010 the Ld. Predecessor Court was pleased to frame charges under Sec. 147 IPC, 148 IPC, 308 IPC read with Sec. 149 IPC and Sec. 323 read with Sec. 149 IPC against all the five accused persons namely Rambir, Raj Singh @ Raju, Vijay Attri, Satender Goel & Sri Bhagwan, to which they FIR No. 137/2008, PS DBG Road, Page No. 4 of 51 State Vs. Rambir & Ors.
pleaded not guilty and claimed trial.
5. To prove its case, prosecution has examined 28 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
6. PW-1 SI Shiv Lal is the Duty Officer who proved copy of DD No. 4A and DD No. 8A as Ex. PW-1/A & Ex. PW-1/B. He also proved copy FIR No. 137/2008, Ex. PW-1/C and endorsement on rukka Ex. PW-1/D. In his cross-examination, he deposed that he received the computerized copy of the FIR after about 40 minutes. He denied the suggestion that he had not received the computerized copy of FIR after 40 minutes and he received the same on the next day in the morning.
7. PW-2 Sh. Piyush Gupta is the complainant as well as one of the injured in the present case. He deposed that on 28.04.2008, he was present at Ajmal Khan park, lawn no. 1 as he went there to attend reception party of his cousin Sh. Ashish Gupta. He further deposed that at about 01:30 am, in the intervening night of 28-29.04.2008 he received information from unknown person that some persons were trying to open their cars which were parked outside the tent. He further deposed that he along with Ashish went there to check their cars and found Mr. Raju and Mr. Vijay were standing near his car. He also deposed that he asked them why they were trying to temper their car and they told them that the car was parked on the way and they were just pushing to clear the road and they were not doing anything with their cars.
FIR No. 137/2008, PS DBG Road, Page No. 5 of 51He further deposed that both the accused persons started abusing them and there was grappling between the said two persons and him and in the said scuffle, his gold chain and his mobile either fell down or the same were snatched. He also deposed that in the meantime, they called some other persons who were armed with lathies and dandas and accused persons also picked dandas/lathies and started assaulting them. He also deposed that he sustained injury on his head while Ashish sustained injury on his shoulder and his real younger brother Ankur sustained injury on his head and his friend Rajesh and his brother-in-law (jija) also sustained injury on their head. He also deposed that accused Raju and Vijay had inflicted injury on his head by giving the blow of baseball bat and lathi. He also deposed that the members of accused group also inflicted injury to him and on the person of Ashish, Ankur, Rajesh and Ravinder Sindwani but he did not know the particulars of accused who inflicted injury to them. He further deposed that he called the police by dialing number 100 who removed them to the RML Hospital. He also deposed that they informed their family members as they were not getting satisfactory treatment at RML, their family members took them to Jeevan Mala Hospital. He also deposed that police recorded his statement, Ex. PW-2/A. He also proved his written statement, Ex. PW-2/B, given to the police, arrest memo of accused Satender Goel and Jai Bhagwan, exhibited as Ex. PW-2/C & Ex. PW-2/D respectively. This witness was cross-examined as length on behalf of accused persons. In his cross-examination he deposed that after 3-4 days of incident, police called him at PS FIR No. 137/2008, PS DBG Road, Page No. 6 of 51 State Vs. Rambir & Ors.
DBG Road and played marriage CD through which he identified the assailants. He also deposed that police had recorded his statement thrice. During cross-examination, this witness was confronted with his statement, Ex. PW-2/A on various points. He denied the suggestion that he had consumed liquor on the day of incident. He admitted the in his MLC prepared at RML Hospital, it is mentioned 'smell of alcohol'. He also denied the suggestion that he and other injured persons were under the influence of liquor and due to that reason they were unable to tell anything to the police/doctor and they were unable to identify the assailants. He also denied the suggestion that he was under the influence of liquor and was misbehaving with public, due to that reasons, public gave beatings to him and his relatives and since the function of accused Rambir was going on at lawn no. 2, he had mentioned his name and name of his known persons at the instance of police. He also deposed that police had not prepared any site plan in his presence and he had not stated the description of accused persons in his statement.
8. PW-3 Inspector Rajbir Sharma, deposed that on 02.06.2008 on instruction of ACP, he collected the file of this case from PS DBG Road, as the investigation of this case has been transferred to Crime Branch. He further deposed that he discussed the case with the complainant Sh. Piyush Gupta and searched for the accused Satender Goel but he could not be traced. In his cross-examination, he deposed that he did not collect any proof regarding the involvement of Satender Goel in FIR No. 137/2008, PS DBG Road, Page No. 7 of 51 State Vs. Rambir & Ors.
the present case. He also deposed that he got the photographs of assailants from PS DBG Road but he did not know who had given these as the photographs were already attached with file.
9. PW-4 Sh. Ashish Gupta is one of the injured in the present case. He deposed that on 28.04.2008 there was reception of his marriage in Lawn No. 1, Ajmal Khan Park. He further deposed that on 29.04.2008 at about 01:30 am, someone came to them and told that someone was tempering with their car which was parked outside Lawn No. 1. He also deposed that he along with his cousin Piyush Gupta reached there and saw that Raju and Vikram were standing near their car and beedings of the front door of the car was found removed and door wisors were also found tempered (this witness pointed out towards accused Vijay and saying that he was Vikram and pointed out towards accused Raj Singh and saying the he was Raju). He further deposed that when they asked accused persons as to why they were tempering their car and they told them that car had not been properly parked. He also deposed that on this point, hot words were exchanged between them and both persons started scuffling with him and Piyush Gupta. He also deposed that during the said grappling his gold chain and mobile of Piyush was misplaced and on asking the accused persons, they told them they would search the same. He also deposed thereafter the accused persons left the spot and they also came back to the Pandal at Lawn No. 1. He further deposed that after some time, both the accused persons along with some other persons reached the Pandal at Lawn No. 1 FIR No. 137/2008, PS DBG Road, Page No. 8 of 51 State Vs. Rambir & Ors.
carrying lathies, baseball sticks and they started assaulting them and their family members with the said baseball sticks and lathies. He also deposed that accused Jai Bhagwan gave a blow of lathi on his shoulder due to which it was dislocated, Piyush Gupta sustained head injury by accused Raju and Vijay and his Jija Ravinder Sindwani and his cousin also sustained head injury. He also deposed that police was informed at 100 number and thereafter police removed the injured persons to RML Hospital. He further deposed that he did not accompany the police as he drove the female members to the house. He also deposed that he went to Jeevan Mala Hospital for treatment and other injured persons were also got shifted from RML hospital to Jeevan Mala Hospital as they were not getting proper treatment there. In his cross-examination, he deposed that Rajiv Gupta was one of the guests and he is his elder brother. He denied the suggestion that numerous criminal cases were going on against Rajiv Gupta. He denied the suggestion that police was behind Rajiv Gupta or that when police reached Pandal to arrest Rajiv Gupta in the said case, the guests protest the arrest and in that process Rajiv Gupta succeeded in escape or that in that process they sustained injury. He also deposed that he identified accused persons from the CD of function of accused persons. This witness was confronted with his statement under Sec. 161 Cr.PC, Ex. PW-4/D1 on various points. He denied the suggestion that he identified accused Sri Bhagwan @ Jai Bhagwan, Satender Goel and Rambir at the instance of Addl. Public Prosecutor. He also denied the suggestion that his brother Rajiv Gupta was wanted by the Police FIR No. 137/2008, PS DBG Road, Page No. 9 of 51 State Vs. Rambir & Ors.
and when police reached there in plain clothes to arrest him, they protected him and made him to abscond and police assaulted them.
10. PW-5 Sh. Ankur Gupta is also one of the injured persons. He narrated the incident on the lines of PW-4 Sh. Ashish Gupta and proved the arrest memo of accused Satender Goel as Ex. PW-2/C. He also identified the injured persons through photographs Ex. PW-5/A-1 to Ex. PW-5/A-8. This witness was cross-examined at length on behalf of accused persons. In his cross-examination he deposed that he was not aware whether Rajiv was absconded offender and police was in his search. He also deposed that Rajeev was his first cousin who was also the son of his Tau. He denied the suggestion that he was deliberately not disclosing the relations with Rajiv or that he was not deliberately identifying him. He also deposed that accused persons assaulted them when they were running towards pandal and tried to save them. He also deposed that assailants were behind him and when assailants asked him to stop, he took turn, thereafter accused Satender Goel had given a blow of baseball bat on his head. He also deposed that bleeding started from his wound and blood had fallen on his clothes. He admitted that he had not handed over the blood stained clothes to police. This witness was confronted with his statement PW-5/D1 on various points. He also denied the suggestion that Rajiv was there and police had visited the pandal to arrest him as he was wanted in some case or that when they resisted the action of police, police FIR No. 137/2008, PS DBG Road, Page No. 10 of 51 State Vs. Rambir & Ors.
gave the danda blows and in the melee, they sustained injuries. He also denied the suggestion that accused Sri Bhagwan and Satender Goel had left the place much earlier then dispute took place.
11. PW-6 Sh. Rajesh is also one of the injured persons. He narrated about the incident on the lines of other injured persons and identified all the accused persons correctly during his examination-in-chief. He also deposed that accused Vijay was the person who gave blow of bat on his head from behind. In his cross-examination he admitted that without the permission of doctor, they left from the RML hospital and went to private hospital. He also stated that he did not state the description of assailants in his statement, Ex. PW-6/D1. He also admitted that he identified the assailants on computer in the police station and he did not identify accused persons in any Test Identification Parade. He denied the suggestion that he was under the influence of liquor on that day. He also denied the suggestion that when police came to the Pandal to apprehend a wanted criminal, stampede had taken place and at that time, he had fallen and sustained injuries. He also deposed that he had stated to the police in his statement that 15-20 persons of assailant party reached there and they were carrying baseball bat, cricket bat, balle etc. This witness was confronted with his statement Ex. PW-6/D1 and Ex. PW-6/D2.
12. PW-7 Sh. Suresh Sharma deposed that he was running a business of Videography and Photography at GF-20, H-Block FIR No. 137/2008, PS DBG Road, Page No. 11 of 51 State Vs. Rambir & Ors.
Market, Phase-I, Ashok Vihar on contract basis. He further deposed that on 28.04.2008 he sent his employee Rajesh Singh Rana, Narender Nagpal and Ravi for photography and videography to cover the marriage function of son of Rambir. He also deposed that the abovesaid photographers and videographers had handed over the CDs of the function to the police staff at his office. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
13. PW-8 Sh. Narender Nagpal deposed that on 28.04.2008, he was deputed by Sh. Suresh Sharma to cover the marriage function of son of Rambir and he had videographed the marriage function. He further deposed that on 01.05.2008, Sh. Suresh Sharma handed over two DVD of marriage function to the police which was seized vide seizure memo, Ex. PW-8/A. In his cross- examination, he deposed that I covered the function till 12:00/12:15 am, thereafter he alongwith other photographers came back.
14. PW-9 Sh. Rajesh Singh Rana deposed that Sh. Suresh Kumar had deputed him to cover the marriage function at Azmal Khan Park at either at lawn no. 1 or 2. He further deposed that after covering the function he handed over the CD of function to Suresh Kumar which was seized by the police vide seizure memo Ex. PW-9/A. In his cross-examination, he deposed that he covered the function till 12 midnight thereafter he and other photographers came back.
15. PW-10 Sh. Bobby, deposed that on 28th-29th, April 2008, FIR No. 137/2008, PS DBG Road, Page No. 12 of 51 State Vs. Rambir & Ors.
he had gone to Ajmal Khan Park, Karol Bagh in a TSR with catering articles where he found a mobile phone and he picked up the mobile phone and asked some persons about the phone but nobody claimed the mobile phone. He further deposed that he handed over the mobile phone to one Lalit Kumar, owner of the godown and told him that if anybody claims the mobile phone, he should hand over the same to that person. He further deposed that on 01.10.2008 he was called by the Police at Nehru Place and the police seized the mobile phone from Lalit. He further deposed that the make of mobile was Nokia but he did not know its model number. In his cross-examination he deposed that when he reached at the spot, 5-7 members of the marriage party were present and besides them, workers were also present. He also deposed that police officials were not there and nothing had happened in his presence.
16. PW-11 Sh. Dheeraj Gupta deposed that on 29.04.2008, he had installed tent and catering in lawn no. 1 at Ajmal Khan Park, Karol Bagh, Delhi and it was reception of marriage of Ashish. He further deposed that at about 01:00/01:30 am, he heard noise outside the tent and he came outside the tent and saw that five to six persons were beating a person who were managing the marriage party. He further deposed that they were carrying dandas in their hands and they were giving beatings on the heads and other parts of body of those persons. He further deposed that he came to know that the quarrel took place on the parking of car and assailants gave beatings to Ashish and his brother Piyush but FIR No. 137/2008, PS DBG Road, Page No. 13 of 51 State Vs. Rambir & Ors.
he did not know the names of other injured persons. He further deposed that he was again called by the Police at Nehru Place where he was shown the photographs of the assailants and he identified three assailants namely Rambir, Vijay and Raj Singh. He further deposed that he could not identify the two other assailants due to lapse of time. In his cross-examination he denied the suggestion that PW Piyush Gupta is his cousin. He also deposed that he did not know Ashish prior to the incident. He also deposed that he did not intervene in the quarrel. This witness was confronted with his statement, Ex. PW-11/D2, recorded under Sec. 161 Cr.PC.
17. PW-12 Sh. Jitender deposed that on 28-29.04.2008, he was working at a Pan stall of Sachin Thekedar in the side of the gate of Pandal and the marriage party was over. He further deposed that when he was closing his stall, somebody had given a bully blow on his head and he received injury. He further deposed that he could not identify the assailants and he felt giddiness and he was taken to the hospital in ambulance. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
18. PW-13 Sh. Ravi was the Videographer who deposed that on asking of Suresh Sharma he had done the videography at Ajmal Khan Park, Lawn No. 1 on 28.04.2008 & 29.04.2008 and on asking, he had given the said cassette to Sh. Suresh Sharma. In his cross-examination, he deposed that the programme was concluded at 11:40 pm and no incident had taken place in his FIR No. 137/2008, PS DBG Road, Page No. 14 of 51 State Vs. Rambir & Ors.
presence.
19. PW-14 Sh. Lalit Batra, deposed that on 30.04.2008, Bobby had given a mobile phone make Nokia to him and told that the said mobile was found to him at Ajmal Khan Road, Karol Bagh and told him that the same be given to its original owner. He further deposed that since none had come to inquire about the said mobile, he started using the mobile phone by putting his SIM. In his cross-examination he deposed that he used the said mobile phone for 3-4 days and he admitted that he did not deposit the said mobile phone in the police station of his own.
20. PW-15 Sh. Ravinder @ Ravi Sindwani, deposed that on the intervening night of 28-29.04.2008 at about 01:30 am, he was present in the marriage function of his brother-in-law Ashish Gupta at Azmal Khan Park, Lawn No. 1. He further deposed that at that time someone told him that quarrel had taken place outside the pandal accordingly he alongwith Ashish came out from pandal and saw quarrel was going on between Rajesh, Piyush, Anshu on the one hand and with unknown persons from lawn no. 2. He further deposed that after the scuffling, matter was pacified between both the groups. He further deposed that after 15-20 minutes, about 7-8 persons came from lawn no. 2 having dandas and balli and indiscriminately started assaulting them by dandas and ballis. He further deposed that he tried to pacify both the parties, thus, assailants started gave beatings to him also and he sustained multiple injuries on his head by the blows given by the assailants. During examination in the court, witness has FIR No. 137/2008, PS DBG Road, Page No. 15 of 51 State Vs. Rambir & Ors.
correctly identified the accused persons and proved the arrest memo of accused Satender Goel as Ex. PW-2/C. In his cross- examination, he deposed that on the day of incident, he consumed only two peg of liquor. He also deposed that Vishal, brother of Ashish was also present in the marriage function. He denied the suggestion that Vishal is involved in numerous cases and he is BC of the area. He also deposed that Vishal did not sustain injury as he had fled away. He also denied the suggestion that police came there to arrest Vishal as he was wanted in numerous cases or that at that time stampede had taken place and police opened lathi charge and at that time some persons sustained injuries. He also deposed that he did not hand over his blood stained clothes to police. He also deposed that police had shown all five accused persons to him but he identified one of them i.e. Satender. He also deposed that quarrel had taken place in which both the parties had participated and assaulted each other. He denied the suggestion that he sustained injury on his head as he fell down under the influence of liquor.
21. PW-16 Dr. Akram Javed, has proved the MLCs of injured Piyush Gupta as Ex. PW-16/A, injured Jitender as Ex. PW-16/B, injured Ravinder as Ex. PW-16/C and injured Rajesh as Ex. PW- 16/D prepared by him at RML Hospital. He also made endorsement at MLCs regarding absconding of patients namely Rajesh, Ravinder and Piyush Gupta. In his cross-examination he deposed that at the time of examination, patient Rajesh, Ravinder and Piyush Gupta found smelling of alcohol. He further deposed FIR No. 137/2008, PS DBG Road, Page No. 16 of 51 State Vs. Rambir & Ors.
that all the patients were oriented and conscious. He also deposed that since, patients absconded, he was not in position to give any opinion about the nature of injury sustained by them.
22. PW-17 Ct. Raj Kumar, deposed that on 10.05.2008, one Lalit Batra had produced one mobile phone having chocolate colour which was seized by SI Mahender vide seizure memo Ex. PW-17/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
23. PW-18 Ct. Ashish Kumar, deposed that on 29.04.2008, on receipt of DD No. 4A, he joined the investigation of present case along with ASI Karan Pal and reached to RML Hospital and collected the MLCs of injured persons. He further deposed that at about 07:05 am, ASI Karan Pal handed over rukka to him for registration of FIR accordingly he got registered the present FIR at PS and handed over copy of FIR and rukka to ASI Karan Pal. He further deposed that on 01.05.2008 he again joined the investigation of the present case with ASI Karan Pal and seized the video cassette and photo CD of marriage function from the shop of photographer Sh. Suresh Sharma vide seizure memo Ex. PW-9/A and Ex. PW-8/A. In his cross-examination, he deposed that no patients met them in RML hospital. He denied the suggestion that he did not visit the hospital. He also denied the suggestion that he did not visit the shop of Suresh or that nothing was given by Suresh Sharma in his presence.
24. PW-19 HC Kuldeep deposed that on 20.05.2008, he joined the investigation of present case with IO/SI Mahender. He proved FIR No. 137/2008, PS DBG Road, Page No. 17 of 51 State Vs. Rambir & Ors.
the arrest memo and personal search memo of accused Rambir as Ex. PW-19/A & Ex. PW-19/B. He also proved the arrest memo of accused Vijay Atri and Raj Singh as Ex. PW-19/C and Ex. PW- 19/C. He also proved their personal search memos as Ex. PW- 19/E & Ex. PW-19/F. He also proved disclosure statements of accused Rambir, Raj Singh and Vijay Atri as Ex. PW-19/G, Ex. PW-19/H and Ex. PW-19/I. In his cross-examination, he denied the suggestion that accused Rambir was not arrested in his presence nor his disclosure statement was recorded. He also denied the suggestion that he did not participate in the investigation nor accused Vijay Attri and Raj Singh visited the police post on 26.05.2008 or that no document as deposed by hin in his examination-in-chief had been prepared.
25. PW-20 Ct. Satpal deposed that on 11.07.2008 he joined the investigation in the present case along with IO. He deposed that on that day, IO called 10-12 persons in the office and the witnesses were also called in the office. He also deposed that witnesses Piyush Gupta, Ankur Gupta and Ravinder identified accused Satinder Goel out of those 10-12 person. He proved arrest memo, Ex. PW-2/C, personal search memo Ex. PW-20/A and disclosure statement, Ex. PW-20/B of accused Satinder Goel. During examination in the court, he could not identify accused Satinder Goel. This witness was cross-examined by Ld. Addl. PP for the State in which he admitted that he could not identify the accused Satinder Goel due to lapse of time. In his cross- examination he deposed that the 10-12 persons present in the FIR No. 137/2008, PS DBG Road, Page No. 18 of 51 State Vs. Rambir & Ors.
police station on 11.07.2008 were from public. He also deposed that no memo to the effect that any other person except for Satinder Goel was prepared. He also deposed that he did not know whether any arrival entry pertaining to the public persons was made in the DD register or not. He also did not remember whether any entry of showing his presence at police station at that time was made in the DD register or not. He also deposed that he was not knowing Piyush Gupta, Ankur Gupta and Ravinder previously. He also deposed that he knew that the identification of the accused cannot be held at Police Station. He also deposed that he did not raise any objection before the IO with regard to the aforesaid identification. He also deposed that he did not remember whether any other accused except Satinder Goel was present amongst the public persons present there. He denied the suggestion that he was not present nor any proceedings had taken place in his presence.
26. PW-21 Dr. Sudhir Kalhan, has proved the MLC of Sh. Piyush Gupta as Ex. PW-21/A on behalf of Dr. Madan Aggarwal and opined about nature of injury of Sh. Piyush Gupta as 'simple' caused by blunt object, vide opinion Ex. PW-21/B. In his cross- examination he deposed that he had given his opinion after 14 days i.e. 12.05.2008 after examining the record.
27. PW-22 ASI Chand Ram, is the MHC(M) of PS Crime Branch, who has proved the entry made by him at serial no. 200 in register no. 19 as Ex. PW-22/A regarding deposit of seven CDs by IO. In his cross-examination he admitted that CDs were not FIR No. 137/2008, PS DBG Road, Page No. 19 of 51 State Vs. Rambir & Ors.
under sealed cover.
28. PW-23 Retd. SI Karan Pal is the first IO of the case. He deposed that in the intervening night of 28-29.04.2008, on receiving DD No. 4A, Ex. PW-1/A regarding quarrel and injury at Ajmal Khan Park, he along with Ct. Ashish reached at the spot of incident where he came to know that injured were shifted to RML Hospital. He further deposed that he along with Ct. Ashish reached RML Hospital and collected the MLCs Ex. PW-16/A to Ex. PW-16/D of injured Piyush Gupta, Jitender, Ravinder and Rajesh but no injured person met them in the hospital as they had already left the hospital. He further deposed that he received information from Duty Officer that injured had been admitted in Jeevan Mala Hospital thereafter he reached Jeevan Mala Hospital injured were found admitted and he collected MLC of injury Piyush Gupta, Ex. PW-21/A, MLC of Ashish Gupta, Ex. PW- 23/A, MLC of Rajesh Kumar, Ex. PW-23/B and MLC of Ravinder, Ex. PW-23/C. He further deposed that he recorded statement of injured Piyush Gupta, Ex. PW-2/A and made endorsement, Ex. PW-23/D on the complaint and got the present FIR registered through Ct. Ashish. He further deposed that he recorded the statement of other injured persons and visited the persons who booked the lawn. He further deposed that he collected the CD of reception party and seized vide seizure memo Ex. PW-9/A and he also collected the video cassettes of reception party and seized vide seizure memo Ex. PW-23/F. He further deposed that he made duplicate copy of aforementioned FIR No. 137/2008, PS DBG Road, Page No. 20 of 51 State Vs. Rambir & Ors.
CD and video cassettes and some photographs were also got developed. He further deposed that he prepared site plan, Ex. PW-23/F at instance of complainant and complainant was called at PS and the said CD was played and shown to him in which complainant had identified the accused persons. He further deposed that the photographs of identified persons were got developed and he tried to trace the accused persons but they could not be traced. He also deposed that on instruction of SHO, further investigation of this case was entrusted to SI Mahinder Singh. In his cross-examination he admitted that on the MLCs of injured persons, smell of alcohol positive was mentioned. He also deposed that till the time, he had received the video or the cassettes of the function, nobody from the injured or otherwise had disclosed about the huliya or any description of any of the assaulter. He also deposed that he had already inquired the injured persons that if they can disclose the description of any of the accused but they showed their inability till the time they saw the video of the photographs. He also deposed that at the time when video was played, the injured persons pointed out the accused from the photograph/video. He also deposed that he did not seal the cassettes and brought them in the police station without sealing them. He also deposed that he did not obtain any certificate under Sec. 65B of The Evidence Act from the person who produced the CDs. He denied the suggestion that since the accused persons had applied for their anticipatory bail and they got the anticipatory bail and he got them identify from the witnesses in order to falsely implicate in this case.
FIR No. 137/2008, PS DBG Road, Page No. 21 of 5129. PW-24 Inspector Maninder Singh, is second IO of the present case. He deposed that on 05.04.2018 after entrustment of further investigation of this case, he searched accused persons and mobile phone in question. He further deposed that during search, it was revealed that said mobile phone was being used by one Lalit Batra. He further deposed that he met Lalit Batra who disclosed that he found the said mobile phone from TSR and he had searched the owner of the same but since the owner was not found, therefore he was using the said mobile. He further deposed that he seized the mobile phone make Nokia vide seizure memo Ex. PW-17/A. He further deposed that during investigation, he formally arrested accused Rambir, Raj Singh and Vijay vide arrest memos Ex. PW-19/A, Ex. PW-19/C & Ex. PW-19/D, conducted their personal search vide memo Ex. PW- 19/B, Ex. PW-19/F & Ex. PW-19/E and recorded their disclosure statements vide memos Ex. PW-19/G, Ex. PW-19/H and Ex. PW- 19/I and thereafter further investigation of this case was transferred from him. In his cross-examination he admitted that the receipt of mobile phone, Mark-24/A did not show the name of purchaser nor its mentioned about the address or any identification of the purchaser. He denied the suggestion that he had only followed the previous IO and had not done any investigation in this case.
30. PW-25 Sh. Vishal Gupta deposed that he got released the mobile phone make nokia on superdari. He proved application for supardari, Ex. PW-25/A and copy of order of court dated FIR No. 137/2008, PS DBG Road, Page No. 22 of 51 State Vs. Rambir & Ors.
16.06.2008, Ex. PW-25/B. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
31. PW-26 Inspector Davinder Kumar, deposed that on 02.06.2009 he was posted as Sub-Inspector at AATS, Crime Branch, Nehru Place and on that day further investigation of this case was entrusted to him. He further deposed that he got verified parcha-12 of accused persons, prepared charge-sheet an handed over the same to SHO for filing the same in the court. This witness was also not cross-examined on behalf of accused persons despite opportunity given to them.
32. PW-27 HC Satyaveer is the MHC(M) who proved the entries made him in register no. 19 exhibit as Ex. PW-27/A and Ex. PW-27/B, regarding deposit of case properties by IO. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
33. PW-28 SI Dheeraj is the MHC(M) at PS Crime Branch. He proved copy of entry no. 200 in register no. 19, Ex. PW-28/A regarding deposit of 7 CDs by SI Virender Prakash by then MHC(M). In his cross-examination, he deposed that this entry was never made in his presence nor he had any personal knowledge on the same. He further deposed that he had no knowledge if any other document was deposited along with it or not.
34. After closing of Prosecution Evidence, separate statements of all five accused persons were recorded under Sec. 313 Cr.PC, FIR No. 137/2008, PS DBG Road, Page No. 23 of 51 State Vs. Rambir & Ors.
wherein they denied all the charges against them. They claimed themselves to be innocent and stated that they have been falsely implicated in this case by IO. Accused Satender Goel claimed that he had attended a function of reception party of the son of his friend but due to some urgency, he had left the spot by 11:30 pm and nothing had happened till that time. Accused Sri Bhagwan claimed that he had attended a function of reception party of son of his cousin and had left the spot by 12:30 am when the function had finished and nothing had happened in his presence. Accused Rambir claimed that IO has falsely implicated him in this case as he had obtained anticipatory bail. He also claimed that the function/reception party of his son had finished by 12:30 am and thereafter they all had left the spot and nothing had happened in their presence. Accused Vijay Attri claimed that he is innocent and IO had falsely implicated him in this case. Accused Raj Singh @ Raju claimed that he is innocent and IO had falsely implicated him in this case. Accused persons did not lead any evidence in their defence.
35. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. S. C. Buttan, Ld. Counsel for accused Rambir, Satender Goel and Shri Bhagwan and Sh. Chander M. Maini, Ld. Counsel for accused Raj Singh and Vijay Attri.
36. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have FIR No. 137/2008, PS DBG Road, Page No. 24 of 51 State Vs. Rambir & Ors.
corroborated each other's version. To substantiate his submissions, he argued that PW-2 complainant/injured Piyush Gupta and other injured persons i.e. PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani have completely supported the case of prosecution and they have identified the accused persons in the court. He further argued that the identification of accused persons by the complainant and other injured persons through Video clip of the function is proper identification. He further argued that injuries on the persons of PW-2 complainant/injured Sh. Piyush Gupta and other injured persons i.e. PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani have been duly proved by the prosecution. He also argued that PW-23/IO SI Karan Pal, PW-24 Inspector Maninder Singh and other police witnesses have duly proved the proceedings conducted during the investigation. He also argued that all the prosecution witnesses are of the sterling quality and hence all the five accused persons should be convicted under all the Sections of law under which charges have been framed against them.
37. Per contra, Ld. counsels for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They further argued that the complainant and injured persons had not mentioned the description of accused FIR No. 137/2008, PS DBG Road, Page No. 25 of 51 State Vs. Rambir & Ors.
persons and the accused persons have been identified on the basis of the video clips of the function and the said procedure is not proper. They further argued that all the injured persons were under the influence of alcohol and the alleged incident took place in a short span and hence they were not in a position to identify the real assailants. They also argued that the testimony of PW-2 complainant/injured Sh. Piyush Gupta and other injured persons i.e. PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani suffers from material contradictions and hence they cannot be relied upon. They further argued that PW-2 complainant/injured Sh. Piyush Gupta and other injured persons i.e. PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani have improved their versions during their examination in the court. They also argued that the blood stained clothes of injured persons were not seized by the IO. They also argued that the alleged car has not been seized by the IO. They also argued that the weapon of offence have also not been recovered from possession of accused persons. They also argued that since the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, all the five accused persons should be acquitted under all the sections of law under which charges have been framed against them.
38. In the present case, charges under Sec. 147/148 IPC, 308/149 IPC, 323/149 IPC have been framed against the accused persons. These Sections have been elaborated as under:-
FIR No. 137/2008, PS DBG Road, Page No. 26 of 51State Vs. Rambir & Ors.
147. Punishment for rioting:-
Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon:-
Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object:-
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
323. Punishment for voluntarily causing hurt:-
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he FIR No. 137/2008, PS DBG Road, Page No. 27 of 51 State Vs. Rambir & Ors.
would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
39. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
40. PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-12 Sh. Jitender and PW- 15 Sh. Ravinder @ Ravi Sindhwani are the injured as well as eyewitnesses of the alleged incident. PW-11 Sh. Dheeraj Gupta is also the eyewitness of the alleged incident. All these witnesses have narrated about the alleged incident and their testimonies are to be appreciated as per the established principles of law.
41. PW-2 Sh. Piyush Gupta is the complainant in the present case. The present FIR has been registered on his complaint, Ex. PW-2/A. PW-2 Sh. Piyush Gupta in his complaint, Ex. PW-2/A given to the police stated that 3-4 persons attacked upon him and his friends/relatives. However, the charges in the present case against all the accused persons have been framed under Sec. 147/148 & 149 IPC for which minimum five persons are FIR No. 137/2008, PS DBG Road, Page No. 28 of 51 State Vs. Rambir & Ors.
required. PW-2 Sh. Piyush Gupta and other injured persons later on stated to the IO that several persons ranging from 3-4 to 20-25 persons attacked them. Since complaint, Ex. PW-2/A was given by complainant/injured/PW-2 Sh. Piyush Gupta just after the incident, in which he had stated that 3-4 persons had attacked them, the change of version in statements under Sec. 161 Cr.PC and before the court raises serious doubts on his veracity.
42. Different witnesses have given different number of persons involved in the commission of offence. PW-2 Sh. Piyush Gupta in his complaint, Ex. PW-2/A on the basis of which present FIR was registered stated that 3-4 persons attacked them and in his statement recorded in the court on oath, he stated that 20-25 persons were involved in the incident. Similarly, PW-4 Sh. Ashish Gupta deposed that there were 20-25 assailants. PW-5 Sh. Ankur Gupta has not given the number of persons involved in the incident. PW-6 Sh. Rajesh deposed that 15-20 persons were involved in the incident. PW-11 Sh. Neeraj Gupta who is the eyewitness of alleged incident deposed that 5-6 persons were involved in the incident while PW-15 Sh. Ravinder @ Ravi Sindhwani deposed that 7-8 persons were involved in the incident. Total five accused persons are facing trial before this court. Since the different witnesses have given different number of persons involved in the commission of offence and if 20 to 25 persons were involved in the commision of offence why they were not traced and prosecuted by the Investigating Agency. Thus, in these circumstances serious doubts have been created on FIR No. 137/2008, PS DBG Road, Page No. 29 of 51 State Vs. Rambir & Ors.
the veracity of abovesaid witnesses as well as on the prosecution story.
43. PW-2 Sh. Piyush Gupta who is complainant in the present case deposed that the incident took place in the parking area where his car was parked. He has not deposed about the alleged second incident which took place inside lawn no. 1. In his complaint, Ex. PW-2/A as well as in his testimony recorded before the court, he has stated about only one spot of incident i.e. the parking area outside the lawn and in his cross-examination, he has specifically deposed that the incident had taken place between lawn no. 1 and 2 but the same had not occured inside lawn no. 1. However, PW-4 Sh. Ashish Gupta deposed that the first incident took place outside lawn no. 1 and thereafter they returned to lawn no. 1 and after sometime both accused persons along with other persons reached Pandal at lawn no. 1 and started assaulting them and their family members with baseball bat, sticks and lathies. PW-5 Sh. Ankur Gupta has also deposed about only one spot of incident i.e. the parking area outside the lawn. He specifically deposed that they all remained there (i.e. at the spot where the first incident took place) and after about ten minutes number of persons came there who were carrying bat, balliya, baseball bat etc. PW-6 Sh. Rajesh has deposed about two spot of incident i.e. parking area outside the lawn and inside the lawn. PW-11 Sh. Dheeraj Gupta has deposed only one spot of incident i.e. outside the lawn/tent. PW-15 Sh. Ravinder @ Ravi Sidhwani has deposed about two spots of incident i.e. parking FIR No. 137/2008, PS DBG Road, Page No. 30 of 51 State Vs. Rambir & Ors.
outside lawn and inside the lawn. Thus, there are material contradictions with respect to the spots of incident amongst the eyewitnesses/injured persons. In these circumstances, their testimonies with respect to the spots of incidents cannot be relied upon as there is no consistency in their versions.
44. PW-2/complainant Sh. Piyush Gupta deposed that he along with PW-4 Sh. Ashish Gupta came to know that some persons were trying to open their car parked outside the tent and they went there. PW-4 Sh. Ashish Gupta has also deposed on the same lines. However, contrary to versions of PW-2 Sh. Piyush Gupta and PW-4 Sh. Ashish Gupta, PW-6 Sh. Rajesh deposed that 3-4 persons were exchanging hot words with his friend Piyush i.e. PW-2 and scuffle took place between them. Thus, as per the version of PW-6 Sh. Rajesh, the first incident took place only between PW-2 Sh. Piyush Gupta on one side and 3-4 persons on the other side. Similarly, PW-15 Sh. Ravinder @ Ravi Sidhwani has also given contrary version to the versions of PW- 2 Sh. Piyush Gupta and PW-4 Sh. Ashish Gupta. He deposed that there was crowd outside the Pandal and someone told him that quarrel had taken place outside the Pandal and accordingly he came outside and Ashish also came outside. He further deposed that he saw quarrel was going on between Rajesh, Piyush and Anshu on one hand with some unknown person. Thus, as per the version of PW-15 Sh. Ravinder @ Ravi Sindhwani also, PW-4 Sh. Ashish Gupta was not involved in the first incident i.e. the scuffle which took place in the parking area outside the lawn and FIR No. 137/2008, PS DBG Road, Page No. 31 of 51 State Vs. Rambir & Ors.
he came there later on. Thus, as per the version of PW-15 Sh. Ravinder @ Ravi Sindhwani, PW-6 Sh. Rajesh was also involved in the first incident i.e. the scuffle in the parking area outside the lawn but PW-6 has not deposed so. Rather PW-6 Sh. Rajesh deposed that after 15-20 minutes of the previous incident, when he was taking dinner, 15-20 persons of assailant party reached there and started beating them. No other injured/eyewitness except PW-15 Sh. Ravinder @ Ravi Sidhwani have deposed about the involvement of one Anshu in the scuffle. No person with the name of Anshu has been examined as PW by the prosecution. Thus, the different eyewitnesses/injured persons have given different version with respect to the fact as who came outside the lawn firstly and who had scuffle with the accused persons. This raises serious doubts on the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani as well as on the prosecution story.
45. As per the prosecution story, the call was made at 100 number after the incident and police reached there after the incideent was over. However, PW-2 Sh. Piyush Gupta deposed that when the police reached there assaulting was continuing upon them. Similarly, PW-5 Sh. Ankur Gupta in his cross- examination deposed that police had rescued them and all the accused persons were present at that time. PW-4 Sh. Ashish Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta and PW-15 Sh. Ravinder @ Ravi Sidhwani have not deposed that the FIR No. 137/2008, PS DBG Road, Page No. 32 of 51 State Vs. Rambir & Ors.
assaulting was going on when the police reached there or that the police rescued them or that the accused persons were present at the spot of incident when the Police reached there. Thus, there are material contradictions in the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta and PW-15 Sh. Ravinder @ Ravi Sidhwani. Moreover, PW-23 1st IO/SI Karan Pal and PW-18 Ct. Ashish Kumar have deposed that when they reached at the spot of incident i.e. Ajmal Khan Park, they came to know that injured had already been taken to RML Hospital. Thus, neither PW-23 SI Karan Pal nor PW-18 Ct. Ashish Kumar met the injured persons at the spot of incident. In these circumstances, the versions of PW-2 Sh. Piyush Gupta and PW-5 Sh. Ankur Gupta which are contrary to versions of PW-4 Sh. Ashish Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta, PW-15 Sh. Ravinder @ Ravi Sidhwani, PW-18 Ct. Ashish Kumar and PW- 23 SI Karan Pal cannot be relied upon.
46. PW-2 Sh. Piyush Gupta in his complaint, Ex. PW-2/A given to the police stated that they were attacked with lathies and dandas. PW-2 Sh. Piyush Gupta in the court deposed that the accused persons picked up dandas and lathies from the tent and started assaulting them. However, he improved his version and deposed that accused Raju and Vijay had inflicted injuries on his head by giving the blow of baseball bat and lathi. He further deposed that accused Raju was carrying baseball bat while accused Vijay was carrying lathi. PW-4 Sh. Ashish Gupta FIR No. 137/2008, PS DBG Road, Page No. 33 of 51 State Vs. Rambir & Ors.
deposed that accused persons started assaulting them and their family members with baseball sticks and lathies. However, PW-4 Sh. Ashish Gupta also improved his version and deposed that accused persons also assaulted them with bricks which were lying there. PW-2 Sh. Piyush Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta and PW-15 Sh. Ravinder @ Ravi Sidhwani have not deposed that they were attacked with bricks. PW-23 IO/SI Karan Pal has not deposed that he found any bricks, lathies, dandas and baseball bats at the spot of incident. During the investigation, the alleged weapons i.e. lathies, dandas, baseball bats and bricks were not seized by the IO. This has weakened the case of prosecution.
47. PW-2 Sh. Piyush Gupta deposed that he came to know that some persons were trying to open his car parked outside the tent and thereafter he along with PW-4 Sh. Ashish Gupta went there. PW-4 Sh. Ashish Gupta has also deposed on the same line. PW-2 Sh. Piyush Gupta in his cross-examination deposed that his car was damaged and certain dents were also caused in the car. He further deposed that he has stated the said fact in his complaint, Ex. PW-2/A given to the police. However, in his complaint, Ex. PW-2/A, PW-2 Sh. Piyush Gupta has not stated that his car was damaged or there were dents on his car and he was confronted with his statement, Ex. PW-2/A on this point. PW-4 Sh. Ashish Gupta deposed that they noticed that the beedings of the front door of the car was found removed and door wisors were also found tempered. Thus, there is FIR No. 137/2008, PS DBG Road, Page No. 34 of 51 State Vs. Rambir & Ors.
contradictions in the testimony of PW-2 Sh. Piyush Gupta and PW-4 Sh. Ashish Gupta regarding the type of damage to the car. PW-23 IO/SI Karan Pal and PW-18 Ct. Ashish Kumar have not deposed that they found the car at the spot in a damage condition or that the removed beedings were lying at the spot. The IO has not seized the alleged car nor he has taken the photographs of the same to prove the motive behind the commission of offence. This raises serious doubts on the veracity of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta as well as on the prosecution story.
48. PW-2 Sh. Piyush Gupta deposed that there was grappling between two persons (i.e. accused Raju and Vijay) and him and Ashish and in the said scuffle, his gold chain and mobile phone either fell down or the same was snatched. It is pertinent to mention that PW-2 Sh. Piyush Gupta in his complaint, Ex. PW- 2/A has not stated that his gold chain either fell down or same was snatched. PW-4 Sh. Ashish Gupta has given a different version. He deposed that during the said grappling his gold chain and mobile phone of Piyush was misplaced. PW-5 Sh. Ankur Gupta has also given different version. He deposed that during the quarrel his gold chain and mobile phone of Piyush were misplaced. PW-6 Sh. Rajesh has also given a different version. He deposed that in the scuffle, gold chain of Piyush was misplaced. Thus, as per complaint, Ex. PW-2/A, no gold chain was misplaced but as per version of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta and PW-5 Ankur Gupta their separate gold chains were misplaced. No proof of alleged gold chains has FIR No. 137/2008, PS DBG Road, Page No. 35 of 51 State Vs. Rambir & Ors.
been placed on record by the IO. Moreover, the alleged mobile phone was not recovered from possession of accused persons and same was recovered from possession of PW-14 Sh. Lalit Batra and same belonged to PW-25 Sh. Vishal Gupta who took the same on supardari from court vide his application Ex. PW-25/A, has not deposed that he had given his mobile phone to PW-2 Sh. Piyush Gupta. In these circumstances, the testimony of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta and PW-5 Ankur Gupta cannot be relied upon and serious doubts have been created on their veracity.
49. PW-2 Sh. Piyush Gupta deposed that accused Raju and Vijay started quarelling with them and there was grappling between the abovesaid two persons and between him and Ashish. He further deposed that at that time accused Rambir, Satender Goel and Jai Bhagwan (Shri Bhagwan) were also present there. He has not assigned any role to accused Rambir, Satender Goel and Jai Bhagwan (Shri Bhagwan) with respect to the first incident till the missing of mobile phone and gold chain. PW-4 Sh. Ashish Gupta has also deposed on the same lines. However, PW-5 Sh. Ankur Gupta has given a different version. PW-5 Sh. Ankur Gupta deposed that when he reached there he saw that accused persons namely Vijay, Raj Singh, Shri Bhagwan and Rambir were scuffling with Piyush and Ashish. Thus, there are material contradictions in testimony of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta and PW-5 Sh. Ankur Gupta with respect to the same set of facts and hence doubts have been created on FIR No. 137/2008, PS DBG Road, Page No. 36 of 51 State Vs. Rambir & Ors.
their veracity.
50. PW-5 Sh. Ankur Gupta deposed that accused persons were also saying that 'do not spare their female and children'. Other injured and eye witnesses i.e. PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta, PW- 12 Sh. Jitender and PW-15 Sh. Ravinder @ Ravi Sindhwani have not deposed that the accused persons had said that 'do not spare their female and children'. No female and children were injured in the alleged incident nor any evidence in this regard has been brought on record. This raises serious doubts on the veracity of PW-5 Sh. Ankur Gupta.
51. PW-11 Sh. Dheeraj Gupta is the eyewitness of the incident. He deposed that at about 01:00/01:30 am he heard noise outside the tent and thereafter he came outside the tent and saw that 5 to 6 persons were beating the persons who were managing the party and he came to know that quarrel took place on the parking of car and assailants gave beatings to Ashish and his brother Piyush but he did not know the name of other injured persons. This witness only identified accused Rambir, Vijay and Raj Singh but he failed to identify accused Satender Goel and Shri Bhagwan. He has not explained the incident in detail and one portion of his testimony is hearsay in nature.
52. As per prosecution story, injured persons namely PW-2 Sh. Piyush Gupta, PW-6 Sh. Rajesh, PW-12 Sh. Jitender and PW- 15 Sh. Ravinder @ Ravi Sindhwani were taken to the hospital by FIR No. 137/2008, PS DBG Road, Page No. 37 of 51 State Vs. Rambir & Ors.
Sh. Rakesh Wadhwa. Sh. Rakesh Wadhwa who could have been an independent eyewitness of the incident has not been examined as PW in the present case.
53. PW-2 Sh. Piyush Gupta deposed that when he along with PW-4 Sh. Ashish Gupta reached at the spot of incident i.e. in the parking area outside the lawn, accused persons namely Rambir, Satender Goel and Shri Bhagwan were present there. However, PW-4 Sh. Ashish Gupta deposed that at that time only two accused persons namely Raju (Raj Singh) and Vikram (Vijay) were present. However, PW-5 Sh. Ankur Gupta who allegedly reached the spot of incident when the scuffle was going on deposed that accused Satender Goel came in Honda City car which means that he was not present at the spot of incident. Thus, there are material contradictions in testimony of PW-2 Sh. Piyush Gupta and PW-4 Sh. Ashish Gupta on one hand and testimony of PW-5 Sh. Ankur Gupta on the other hand with respect to the same set of facts. This has created serious doubts on the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta and PW-5 Sh. Ankur Gupta.
54. PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta and PW- 5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta and PW-15 Sh. Ravinder @ Ravi Sidhwani have deposed that the quarrel had been taken place between the injured persons and accused persons. PW-4 Sh. Ashish Gupta in his cross- examination deposed that bleeding started from the wound of injured Ankur Gupta, Ravinder Sindhwani and Rajesh and same FIR No. 137/2008, PS DBG Road, Page No. 38 of 51 State Vs. Rambir & Ors.
fell on their clothes as well as on the ground. The IO has not lifted the earth control nor he has seized the blood stained clothes of injured persons. Moreover no blood was found on the clothes of accused persons. No injury was found on the body of accused persons which might have caused to them during the abovesaid scuffle. This raises serious doubts on prosecution story.
55. PW-2 Sh. Piyush Gupta in his cross-examination deposed that he was not under the influence of liquor on the date of incident. PW-15 Sh. Ravinder @ Ravi Sindhwani has admitted that he had consumed liquor on the date of incident. PW-16 Dr. Akram Javed has proved the MLC of PW-2 Sh. Piyush Gupta, Ex. PW-16/A, MLC of PW-12 Jitender, Ex. PW-16/B, MLC of PW-15 Sh. Ravinder @ Ravi Sindhwani, Ex. PW-16/C and MLC of PW-6 Sh. Rajesh, Ex. PW-16/D. In his cross-examination, PW-16 Dr. Akram Javed deposed that patient Rajesh (PW-6), Ravinder (PW-15) & Piyush Gupta (PW-2) were found smelling alcohol. Thus, through the testimony of PW-16 Dr. Akram Javed, it has been brought on record that PW-2 Sh. Piyush Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani were under the influence of liquor and a doubt has been created as to who was the aggressor in the present case. Moreover, under the influence of liquor, it may not be possible to identify the accused persons at night time. This fact has weakened the prosecution story.
56. In the present case, accused persons were not apprehended at the spot. The names of accused persons has also not been FIR No. 137/2008, PS DBG Road, Page No. 39 of 51 State Vs. Rambir & Ors.
mentioned in the FIR. As per the prosecution story, the injured persons were shown the video footage of the marriage function of son of accused Rambir by the IO and on the basis of same, the accused persons were identified by the complainant and other injured persons. It has been argued on behalf of accused persons that the identity of accused persons has not been established by the prosecution as per established principles of law.
57. PW-2 Sh. Piyush Gupta in his examination-in-chief deposed that he identified all the accused persons from the visuals of the CD. However, in his cross-examination, he deposed that he noticed accused Rambir, Satender Goel and Jai Bhagwan (Shri Bhagwan) in the CD and on 11.07.2008 he identified accused persons namely Satender Goel and Jai Bhagwan (Shri Bhagwan) at AATS Office, Nehru Place and on that day, they were arrested vide arrest memo Ex. PW-2/C and Ex. PW-2/D. He further deposed that on 22.07.2008 he identified accused Jai Bhagwan (Shri Bhagwan) at AATS office who was arrested vide arrest memo Ex. PW-2/D. However, in his cross- examination he deposed that he identified accused Satender Goel and Jai Bhagwan (Shri Bhagwan) at AATS office on 17.05.2008. As per the arrest memo of accused Satender Goel, he was arrested on 11.07.2008 vide arrest memo Ex. PW-2/C and as per arrest memo of accused Shri Bhagwan, he was arrested on 22.07.2008 vide arrest memo Ex. PW-2/D. PW-2 Sh. Piyush Gupta has not explained as to when and how he identified accused Raj Singh and Vijay Attri. If as per the testimony of PW-
FIR No. 137/2008, PS DBG Road, Page No. 40 of 512 Sh. Piyush Gupta, he identified accused persons namely Satender Goel and Shri Bhagwan on 11.07.2008 and they were arrested on that very day, how accused Shri Bhagwan was again arrested on 22.07.2008. Moreover, in his cross-examination, he has deposed that accused persons namely Satender Goel and Jai Bhagwan (Shri Bhagwan) on 17.05.2008 which is factually wrong. Similarly PW-15 Sh. Ravinder @ Ravi Sindhwani also deposed that on 10.07.2008, he was called at Nehru Police Office where he identified accused Satender and one more accused and at that time Ashish, Piyush and Rajesh also accompanied him but he did not recollect as to what document was prepared by the Police at that time. As per the prosecution story, none of the abovesaid witnesses joined the investigation on 10.07.2008 to identify any of the accused persons. Surprisingly, PW-23 IO/SI Karan Pal deposed that on the basis of photographs, name of accused persons were disclosed as Rambir and others and however he did not remember the name of others who had been identified. Thus, even the Investigating Officer was not aware as to who were got identified by him. This raises serious doubts on the veracity of PW-2 Sh. Piyush Gupta and PW-15 Sh. Ravinder @ Ravi Sindhwani as well as the manner of investigation conducted by IO/PW-23 SI Karan Pal.
58. PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani have also deposed on the lines of PW-2 Sh. Piyush Gupta that they identified the accused persons on the basis of video CD played FIR No. 137/2008, PS DBG Road, Page No. 41 of 51 State Vs. Rambir & Ors.
by the Police. PW-20 Ct. Satpal has deposed that IO called 10-12 persons in the office and witnesses namely Piyush Gupta, Ankur Gupta and Ravinder identified Satender Goel out of 10-12 persons. Thus, the IO conducted the TIP proceedings at his office. This procedure is unknown to law and serious doubts have been created on the manner in which investigation has been conducted by the IO with respect to the identification of accused persons.
59. PW-2 Sh. Piyush Gupta in his cross-examination deposed that the police had shown the photographs of Rambir, Satender Goel, Shri Bhagwan, Raju and Vijay in PS DBG Road. PW-4 Sh. Ashish Gupta in his cross-examination deposed that he identified the accused persons only after seeing the CD and he had not disclosed the description of accused persons in his statement. Similarly, PW-6 Sh. Rajesh in his cross-examination also admitted that he had not disclosed the description of accused persons to the IO. Similarly, PW-23 IO/SI Karan Pal deposed that he had already inquired from the injured persons that they can disclose the description of any of the accused but they showed their inability till the time they saw the video or the photographs. Thus, it is clear that injured/eyewitnesses i.e. PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani had not given any description of the accused persons nor they were in a position to give their description as per the testimony of IO/PW- 23 SI Karan Pal.
FIR No. 137/2008, PS DBG Road, Page No. 42 of 5160. Hon'ble Supreme Court of India in judgment titled as 'D. Gopalakrishnan Vs. Sadanand Naik & Ors, cited as AIR 2004 SC 4965' observed as under:-
" There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show the photographs to confirm whether the investigation is going on in the right direction.
But in the instance case, it appears that the Investigating Officer procured the album containing the photographs with the names written underneath and showed this album to the eyewitnesses and recorded their statements under Sec. 161 Cr.PC. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of investigation, if the witness have given the identifying features of assailants, the same could be confirmed by the Investigating Officer by showing the photographs of the suspect and the Investigating Officer shall not first show a single photographs but should show more that one photographs of the same person, if FIR No. 137/2008, PS DBG Road, Page No. 43 of 51 State Vs. Rambir & Ors.
available. If the suspect is available for identification or for video identification, the photographs shall never be show to the witness in advance."
61. In the present case also the injured persons have not given any description of any of the accused and they were directly shown the video footage and the photographs of accused persons and hence as per the law laid down by the Hon'ble Supreme Court of India in 'D. Gopalakrishnan (Supra)' the identity of accused persons has not been established through a proper procedure which is fatal to the prosecution case. Similarly, Hon'ble Supreme Court of India in judgment titled as 'Ravi @ Ravichandran Vs. State represented by Inspector of Police, cited as 2007 (2) JCC 1458', has held that the Test Indentification Prade of unknown person in an FIR is held for the purpose of testing the veracity of witness in regard to his capability of identifying person who were unknown to him and further held that the photographs of accused persons were shown to the witnesses and hence the purported TIP held after ten days loose all significance in the fact situation.
62. In the present case, the video footage and photographs of all accused persons were shown to the prosecution witnesses/injured persons and two accused persons namely Satender Goel and Shri Bhagwan were got identified in the Police Station from among 10-12 persons. Thus, the IO FIR No. 137/2008, PS DBG Road, Page No. 44 of 51 State Vs. Rambir & Ors.
conducted the TIP of accused persons in the Police Station itself without the supervision of Judicial Magistrate. This procedure is unknown to law and hence the identification of accused persons cannot be said to have been properly established by the prosecution through proper and legal procedure. Applying the law laid down by Hon'ble Supreme Court of India in judgment titled as 'Ravi @ Ravichandran (Supra)' this court is of considered opinion that the identity of accused person in the present case has not been established through proper legal procedure and same is fatal to the case of prosecution.
63. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
64. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court FIR No. 137/2008, PS DBG Road, Page No. 45 of 51 State Vs. Rambir & Ors.
considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the FIR No. 137/2008, PS DBG Road, Page No. 46 of 51 State Vs. Rambir & Ors.
expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
65. Similarly, in case of Ramdas Vs. State of Maharashtra, FIR No. 137/2008, PS DBG Road, Page No. 47 of 51 State Vs. Rambir & Ors.
(2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
66. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
67. Due to material contradictions in the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta & PW-15 Sh. Ravinder @ Ravi Sindhwani serious doubts have been created upon the prosecution story. The versions of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta & PW-15 Sh. Ravinder @ Ravi Sindhwani are not natural one and casts a shadow of doubt on their veracity. The things appears to have not happened in the FIR No. 137/2008, PS DBG Road, Page No. 48 of 51 State Vs. Rambir & Ors.
manner these have been projected. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta & PW-15 Sh. Ravinder @ Ravi Sindhwani are not clear, cogent, credible and trustworthy and same is not corroborated by other material evidence. The testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta & PW-15 Sh. Ravinder @ Ravi Sindhwani in the present case cannot be said to be of sterling quality to secure the conviction of the accused.
68. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
69. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of FIR No. 137/2008, PS DBG Road, Page No. 49 of 51 State Vs. Rambir & Ors.
certainty that the appellants were the real culprits."
70. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
71. In the present case, due to the material contradictions in the testimonies of PW-2 Sh. Piyush Gupta, PW-4 Sh. Ashish FIR No. 137/2008, PS DBG Road, Page No. 50 of 51 State Vs. Rambir & Ors.
Gupta, PW-5 Sh. Ankur Gupta, PW-6 Sh. Rajesh, PW-11 Sh. Dheeraj Gupta & PW-15 Sh. Ravinder @ Ravi Sindhwani, non- seizure of the alleged car and weapons of offence, non-seizure of blood-stained clothes of injured persons and earth control, being under the influence of alcohol of PW-2 Sh. Piyush Gupta, PW-6 Rajesh and PW-15 Sh. Ravinder @ Ravi Sindhwani, identification of accused persons through video footage and photographs and not conducting TIP proceedings coupled with the fact that no description of accused persons was given by any of the injured persons, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
72. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable under Section 147/148 IPC, 308/149 IPC, 323/149 IPC against all the five accused persons beyond reasonable doubt.
73. Accordingly in view of the aforesaid discussion, accused persons namely Rambir, Raj Singh @ Raju, Vijay Attri, Satender Goel and Sri Bhagwan are hereby acquitted for offence punishable under Section 147/148 IPC, 308/149 IPC, 323/149 IPC.
Digitally signed VIRENDER by VIRENDER KUMAR Announced in the open court KUMAR KHARTA KHARTA Date: 2024.07.27 on 27th day of July, 2024 17:27:00 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:27.07.2024 FIR No. 137/2008, PS DBG Road, Page No. 51 of 51 State Vs. Rambir & Ors.