Delhi District Court
State vs 1. Gajender Babu @ Tillu on 29 August, 2019
IN THE COURT OF SH. RAM PRAKASH PANDEY
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
Sessions Case No. 58706/2016
State Versus 1. Gajender Babu @ Tillu
S/o Ganeshi Lal
R/o H.No. J-1656,
Jahangir Puri, Delhi
2. Kishan
S/o Shravan Kumar
R/o H.No. J-1664,
Jahangir Puri, Delhi
FIR No. : 180/15
Police Station : Mahendra Park
Under Section : 279/308/34 IPC
Date of institution : 17.03.2016
Date of arguments : 14.08.2019
Date of judgment : 29.08.2019
JUDGMENT:
The SHO of Police Station Mahendra Park has challaned the accused persons in the court of Ld. Metropolitan Magistrate for the trial of the accused persons for the offences under Sections 279/308/34 IPC. After supplying the copies to the accused persons and compliance of provisions of the section 207 Cr. P.C., learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused State v. Gajender Babu @ Tillu & Anr. Page 1 of 26 persons.
BRIEF FACTS OF THE CASE
2. Case of the prosecution is that on 10.03.2015 complainant Sh. Devender Bharti lodged a complaint with the SHO, PS Mahendra park. In the said complaint, the complainant alleged that on 07.03.2015 at about 12 Noon his son Krishna aged 7 years had gone to purchase toffee from J-1835, Jahangir Puri, Delhi after leaving his home i.e. H.No. J-1833-34, Jahangir Puri, Delhi. When his son reached in the gali in front of J-1835, Jahangir Puri, two boys came there on a motorcycle from the side of big park and hit his son, as a result, his son fell down on the road. The motorcycle was being driven by Kishan S/o Shravan R/o J-1664, Jahangir Puri, Delhi and Gajender @ Tillu S/o Ganeshi Lal R/o J-1656, Jahangir Puri, Delhi was sitting on the pillion seat. After the accident, Kishan stopped the motorcycle and told Gajender @ Tillu that father of Krishna shows a lot of leadership in the area and he should be taught a lesson. Thereafter, Kishan told Tillu to kill Krishna. Tillu @ Gajender lifted Krishna from the ground and hit his head with the park wall. As a result thereof, Krishna sustained head injuries. Both the said boys then ran away from the spot. Somebody told the complainant about the incident. Complainant rushed to the spot and got his son Krishna admitted in Max State v. Gajender Babu @ Tillu & Anr. Page 2 of 26 Hospital, Shalimar Bagh in unconscious condition.
CHARGES AND PLEA OF THE ACCUSED PERSONS
3. Prima facie case for the offences punishable under Sections 279/308/34 IPC was made out against both the accused. Accordingly, charge was framed against both the accused on 25.04.2016. Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case, prosecution examined 18 witnesses in all namely PW1 Dr. Deepika Mittal, PW2 Dr. Nitin Bajaj, PW3 Dr. Mili Dutta, PW4 Dr. Sonal Gupta, PW5 Krishna, PW6 Sh. Devender Bharti, PW7 HC Satpal, PW8 ASI Narender Kumar, PW9 Sh. Dinesh, PW10 Sh. Furkan, PW11 Retd. ASI/Tech. Devender Kumar, PW12 Sh. Virender Singh, PW13 Ct. Mukesh Kumar, PW14 Mohd. Yunus, PW15 Sh. Ashwani, PW16 Dr. Nafisa Shakir Batta, PW17 Sh. Harjeet Singh Jaspal and PW18 Inspector M.P. Saini.
5. PW1 Dr. Deepika Mittal of Max Hospital deposed that on 07.03.2015 at about 1.15 PM, patient Krishna S/o Devender, 7 years was brought with alleged history of hit by a motorcycle at around 1 PM near their State v. Gajender Babu @ Tillu & Anr. Page 3 of 26 residence, fall overhead. Alleged history of loss of consciousness lasting for 4- 5 minutes. RTA with right tempo parietal region fracture. GCS E-4 M-4 V-5 (E means eye response, M means motor response, V means verbal response). The patient was referred to Paediatrics and Neuro-Surgery for further management and opinion. PW1 further deposed that she opined nature of injury as 'dangerous'. PW1 also proved the MLC of the injured as Ex. PW1/A.
6. PW2 Dr. Nitin Bajaj, attending Pediatrics Consultant of Max Hospital deposed that on 07.03.2015 patient Krishna, aged 7 years, male was admitted in the hospital vide no. 170070892 and was under the supervision of Dr. Sonal Gupta. The patient was treated in Max Hospital, Shalimar Bagh and discharged on 09.03.2015 at 12.15 PM in stable condition. PW2 further deposed that he prepared the discharge summary of Krishna Ex. PW2/A.
7. PW3 Dr. Mili Dutta deposed that on 7 th, 8th and 9th of March, 2015, she prepared the CT head/brain, CT spine and ultrasound abdomen reports Ex. PW3/A, PW3/B and PW3/C. Dr. Anchal Dinesh Gupta, Radiologist prepared the X-Ray report Ex. PW3/D.
8. PW4 Dr. Sonal Gupta deposed that on 07.03.2015, patient State v. Gajender Babu @ Tillu & Anr. Page 4 of 26 Krishna, aged 7 years, male was admitted in the hospital vide no. 170070892 and was treated by her. The patient was treated in Max Hospital, Shalimar Bagh and was discharged on 09.03.2015 at 12.15 PM in stable condition. Dr. Nitin Bajaj prepared the discharge summary of Krishna Ex. PW2/A.
9. PW5 Krishna is the injured/minor who was examined after the court ensured that the child was able to understand the questions and answered rationally. PW5 deposed that he does not remember the date or month. He also does not remember as to how many months back it happened. On that day, he took Rs.2/- from his father for purchasing some eatable (toffee). It was morning time. He was going with his father towards the shop. They purchased the eatable (toffee) from the shop. Thereafter, he was returning home. His father left behind. One bike came from behind and hit him due to which he fell down by the side near the wall of a house. There were two persons on that bike. While he was getting up from the ground, the person who was sitting on the pillion seat of the bike picked him and threw him towards the park. He sustained head injury but he do not know if his head hit against the wall or the ground. Thereafter, he does not know what happened. In cross-examination, PW5 deposed that he cannot tell the distance between the place of incident and the shop from where he purchased the toffee. State v. Gajender Babu @ Tillu & Anr. Page 5 of 26
10. PW6 Sh. Devender Bharti deposed that on 07.03.2015 at about 12 Noon he alongwith his son Krishna went to the shop for purchasing toffee. He gave Rs.2/- to his son Krishna and also accompanied him to the shop. He has another house in front of the shop. In between the shop and his house No. J- 1836, Jahangir Puri, there is one park. After purchasing toffee, he went to his house No. J-1836. His son left for his house No. J-1833-34 after taking toffee. After hearing the noise, he saw accused Gajender Babu @ Tillu picked up his son Krishna and threw him on the wall of the park. He immediately rushed to the said place. PW6 identified both the accused in the court. Accused Kishan was riding on the motorcycle and accused Gajender @ Tillu was riding on the pillion seat. Both accused ran away from the spot on the motorcycle. He reached the place of occurrence and some public persons gathered over there. Public persons were saying that the motorcyclist said "yeh Deepak ka ladka hai, maar saale ko bada neta banta hai". He alongwith his relative took his son to Max Hospital. In the hospital, police met him and he told them that he would give his statement later on as his son was under treatment. His son sustained fracture on his head. On 10.03.2015 in the evening, he gave complaint Ex. PW6/A. State v. Gajender Babu @ Tillu & Anr. Page 6 of 26
11. In the cross-examination, PW6 deposed that the shop from where the toffee was purchased, is situated in the street at the corner of the park. About one or two years back before this incident, he made 2-3 complaints in the police station about the boys including the accused persons herein as they used to smoke and drink openly in front of the shop from where he purchased the toffee for his son. He made those 2-3 complaints in writing. In a question put to PW6, he replied that he do not know if his son was conscious or not. However, his wife had taken the child to the private clinic of Dr. Anwar situated at J-1900 and when he reached the clinic, his son was unconscious. Thereafter, he took his child to Max Hospital, Shalimar Bagh.
12. PW7 HC Satpal deposed that on 07.03.2015 he was working as Duty officer in PS Mahendra park. He got recorded FIR No.180/15 U/s.279/338 IPC. He made his endorsement Ex. PW7/A on the rukka. PW7 proved the FIR as Ex. PW7/B and certificate U/s.65B of Indian Evidence Act as Ex. PW7/C.
13. PW8 ASI Narender Kumar deposed that on 07.03.2015 on the receipt of DD No.29B Ex. PW8/A, he alongwith Ct. Anil went to Max Hospital and collected MLC No.822/15 of Krishna. He met father of Krishna namely State v. Gajender Babu @ Tillu & Anr. Page 7 of 26 Devender who told him that he is not in a position to give statement due to bad condition of his son. He prepared rukka and handed over the same to Ct. Anil at 3.50 PM. He reached the placed of occurrence in front of H.No. J-1803 where no eye witness was found.
14. PW9 Sh. Dinesh deposed that on 15.03.2015, he was going to the shop of a nearby doctor from his house to take medicines. It was around 12.00 or 12.30 noon. When he was passing through 1800 Wali Gali, at some distance from park he heard a sound of bike and he reached there and found that a male child had received injuries with bike. A huge crowd collected there. Two persons were on the bike. PW9 has deposed that he is not able to recognize their face as he was at some distance from the spot. He did not see anything being done by the persons on the bike to the child. Father of that child reached there and they took the child to the hospital. Those two boys on the bike had left the spot. He could not note down the registration number of that bike. PW9 further deposed that he had gone to Rohini Jail to identify those two persons who were on the bike but he could not identify those two persons at that time during TIP proceedings. Neither he identified those two persons later on before the police. PW9 has identified his signatures on the TIP proceedings of accused Kishan Ex. PW9/A and has also identified his State v. Gajender Babu @ Tillu & Anr. Page 8 of 26 signatures on the TIP proceedings of accused Gajender Babu @ Tillu Ex. PW9/B.
15. Ld. Chief Public Prosecutor cross-examined PW9 and in the said cross-examination he deposed that the child had fallen on the road after being hit by the bike. He had seen the pillion rider of the bike throwing child on the wall of the park and he had stated this fact before the police also. The child had sustained injuries on his head. Name of the injured child was Krishna. Name of the father of child was revealed as Devender @ Deepak Bharti who had removed the child to the hospital. Rider and pillion rider of the motor cycle had fled away from the spot after the incident. PW9 has denied the suggestion that he had identified the rider and pillion rider before the police after he had failed to identify both of them in the TIP and their names revealed as Kishan S/o Sharvan and Gajender Babu @ Tillu. PW9 has further denied the suggestion that his statement to this effect was recorded by the police. PW9 was confronted to this effect. PW9 has further deposed that he cannot admit or deny as to whether Gajender present in the court is the person who had thrown the child on the wall of the park. He did not remember whether the incident had occurred on 07.03.2015. PW9 has further denied the suggestion that both the accused present in the court are the same persons whom he had State v. Gajender Babu @ Tillu & Anr. Page 9 of 26 identified before the police as the accused. PW9 has deposed that he cannot identify the bike if shown to him.
16. In the cross-examination by accused Gajender Babu @ Tillu, PW9 deposed that father of the child had come at the spot after five to six minutes of the incident and PW9 later on came to know that he was father of the child since he had removed the injured to the hospital. Police recorded his statement after six to seven days of incident.
17. PW10 Sh. Furkan deposed that he deals in repairing of cooker, gas stove etc. by hawking in the area of Jahangir Puri for the last 18-20 years. On 07.03.2015 at about 12.00-12.30 PM, he was going to the nearby grocery shop from his house to buy Beedi. When he reached 3-4 houses away from the park near his house, he saw that a pillion rider of a motorcycle threw a boy aged about 6-7 years on the wall of the park. Thereafter, both the persons on the motorcycle fled away from the spot. Immediately thereafter father of that child reached at the spot and took his injured son to the hospital in his lap. PW10 further deposed that he had not seen the faces of those persons on the motorcycle but he had seen them from the back only, hence, he cannot identify those two persons today in the court and he could not even note down the State v. Gajender Babu @ Tillu & Anr. Page 10 of 26 registration number of the motorcycle. PW10 has failed to identify both the accused persons even after cross-examination by Ld. Chief Public Prosecutor. In the cross-examination by accused Kishan, PW10 deposed that grand mother of injured child is his landlady.
18. PW11 Retd. ASI/Tech. Devender Kumar deposed that on 19.03.2015, he had carried out the mechanical inspection of motorcycle bearing no. DL4SCA6610 make Discover. He found light wiser of both sides portion scratched and left side clutch liver and grip end handle scratched. He found that the mechanical system of the engine, brakes, handle, light was OK. The motorcycle was found fit for road test. He proved his mechanical inspection as Ex. PW11/A.
19. PW12 Sh. Virender Singh, Ld. MM, North District, Rohini Courts, Delhi deposed that on 27.03.2015, he was posted at Rohini Court Complex as MM. On that day, an application Ex. PW12/A u/s. 164 Cr.P.C. for recording statement of Master Krishna, aged 7 years S/o. Sh. Devender @ Deepak Bharti was marked to him by Ld. ACMM, North. He recorded the statement of Master Krishna on the same day after getting the victim Krishna identified through IO SI MP Saini. PW12 proved the statement recorded by him as Ex. State v. Gajender Babu @ Tillu & Anr. Page 11 of 26 PW12/B; proceedings u/s.164 Cr.P.C. as Ex. PW12/C; certificate regarding correctness of proceedings and statement as Ex. PW12/D.
20. PW13 Ct. Mukesh Kumar deposed that on 07.03.2015 he was posted at PS Mahendra Park as DD writer. On that day at about 2.15 PM, security guard namely Kunj Bihari Sharma of Max Hospital, Shalimar Bagh gave an information regarding admission of child aged about 7 years in the hospital having met with a road accident. He recorded this information vide DD No. 29-B. The said DD was marked to SI Nagender. PW13 proved the said DD as Ex.PW8/A. PW13 further deposed that on 11.05.2015, he joined investigation of this case. On that day, he alongwith HC Rameshwar and SI M.P. Saini were present near Jahangir Puri Metro Station. A secret informer had informed them that accused persons involved in the present case could be present at their houses. On this information, they all reached at H.No. J-1656, Jahangir Puri, Delhi and found accused Gajender @ Tillu. Accused Gajender @ Tillu was arrested vide memo Ex. PW13/A and his personal search was conducted vide memo Ex. PW13/B. Accused Gajender @ Tillu made a disclosure statement Ex. PW13/C. Thereafter, they reached the house of other accused at H.No. J-1664, Jahangir Puri and accused Kishan was arrested after due interrogation vide memo Ex. PW13/D and his personal search was State v. Gajender Babu @ Tillu & Anr. Page 12 of 26 conducted vide memo Ex. PW13/E. Accused Kishan also made disclosure statement Ex. PW13/F. Both the accused persons also pointed out the place of occurrence vide memos Ex. PW13/G and Ex. PW13/H. PW13 has identified both the accused in the court.
21. PW14 Mohd. Yunus deposed that on the day of incident, he had gone out of his shop to buy articles and when he returned to his shop after buying articles, he came to know that an accident had taken place with a child at the corner of the gali near his shop. He do not know anything else about the accident or incident. PW14 further deposed that he do not know the accused persons. PW14 has been declared hostile by Ld. Chief Public Prosecutor.
22. PW15 Sh. Ashwani deposed that on the day of incident i.e. 07.03.2015 at about 12.00/12.15 PM, when he was leaving his house to go for his job and when he reached second floor of his house, he heard some noise of crying of a child. He saw from the second floor that accused Kishan was having a child named Krishna in his hand and was throwing the child against the wall of the park. He also saw accused Gajender on a black colour motorcycle which was in start condition, near that place. He also saw that father of child Krishna namely Deepak Goswami was also present nearby. State v. Gajender Babu @ Tillu & Anr. Page 13 of 26 PW15 has further deposed that as soon as he reached the ground floor through stairs, both the accused persons had fled from the spot on the motorcycle and father of the child namely Deepak Goswami picked up the child and might have taken the child to the hospital as child was having injuries. PW15 has identified both the accused in the court.
23. PW15 has further deposed that on 21.05.2015 he had identified accused Gajender, who was on motorcycle, in TIP proceedings in Tihar Jail before Ld. MM. He has proved the TIP proceeding qua accused Gajender Ex. PW9/B. PW15 has deposed that he could not identify accused Kishan during TIP proceedings in Rohini Jail on 20.05.2015. PW15 has further deposed that he got confused at that time but today he has identified accused Kishan. PW15 has also identified the motorcycle of accused as Ex. P1 as the same which was being driven by accused Kishan.
24. PW16 Dr. Nafisa Shakir Batta proved the X-ray report Ex. PW16/A in respect to patient Master Krishna dated 09.03.15 with IP No. 9024424.
25. PW17 Sh. Harjeet Singh Jaspal deposed that an application for TIP proceedings was moved before him on 12.05.2015 for accused Gajender State v. Gajender Babu @ Tillu & Anr. Page 14 of 26 @ Tillu, he being the Reliever Metropolitan Magistrate. On 21.05.2015, he went to Tihar Jail. Accused Gajender was produced by Assistant Superintendent Sh. Yogender. On being asked, accused submitted that he intends to participate in the TIP proceedings. Accused Gajender was given a choice of picking up 8-10 persons of similar height and physical attributes. Accused picked up 10 persons/participants. Witness Ashwani correctly identified the accused. Second witness Dinesh failed to identify the accused. PW17 proved application moved by the IO as Ex. PW17/1/A1; application for extension as Ex. PW17/1/B; order dated 18.05.2015 as Ex. PW17/1/C; original TIP proceedings as Ex. PW17/1/D; original order dated 12.05.2015 as Ex. PW17/1/A; envelope as Ex. PW17/1/E and documents as Ex. PW17/1/D.
26. PW17 Sh. Harjeet Singh Jaspal further deposed that on 11.05.2015, an application for TIP proceedings of accused Kishan was moved before him, being Reliever Metropolitan Magistrate. On 20.05.2015, TIP was conducted in Rohini Jail as per rules and procedure. Witnesses Dinesh and Ashwani failed to identify accused Kishan. PW17 proved original application for TIP as Ex. PW17/2/A; original order dated 12.05.2015 as Ex. PW17/2/B; application dated 20.05.2015 as Ex. PW17/2/C; original TIP proceedings as Ex. PW17/2/D; envelope as Ex. PW17/2/E and documents as Ex.PW17/2/D. State v. Gajender Babu @ Tillu & Anr. Page 15 of 26
27. PW18 Inspector M.P. Saini deposed that present case was registered on DD No. 29-B Ex.PW8/A dated 07.03.2015 received at PS Mahendra Park from Max Hospital, Shalimar Bagh, Delhi. Injured Master Krishna aged 7 years was got admitted after receiving injury in road accident by his father Mr. Devender. On receipt of DD entry, first IO ASI Nagender Kumar alongwith Ct. Anil reached Max Hospital, Shalimar Bagh where he found injured admitted. Doctor had mentioned alleged history of hit by motorcycle at around 1.00 PM on 07.03.2015 near his residence as fall overhead. Doctor had also opined the nature of injury as dangerous. After registration of the case on the said DD entry u/s. 279/338 IPC, present case was assigned to PW18.
28. PW18 further deposed that Sh. Devender Bharti @ Deepak, father of injured gave a written complaint Ex. PW6/A at PS Mahendra Park vide DD No. 28-A. Same was also marked to PW18 for necessary enquiry. Simultaneously, investigation of this case was also marked to PW18 for further investigation on 10.03.2015. In the said complaint, Mr. Devender Bharti levelled allegations against two boys namely Kishan and Gajender @ Tillu alleging that Kishan was riding the motorcycle and Gajender @ Tillu was sitting behind him as pillion rider and his son Master Krishna was hit by motorcycle State v. Gajender Babu @ Tillu & Anr. Page 16 of 26 first and thereafter, Kishan and Gajender @ Tillu hatched a conspiracy and on the direction of accused Kishan, his associate, accused Gajender picked up injured Krishna and he thereafter, pushed towards wall of the park near place of accident and the boy sustained head injury due to this act. During investigation, PW18 recorded statement of injured boy Kishan and Devender Bharti @ Deepak, father of injured boy. Statements of other eye witnesses Mohd. Yunus, Ashwani, Furkan and Dinesh, who allegedly seen the boy at the time of incident, were also recorded.
29. PW18 further deposed that he moved application Ex. PW12/A for recording statement of injured Kishan u/s.164 Cr.P.C. He further proved the statement of Master Krishna u/s.164 Cr.P.C. as Ex. PW12/B; proceedings of recording statement u/s.164 Cr.P.C. as Ex. PW12/C; application for providing copy of statement u/s. 164 Cr.P.C. as Ex. PW12/E. PW18 made efforts to obtain the opinion from treating doctor on the aspect whether injured Kishan received the head injury due to throwing him towards the wall by the accused persons and doctor had given in writing "we have given all our opinion in our MLC report and treatment papers and investigation reports". PW18 proved his application as Ex. PW18/A and the observation as Ex.PW18/B. He added Section 308 IPC in the case in place of section 338 IPC. He seized motorcycle State v. Gajender Babu @ Tillu & Anr. Page 17 of 26 bearing registration no. DL4SCA6610 with its key, produced by accused Kishan vide seizure memo Ex. PW18/C. The motorcycle was got mechanically inspected vide mechanical inspection report Ex. PW11/A. He also seized the original driving license of accused Kishan and copy of RC of aforesaid motorcycle vide seizure memo Ex. PW18/D. PW18 also proved copy of RC as Ex. PW18/E and the original driving licence as Ex. PW18/F.
30. PW18 further deposed that he made a request to the MLO, Transport Authority, Janak Puri and Wazirpur Depot to verify the copy of aforesaid RC and driving licence, respectively vide applications Ex. PW18/G and PW18/G-1. PW18 proved the verification reports as Ex. PW18/H and PW18/H-1. During the investigation, he moved an application to Medical Superintendent, Max Hospital, Shalimar Bagh for providing medical record of Master Krishna vide application Ex. PW18/I. PW18 also proved medical record as Ex. PW2/A and PW3/A. PW18 further deposed that he moved an application to Medical Superintendent, Max Hospital, Shalimar Bagh for verification of medical papers vide application Ex. PW18/J and the same had been verified vide documents Ex. PW3/B, PW3/C, PW3/D and PW16/A (colly.). State v. Gajender Babu @ Tillu & Anr. Page 18 of 26
31. PW18 further deposed that on 13.03.2015, he prepared the site plan Ex. PW18/K at the instance of injured Master Kishan. He arrested accused Gajender Babu @ Tillu and Kishan in this case on 11.05.2015 from their respective houses vide arrest memos Ex. PW13/A and PW13/D. Their personal search was carried out vide memos Ex. PW13/B and PW13/E. PW18 identified both the accused in the court. Accused Gajender Babu and Kishan made disclosure statements Ex. PW13/C and PW13/F. Both accused pointed out the place of occurrence vide pointing out memos Ex. PW13/G and PW13/H. Both the accused persons were put for judicial TIP. PW18 proved his applications in this respect as Ex. PW17/2/A, PW17/1/B and PW17/2/C. PW18 also proved the TIP proceedings of accused Kishan as Ex. PW17/2/D and TIP proceedings of accused Gajender @ Tillu as Ex. PW17/D. Witness Ashwani had correctly identified accused Gajender @ Tillu. Other eye- witnesses namely Mohd. Yunus and Furkan had shown their inability to join the TIP proceedings due to preoccupation of their work.
PLEA AND DEFENCE OF ACCUSED PERSONS
32. In the statements U/s. 313 Cr.P.C., accused persons have either denied the incriminating evidence emerging from prosecution case put to them or have expressed their ignorance about the same. They stated that they have State v. Gajender Babu @ Tillu & Anr. Page 19 of 26 been falsely implicated in this case at the instance of the complainant. They opted to lead evidence in their defence.
33. In defence, accused persons have examined DW1 Mohd. Yusuf. DW1 Mohd. Yusuf has deposed that on 07.03.2015 he alongwith accused Kishan and Tillu were playing cricket match at A-Block school playground, Jahangir Puri, Delhi between 8 AM to 4 PM. He came to know about the case through mother of accused Kishan.
ARGUMENTS AND FINDINGS
34. I have heard the Ld. Addl. PP for State and the Ld. Counsels for accused persons and carefully perused the evidence brought on record. While the Ld. Public Prosecutor for State has submitted that the prosecution case has been proved beyond reasonable doubts by examining the victim and other eye- witnesses, the Ld. Counsels for accused persons have submitted that the entire prosecution evidence is full of contradictions and that the State has miserably failed to prove its case.
35. PW5 Krishna is the injured/victim, who is the minor son of the complainant. In one of the questions put to him by the Court before his State v. Gajender Babu @ Tillu & Anr. Page 20 of 26 examination, the injured/victim deposed that his father told him as to what he has to depose in the court. He deposed that his father was left behind after they had purchased the eatable (toffee) from the shop. He could not identify the accused persons.
36. PW6 Sh. Devender Bharti, father of victim Master Krishna, is the complainant. He deposed that after purchasing toffee from a shop bearing no. J-1835, he went to his house No. J-1836, Jahangir Puri, across the park and his son left for his another house no. J-1833-34. After hearing the noise, PW6 saw accused Gajender Babu @ Tillu picked up his son Krishna and threw him on the wall of the park. Complainant has tried to prove himself as an eye- witness of the scene of incident. However, this very deposition of PW6 raises doubt in view of the testimony of other witnesses and his own complaint to police Ex. PW6/A.
37. While in his examination in chief before the court, PW6 Devender @ Deepak deposed that he went to his another house no. J-1836, Jahangir Puri, after purchase of toffee by victim who left for his house no. J-1833-34 and after hearing the noise, he saw accused Gajender Babu @ Tillu picking up his son and throwing on the wall of the park, in his own complaint made to the State v. Gajender Babu @ Tillu & Anr. Page 21 of 26 police three days after the incident i.e. on 10.03.2015 stated that his son (victim) had gone to take toffee and when the child reached gali in front of J- 1835 two boys came on a bike from big park side gali and hit his son who fell down. He also stated in the same complaint that at the time of incident he had gone to his other house no. J-1836 to check sewer water and he was informed by somebody about the incident and he came to the spot where he found victim Krishna unconscious and took him to Max Hospital. Thus, as per his own complaint, Sh. Devender @ Deepak was not an eye-witness to the incident, but during his examination in chief, he improved his version and went to the extent that he had seen occurrence of the incident.
38. It is noteworthy that initially the FIR was registered U/s.279/338 IPC on the DD entry no. 29B dated 07.03.2015 recorded on telephonic information received from Security Officer Max Hospital when victim child was admitted by his father in the hospital. Thereafter, the detailed complaint was given by father of victim, who is PW6, in which the entire incident had been narrated giving names of the accused persons and also making out an offence U/s.308 IPC on the basis of which the Section 308 IPC was added to FIR by deleting Section 338 IPC.
State v. Gajender Babu @ Tillu & Anr. Page 22 of 26
39. Third public witness of the incident is PW9 Sh. Dinesh who during his examination in chief deposed that he heard the noise of bike and reached at the spot where he found a male child who received injuries and huge crowd had gathered there. He said that father of the child reached there and took the child to the hospital. During his cross-examination, he has specifically deposed that father of the child had reached at the spot after 5-6 minutes of the incident. Thus, as per him also, Devender @ Deepak i.e. father of the child reached after the incident. Even PW Dinesh had reached at the spot after the occurrence of the incident and Devender reached there subsequent thereto. PW9 also could not identify the accused persons.
40. Similarly, next public witness PW10 Sh. Furkan has also said during his examination in chief that immediately after the incident father of the child had reached the spot and took injured/child to the hospital in his lap. He has also deposed that he had not seen the faces of accused persons and failed to identify accused in the court. PW14 Mohd. Yunus is the shopkeeper who runs grocery shop at J-1835 but he said that he had gone out of his shop to buy the articles at the time of incident and subsequently came to know that accident had taken place with a child at the corner of the gali near his shop. State v. Gajender Babu @ Tillu & Anr. Page 23 of 26
41. When I see the testimony of PW Devender alongwith testimonies of all these witnesses discussed above, it is abundantly clear that he is not the eye-witness of the occurrence of the incident and his complaint Ex. PW6/A given to the police after three days is an after-thought wherein he has informed even the names of accused persons. Thus, his version about the incident and identity of the accused persons cannot be believed.
42. PW15 Ashwani is another public witness in the case who deposed that while he was leaving his house to go for job at about 12/12.45 PM he saw from his second floor that accused Kishan (correctly identified) was having a child named Krishna in his hand and was throwing the child against the wall of the park. He also saw accused Gajender, present in the court, on a black colour motorcycle which was in start condition also present near that place. He also saw the father of the child Krishna namely Deepak present nearby. He deposed that accused persons fled from the spot on a motorcycle and father of the child namely Deepak (@ Devender) picked up the child and might have taken him to the hospital. He was confronted with his statement Ex. PW15/DA where he had stated that father of the child was standing on the other corner of the park and not nearby the child at the time of the incident as deposed before the court. He deposed during his cross-examination that he is son of sister of State v. Gajender Babu @ Tillu & Anr. Page 24 of 26 Deepak (@ Devender), meaning thereby that he is a close relative of the complainant and the victim. It is settled position of law that testimony of a witness cannot be discarded merely because he is a relative of the victim, but at the same time testimony of PW15 reveals a major contradiction as he deposed and identified Kishan as the person who was throwing the child against the wall of the park and accused Gajender as the person who was on the black colour motorcycle in start condition, whereas the entire case of the prosecution is based on the allegation that it was Kishan who was driving the motorcycle and accused Gajender Babu @ Tillu had thrown the child against the wall of the park. Thus, PW15 Ashwani is not trustworthy and his testimony is of no use for reaching any conclusion as to the alleged incident or involvement of accused persons.
43. Analysis of the entire evidence on record, as discussed above, shows that the prosecution has failed to bring home guilt of the accused persons. The prosecution has not been successful to prove the allegation that accident was caused by accused Kishan by rash and negligent driving of motorcycle. The prosecution has also failed to establish its case that it was accused Gajender @ Tillu, who in common intention with accused Kishan, had picked up victim Krishna and hit him against the wall of the park. State v. Gajender Babu @ Tillu & Anr. Page 25 of 26 RESULT OF THE CASE
44. In view of my above findings, accused persons are given benefit of doubt and accordingly they are acquitted of the charges U/s.279/308 r/w Section 34 IPC.
45. Bail bonds of accused persons stand cancelled and their sureties are discharged. Original documents, if any, be released to the rightful owner after getting the endorsement cancelled.
46. File be consigned to Record Room after compliance of bail bond U/s.437-A Cr.P.C.
Digitally signedby RAM
RAM PRAKASH
Announced in the open Court PRAKASH
PANDEY
PANDEY
Date:
today i.e. on 29th August, 2019
2019.08.30
15:59:45 +0530
(R.P. Pandey)
District & Sessions Judge (North)
Rohini Courts, Delhi
State v. Gajender Babu @ Tillu & Anr. Page 26 of 26