Delhi District Court
State vs . Vinod Chotti & Others on 26 April, 2013
State vs. Vinod Chotti & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL, THC: DELHI
SC No. 45/2008
ID No: 02401R1115382008
FIR No. : 88/08
PS : Nabi Karim
U/S : 307/34 IPC
Date of Institution : 23.08.2008
Date of Committal to Sessions Court : 02.12.2008
STATE
VERSUS
1. Vinod @ Chotti
S/o Late Sh. Amar Singh
R/o H. No. 6464/1, Gali Hanuman Mandir wali
Nabi Karim, Delhi
........Accused No. 1
2. Dharamvir @ Sonu
S/o Late Sh. Vijay Kumar
R/o H. No. 5657/20, Gali Hanuman Mandir wali
Nabi Karim, Delhi
........Accused No. 2
3. Surender Kumar
S/o Late Sh. Amar Singh
R/o RZ-26A, Mahavir Enclave, Palam,
New Delhi
........Accused No. 3
AND
SC No. 45/08 & SC No. 26/10 Page no. 1 of 28
State vs. Vinod Chotti & others
SC No. 26/2010
ID No: 02401R0405622009
FIR No. : 88/08
PS : Nabi Karim
U/S : 307/34 IPC
Date of Institution : 31.8.2009
Date of Committal to Sessions Court : 03.06.2010
1. Dharam Pal Tanwar,
S/o Late Sh. Ram Dass
R/o H. No. 6508, Gali Hanuman Mandir,
Nabi Karim, Delhi
........Accused No. 1
2. Sanjay Tanwar,
S/o Dharam Pal Tanwar
R/o H. No. 6508, Gali Hanuman Mandir,
Nabi Karim, Delhi
........Accused No. 2
3. Kishan Lal Tanwar
S/o Dharam Pal Tanwar
R/o H. No. 6508, Gali Hanuman Mandir,
Nabi Karim, Delhi
........Accused No. 3
4. Ram Chander Khanagwal,
S/o Late Sh. Prahlad Khanagwal,
R/o H. No. 6508, Gali Hanuman Mandir,
Nabi Karim, Delhi
........Accused No. 4
5. Kishore Dabla
S/o Jagdish Dabla
R/o H. No. 8072, Gali No.8 Multani Dhanda,
Pahar Ganj, Delhi
........Accused No. 5
6. Zile Singh
S/o Late Sh. Data Ram
R/o H. No.2529, Bagichi Raghunath,
Sadar Bazar, Delhi ........Accused No. 6
SC No. 45/08 & SC No. 26/10 Page no. 2 of 28
State vs. Vinod Chotti & others
7. Dharamvir Singh @ Sonu
S/o Late Sh. Vijay Kumar
R/o H. No.5657/20,Gali Hanuman,
Nabi Karim
Delhi
........Accused No. 7
8. Surender Kumar
S/o Late Sh. Amar Singh
R/o RZ-26, Mahavir Enclave, Palam, Delhi
........Accused No. 8
Date of judgment reserved on : 16.04.2013
Date of pronouncement of judgment : 26.04.2013
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for
the State
Sh. Yogesh Verma Advocate, learned counsel for accused
Dharamvir @ Sonu
Sh. Manoj Sharma Advocate, learned counsel for
remaining accused persons
J U D G M E N T:
1. Sessions Case No. 45/2008 and Sessions Case No. 26/2010 are the subject matter of this judgment.
2. Briefly stated facts of prosecution case are that on June 23, 2008 at about 6.50 PM, an intimation was received at police station Nabi Karim from the police control room that someone had stabbed to Kamal near House No. 6497, gali Hanuman Mandir, Nabi Karim, Delhi. Said intimation was given to the Police control room from mobile phone bearing No. 9871152544 and the intimation was recorded at PS Nabi Karim vide DD 22/A (Ex. PW1/C), which was assigned to SI Vijay Kumar SC No. 45/08 & SC No. 26/10 Page no. 3 of 28 State vs. Vinod Chotti & others who along with constable Amit left for the place of occurrence.
(i) On reaching the place of occurrence, it was revealed that injured had already been taken to Lady Harding hospital, consequently, investigating officer along with constable reached the hospital where injured Kamal was found admitted. SI Vijay Kumar collected the MLC of injured, upon which doctor had declared the injured unfit to make statement. At that time, injured was in the operation theatre. It was alleged that eye-witness named Pritam Indoria met in the hospital, who got recorded his statement to the investigating officer.
(ii) In his statement, Pritam Indoria alleged that on June 23, 2008 at about 6.20 PM, he was going to Hanuman Mandir via factory road and saw that accused Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan had apprehended the injured Kamal Indoria near 5657/20, gali Hanuman Mandir and they were beating him.
(iii) It was alleged that accused Vinod @ Chotti had taken out a knife from his pant and stabbed in the abdomen of Kamal Indoria, consequently, Kamal Indoria fell down. It was alleged that when he raised the alarm, accused Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan fled away from the spot. It was further stated that accused Vinod @ Chotti had thrown his knife while fleeing away from the spot. It was alleged that complainant with the help of Chanchal Indoria took the injured to Lady Harding hospital.
(iv) On the basis of his statement, an FIR for the offence punishable under Section 307/34 IPC was got registered. During investigation, the blood stained clothes of injured were seized and at the pointing out of complainant, knife having blood stained was seized from SC No. 45/08 & SC No. 26/10 Page no. 4 of 28 State vs. Vinod Chotti & others the place of occurrence.
(v) It was alleged that on June 24, 2008, accused Vinod @ Chotti was arrested and in his disclosure statement, he disclosed that knife was given to him by Dharamvir @ Sonu along with ` 50/- with direction to eliminate injured Kamal Indoria. The blood stained clothes of accused Vinod @ Chotti were also seized.
(vi) It was alleged that on June 27, 2008, injured Kamal Indoria was declared fit to make statement. Accordingly, he got recorded his statement to the police alleging that on June 23, 2008 at about 5/5.30 PM, he was present at New Delhi Railway Station and at that time, accused Ram Chand Khanagwal, Surender and Zile Singh were starring at him. At about 6.40 PM, he left for his house on motor cycle, but all these accused persons followed him on their motor cycle. It was alleged that when he reached gali Hanuman Mandir to go to his house, accused Dharam Pal and his two sons namely Sanjay and Kishan, Kishore Dabla and Vinod @ Chotti had surrounded him. It was alleged that accused Ram Chander, Zile Singh, Surender and Dharam Pal exhorted others to catch hold him and kill him, thereafter the said persons went away. It was alleged that on their exhortation, accused Kishore Dabla, Sanjay and Kishan caught hold him whereas accused Vinod @ Chotti had stabbed him in his abdomen. Thereafter, they all fled away from the spot.
(vii) It was further alleged that on June 27, 2008, accused Dharamvir @ Sonu was arrested.
(viii) It was alleged that thereafter investigation was transferred to DIU Cell and it was assigned to SI Satbir Singh.
SC No. 45/08 & SC No. 26/10 Page no. 5 of 28
State vs. Vinod Chotti & others
(ix) It was alleged that on July 3, 2008, accused Surender Kumar
was arrested. Thereafter, the result on the MLC of Kamal Indoria was obtained. Doctor opined that he had sustained grievous injury.
(x) It was alleged that on July 21, 2008 on the Criminal Writ Petition of Kishore Dabla, Ram Chand Khanagwal and Dharam Pal Tanwar, Hon`ble High Court of Delhi directed the police to transfer the investigation to Crime branch. Accordingly, investigation was assigned to SI Sanjay Kumar. During investigation, SI Sanjay Kumar had recorded the statement of several persons, thereafter investigation was assigned to Anti-Extortion Cell, Crime Branch where it was assigned to SI Suresh Kumar.
(xi) After completing the investigation, challan was filed against the accused Vinod @ Chotti for the offence punishable under Section 307 IPC. Accused Dharamvir @ Sonu and Surender Kumar were arrested by mentioning their name in Column No. 2. It was recited that further investigation was going on qua other accused persons.
(xii) Though the name of Dharamvir @ Sonu and Surender Kumar was mentioned in column No. 2, yet learned Chief Metropolitan Magistrate also summoned them vide order dated September 4, 1998.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Sessions Court on November 24, 2008. Accordingly, the case was assigned to the Court of Sh. K. S. Mohi, the then learned Additional Sessions Judge on December 2, 2008. Accordingly, case was registered as SC No. 45/2008.
4. Vide order dated July 30, 2009, accused Dharamvir @ Sonu and Surender were released on the ground on the ground that no SC No. 45/08 & SC No. 26/10 Page no. 6 of 28 State vs. Vinod Chotti & others charge-sheet was filed against them.
(i) It was alleged that supplementary challan was filed qua accused Dharam Pal Tanwar, Sanjay Tanwar, Kishan Lal Tanwar, Ram Chand Khanagwal, Kishore Dabla and Zile Singh by mentioning their name in column No. 11. It was alleged that during the investigation, accused Dharam Pal Tanwar and his sons namely Sanjay Tanwar and Kishan Lal Tanwar took the plea that on June 23, 2008 at the time of incident, they were present at Bagicchi Raghunath, Sadar Bazar, Delhi and they have been impleaded due to previous enmity. Similarly, accused Ram Chander Khanagwal took the plea that he was present at his house at Basti Zulaha, ID Gah Road. Accused Zile Singh took the plea that he was in the meeting of Akhil Bhartiya Samaj whereas accused Kishore Dabla took the plea that he was in Lucknow in connection with his business. All the accused took the plea that injured had falsely implicated them due to previous enmity and he had even lodged false FIRs against them previously. It was further stated that accused Surender took a plea that at the time of incident, he was present at New Delhi Railway station. It was stated that during investigation, the plea taken by the accused persons were verified. Accordingly, the said accused persons were not arrested. However, their names were mentioned in the charge-sheet in column No. 11.
5. A separate supplementary challan was filed against accused Dharam Pal @ Sonu and Surender Kumar.
6. Though the name of above six accused persons were mentioned in column No. 11, yet learned Addl. CMM summoned them for the offence punishable under Section 307/34 IPC. Vide order dated November 26, 2009, accused Dharam Pal @ Sonu and Surender were also summoned.
SC No. 45/08 & SC No. 26/10 Page no. 7 of 28 State vs. Vinod Chotti & others
7. After completing the provisions of Section 207 Cr.P.C., their case was also committed to the Court of Sessions vide order dated May 22, 2010. The supplementary charge-sheet was assigned to the learned Predecessor of this Court on June 3, 2010. Accordingly, the said case was registered as SC No. 26/2010.
8. Vide order dated August 6, 2010, both the above sessions cases were clubbed together and it was directed that SC No. 45/2008 shall be the main case and the proceedings recorded therein shall also be read in SC No.26/2010.
9. Vide order dated August 6, 2010 it was held that prima facie an offence was made out against all the nine accused persons for the offence punishable under Section 120B IPC. It was further held that a charge for the offence punishable under Section 307 IPC r/w 120 B IPC was also made out separately against accused Vinod @ Chotti, Kishore Dabla, Sanjay Tanwar and Kishan Pal. Accordingly, the charge was framed against accused persons to which they pleaded not guilty and claimed trial.
10. In order to prove the guilt of accused persons, prosecution has examined as many as following sixteen witnesses:
PW1 HC Mahadev, Duty Officer, proved the FIR
PW2 Sunita, formal witness
PW3 Kamal Indoria, injured
PW4 Chanchal Indoria, cousin of injured
PW5 Sunita, formal witness
PW6 Kavita Dabla, formal witness
PW7 Dr. Rajinder Kumar, proved the FSL report.
PW8 Constable Amit, joined investigation with SI
SC No. 45/08 & SC No. 26/10 Page no. 8 of 28
State vs. Vinod Chotti & others
Vijay Kumar
PW9 Constable Nirmal Singh, joined investigation
with SI Vijay Kumar
PW10 Dr. Amit Vikram Prasad, proved the MLC of
injured and nature of injury
PW11 Inspector Sanjay Kumar, investigating officer
PW12 Inspector Satyavir, investigating officer
PW13 SI Vijay Kumar, first investigating officer
PW14 HC Yashpal, material witness
PW15 Inspector Suresh Kumar, investigating officer
PW16 HC Ramkesh, MHC (M)
11. After culmination of prosecution evidence, accused persons were examined under Section 313 Cr.P.C. wherein all the accused persons denied all the incriminating evidence adduced by the prosecution and took the plea that they have been falsely implicated in this case due to previous enmity. In order to prove their innocence, accused persons have examined the following witnesses:
DW1 Ram Chander Khangwal
DW2 Zile Singh
DW3 Surender Kumar
DW4 Dharampal Tanwar
DW5 Kishore Dabla
DW6 Rajender Prasad
DW7 Shiv Narayan Bagri
DW8 Fateh Singh
DW9 Vikas
DW10 Naresh Chand Goel, DRM
DW11 Chander Bhan
DW12 Dinesh Kumar
DW13 Mohd. Ishrat Sidqqui
SC No. 45/08 & SC No. 26/10 Page no. 9 of 28
State vs. Vinod Chotti & others
DW14 Jai Parkash Upadhaya
DW15 Mohd. Rashid
DW16 Mofidur Rehman
12. Learned counsel appearing for accused Dharamvir @ Sonu contended that there is no iota of evidence against the accused. It was submitted that PW Chanchal Indoria was the only witness against the accused but he did not utter even a single word against the accused. It was thus argued that prosecution has miserably failed to connect the accused with the alleged incident.
13. Learned counsel appearing for the other accused persons contended that injured and his family had enmity with the accused persons and both parties are involved in various litigations and due to the previous enmity, injured had falsely implicated all the accused persons despite the fact that accused persons were not even present at the place of occurrence. To prove this fact, accused persons have adduced the evidence in this regard. It was contended that accused Kishore Dabla was in Gorakhpur in connection with his business but due to previous enmity injured had also impleaded him in this case.
14. Learned counsel appearing for the accused persons vigorously contended that the narrator of FIR was Pritam Indoria, a close relative of the injured but he had given a totally different version. According to the FIR, only four accused persons were involved in this incident i.e. Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan whereas injured made the allegations against all the accused persons. It was contended that though Pritam Indoria is the close relative of the injured despite that prosecution failed to bring him in the witness box despite repeated opportunities were given and at last investigating officer made a statement in the Court that investigating agency is unable to produce him SC No. 45/08 & SC No. 26/10 Page no. 10 of 28 State vs. Vinod Chotti & others in the witness box. This itself shows how the accused have been framed in this case.
15. It was contended that prosecution case is that one blood stained knife was got recovered by the narrator of FIR Pritam Indoria but no reliance can be placed on the alleged recovery as prosecution has failed to bring Pritam Indoria in the witness box. Moreover, the recovery is quite doubtful. It was further contended that though the alleged incident had taken place in the densely populated area near the house of injured despite that investigating agency failed to get any independent witness to prove the involvement of any of the accused persons. It was submitted that during the investigation, police did not find any substance in the allegations of injured that all the accused were involved in the incident, accordingly, police had not arrested most of the accused persons and filed the charge-sheet mentioning their name in column no.
11. It was contended that investigation supported the defence version that accused persons were not present at the time of incident.
16. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that injured had not only named the accused persons but also attributed their role, thus, there is no reason to disbelieve his testimony. It was submitted that no doubt investigating officer had mentioned most of the accused persons in column no.11, but this is not sufficient to disbelieve the testimony of injured. It was argued that in order to escape from conviction they have fabricated the evidence to show that they were not present at the time of incident, thus, no reliance can be placed on the defence witnesses.
17. I have heard Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State and Sh. Yogesh Verma and Sh. Manoj Sharma Advocates, learned counsels for the accused persons, perused the SC No. 45/08 & SC No. 26/10 Page no. 11 of 28 State vs. Vinod Chotti & others record and gave my thoughtful consideration to their contentions. It is pertinent to state, neither of the parties has cited any case law in support of his contentions.
18. The prosecution case was based on the statement of PW Pritam Indoria i.e. narrator of FIR and injured Kamal Indoria. PW Pritam Indoria was not only the narrator of the FIR but he also claimed that he had witnessed the entire incident. But during the trial, prosecution failed to bring the said Pritam Indoria in the witness box despite umpteen opportunities were given. On September 06, 2011 Inspector Suresh Kumar made a statement that investigating agency had failed to bring Pritam Indoria in the witness box despite repeated opportunities given as his whereabouts could not be traced out despite best efforts made by the police. Accordingly, the name of PW Pritam Indoria was dropped from the list of witnesses on September 06, 2011. Now, the prosecution case is based only on the testimony of PW3 Kamal Indoria i.e. injured. Before coming to the testimony of injured, it is pertinent to state that Kamal Indoria and Pritam Indoria are the close relatives as Pritam Indoria is the cousin of Kamal Indoria despite that prosecution failed to bring him in the witness box.
19. It is evident from the testimony of PW3 and FIR lodged by Pritam Indoria that there is material contradictions between the case propounded by Pritam Indoria as an eye-witness and the case set up by PW3 in his subsequent statement. PW Pritam Indoria in his statement Ex.PW13/A made before the police stated that alleged incident had occurred on June 23, 2008 at about 6.20 PM and he saw that Kamal Indoria was caught hold by Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan. They were beating him. He further alleged that accused Vinod @ Chotti had taken out a knife from his pant and stabbed in the abdomen of Kamal Indoria and when he raised alarm, all the four assailants fled SC No. 45/08 & SC No. 26/10 Page no. 12 of 28 State vs. Vinod Chotti & others away. Thus, as per Pritam Indoria, Kamal Indoria was assaulted by above four persons only. However, PW3 Kamal Indoria in his deposition deposed that the said persons had assaulted him at the instance of accused Zile Singh, Surender, Ram Chander Khangwal and Dharampal. In other words, he had also impleaded the said four persons in the incident. There is no explanation from the prosecution about the said material contradiction between the testimony of above two witnesses.
20. From the testimony of PW3 it becomes clear that there was acrimony between the parties since December 2005 when the accused party had lodged an FIR against the complainant party and since then both parties are involved in various litigations and this fact is also corroborated from the testimony of DW1 to DW5. No doubt, previous enmity between the parties may be a ground to implead the accused persons falsely but simultaneously previous enmity may also be a ground to assault the injured. Thus, the Court is required to take extra precaution at the time of appreciating the evidence of injured.
21. It is pertinent to state that investigating officer had not arrested the six accused persons, namely, Dharampal, Sanjay, Ram Chander, Kishore Dabla, Zile Singh and Kishan Lal Tanwar and filed charge-sheet against them by mentioning their names in column No. 11 on the ground that investigating officer did not find cogent evidence qua their presence at the place of occurrence at the relevant time. In these circumstances, the heavy burden is shifted upon the prosecution to establish that the said accused persons were not only present at the time of incident but they had participated in the commission of crime. Simultaneously, Court is also required to scrutinise the testimony of prosecution witnesses minutely as possibility of false implication cannot be ruled out due to previous bitterness between the parties.
SC No. 45/08 & SC No. 26/10 Page no. 13 of 28 State vs. Vinod Chotti & others
22. Now I proceed to analyse the testimony of prosecution witnesses qua individual accused.
Role of Dharamvir @ Sonu:
23. The prosecution case is that accused Dharamvir @ Sonu had given a knife to accused Vinod @ Chotti along with Rs. 50/- and instigated the accused Vinod @ Chotti to eliminate PW3 Kamal Indoria and PW4 Chanchal Indoria was the witness of the said transaction. PW Chanchal Indoria appeared in the witness box as PW4 and he is also close relative of Kamal Indoria being his cousin. However, he did not support the prosecution case in any manner by deposing that he had not seen the incident and he did not know who had inflicted injury to PW3 Kamal Indoria. In his cross-examination conducted by learned Additional Public Prosecutor, he categorically denied the suggestion that accused Dharamvir @ Sonu had given any knife to accused Vinod @ Chotti or that accused Dharamvir had given a sum of Rs. 50/- to Vinod @ Chotti or Dharamvir had instigated the accused Vinod @ Chotti to eliminate Kamal Indoria. Thus, the testimony of PW4 Chanchal Indoria is not helpful to the prosecution in any manner to prove the culpability of the accused persons. Besides the testimony of PW4, prosecution has also relied upon the testimony PW 13 SI Vijay Kumar to prove the culpability of accused Dharamvir @ Sonu. As per prosecution version PW4 Chanchal Indoria had made a statement to PW13 in this regard. Since, PW4 Chanchal Indoria had turned hostile completely, PW13 can not come to the rescue of the prosecution as the alleged transaction had not taken place in his presence. Whatever information he had, he gathered either from PW4 Chanchal Indoria or from accused Vinod @ Chotti which he allegedly divulged in his disclosure statement. Needless to say that the alleged disclosure statement made by the accused Vinod @ Chotti before PW13 is not admissible in the eyes of law as the same is hit by Section 25 of SC No. 45/08 & SC No. 26/10 Page no. 14 of 28 State vs. Vinod Chotti & others the Evidence Act. As already stated that PW4 did not depose that knife was given to the accused Vinod by accused Dharamvir @ Sonu or that he had instigated the accused Vinod @ Chotti to eliminate PW Kamal Indoria, no reliance can be placed on the testimony of PW13 made in this regard. There is no other scintilla of evidence against accused Dharamvir @ Sonu. In these circumstances, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused Dharamvir @ Sonu, thus, I hereby acquit him from all the charges.
Recovery of Knife:
24. The prosecution case is that after stabbing PW Kamal Indoria, accused Vinod @ Choti had thrown his knife in the gali and fled away. As per prosecution version, the said knife was produced before the investigating officer, SI Vijay Kumar, by PW Pritam Indoria. But prosecution failed to bring him in the witness box. In this regard, the testimony of PW3 and PW13 are relevant.
25. PW Pritam Indoria in his statement Ex.PW13/A made before the SI Vijay Kumar stated that accused Vinod @ Chotti had fled away from the spot after throwing his knife on the road. However, PW3 in his deposition nowhere testified that accused Vinod @ Chotti had thrown his knife while fleeing from from the spot. As per prosecution version, rukka was prepared on the statement of Pritam Indoria and same was sent from the hospital to the police station at about 9 PM and in the said rukka, there is no reference about the recovery of the said knife. It means that police did not find the knife till 9 PM.
26. PW13 in his cross-examination deposed that on receipt of DD No. 22A, he reached the spot at about 6.50 PM and from there he reached the hospital by 7.30 PM and he took about 15 minutes to reach SC No. 45/08 & SC No. 26/10 Page no. 15 of 28 State vs. Vinod Chotti & others the hospital. Thus, he remained at the spot till 7.15 PM. But during the said period, he did not notice any knife at the place of occurrence or nearby. He further deposed that he remained in the hospital till 9:15/9:30 PM and thereafter, returned to the place of occurrence. On returning to the spot, he had prepared the site plan and recorded the statement of Sunita and even at that time also he did not notice the said knife. He further deposed that Pritam Indoria of his own lifted the said knife which was lying near the corner of the road and produced before him. In his cross-examination, he deposed that Pritam Indoria got recovered the knife from a little bit distance from the spot but again said that he got recovered the knife from the distance of about 8-10 steps from the spot. He further deposed that the knife was lying at the side of the road. He admitted that he had not shown the said place in the site plan Ex.PW13/C. He also admitted that he did not call public person to join the recovery proceeding of the knife but swiftly added that he had made efforts but none came forward but again failed to disclose to whom he made a request. He further deposed that Pritam Indoria had got recovered the knife within 5-10 minutes after reaching the spot. It is really astonishing that the sub-inspector of the elite police force failed to find out the knife at the place of occurrence or its nearby whereas PW Pritam Indoria a layman swiftly produced the said knife just after reaching the spot. In his cross-examination, he further admitted that Pritam Indoria did not tell him that he could get recovered the said knife from the spot despite that Pritam Indoria had produced the knife from the spot. He further admitted that when the alleged knife was recovered, no other person was present except him, his constable and Pritam Indoria. In other words, there is no independent witness of the alleged recovery. He further deposed that that Pritam Indoria himself picked up the knife and produced before him and at that time, he was standing near Pritam Indoria but did not ask Pritam Indoria not to touch the knife. He further deposed that he had examined the knife with naked eye but he did not SC No. 45/08 & SC No. 26/10 Page no. 16 of 28 State vs. Vinod Chotti & others find any finger print. He admitted that he did not apply any chemical to ascertain as to whether there was any finger print or not. He deposed that since finger prints were not visible by the naked eye, he did not summon the crime team. He admitted that when the knife was examined in FSL Rohini, no blood was found on the said knife. Thus, it becomes clear that neither any finger print of accused Vinod @ Chotti was found on the said knife nor any blood of victim was found on the said knife, thus, prosecution has miserably failed to connect the said knife with the incident in question. At last but not least that even prosecution has failed to bring Pritam Indoria in the witness box who allegedly produced the knife before the investigating officer. In other words, the alleged recovery of knife is not proved by the prosecution. Moreover, the alleged recovery is not helpful to the prosecution in any manner to prove the culpability of any of the accused persons.
Beating injury:
27. PW3 in his examination-in-chief deposed that before stabbing in his abdomen, accused persons had beaten him with legs and fists and thereafter accused Vinod @ Chotti had stabbed in his abdomen. PW3 was got admitted in the hospital vide MLC Ex.PW10/B. Perusal of the MLC reveals that he had not sustained any other injury except the stab injury in his abdomen. Thus, the testimony of PW3 to the extent that he was beaten by fists and legs by the accused persons is not corroborated by the medical record which may strengthen the defence version that they had been falsely implicated in this case.
Blood stained clothes:
28. The prosecution case is that when accused Vinod @ Chotti was arrested, blood stains were found on his clothes i.e. pant and shirt, SC No. 45/08 & SC No. 26/10 Page no. 17 of 28 State vs. Vinod Chotti & others accordingly, the same were seized by PW13 and were sent to FSL for analysis. But, no blood was found on the pant. Though human blood was found on the shirt, but the grouping of the blood could not be ascertained, thus, there is no cogent evidence to establish that the blood found on the shirt of accused Vinod @ Chotti was of injured. In these circumstances, the said evidence is not helpful to the prosecution to connect the accused Vinod @ Chotti with the commission of offence. Moreover, there is material contradiction between testimony of PW13 and PW9 constable Nirmal Singh. It is admitted case of the prosecution that PW13 had apprehended the accused Vinod @ Chotti in the presence of constable Nirmal Singh. PW9 deposed that when accused Vinod @ Chotti was apprehended, his blood stained pant and shirt were seized and at that time investigating officer had given another pant and shirt to the accused for wearing. In his cross-examination, he deposed that shirt and pant which were given to the accused Vinod @ Chotti must be with the investigating officer in his bag. Thus, as per PW9, the blood stained clothes were seized at the time of arrest and at that time investigating officer had provided another pant and shirt to the accused for wearing. But PW13 deposed that no such pant and shirt were provided to the accused. He further deposed that the blood stained pant and shirt were seized in the police station and not at the time of arrest. Thus, it is not clear when the alleged blood stained clothes were seized. Moreover, the alleged recovery is not helpful to the prosecution in any manner as prosecution has failed to establish that the blood of injured was found on the said clothes.
Testimony of PW4 and PW6:
29. PW4 Chanchal Indoria was one of the star witnesses of the prosecution as he had also witnessed the alleged incident. But he did not support the prosecution case in any manner by deposing that he had not SC No. 45/08 & SC No. 26/10 Page no. 18 of 28 State vs. Vinod Chotti & others seen the incident and he did not know who had inflicted the injury to Kamal Indoria. Thus, the testimony of PW4 is not helpful to the prosecution in any manner. PW6 was another star witness of the prosecution as she had seen the accused Dharampal, Kishore Dabla, Sanjay and Kishan along with Vinod in the gali just before the incident. But she also did not support the prosecution case by deposing that she had not seen the accused Vinod and further deposed that accused Dharampal, Kishore Dabla, Sanjay and Kishan were talking with each other while standing in the gali. Thereafter, she went inside the house and did not know what happened thereafter. Thus, her testimony is also not helpful to the prosecution to prove the guilt of the accused persons.
Conduct of Pritam Indoria:
30. Testimony of PW11 is helpful to demonstrate how the narrator of FIR Pritam Indoria co-operated with the police officials. PW11 inspector Sanjay Kumar in his cross-examination deposed that he had sent a notice to Pritam Indoria asking him to join the investigation but he failed to appear. Thereafter, he deputed constable Sanjay to serve a notice upon complainant Pritam Indoria but he not only refused to take notice but also misbehaved with the said constable. He further deposed that constable Sanjay told him that when he visited to serve the notice, Pritam Indoria had consulted with Raj Kumar Indoria and thereafter he refused to take the notice and also misbehaved with him. Constable Sanjay had recorded the entire incident in the rojnamcha register by making entry. On the basis of his report, a report was made to the senior police officer with a request to file a complaint under Section 195 Cr. P.C. against Pritam Indoria. This reflects how the complainant was treating the police officials and how he was co-operating in the investigation.
Accused Kishore Dabla:
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31. The prosecution case is that accused Kishore Dabla was one of the assailants whereas defence version is that accused Kishore Dabla was in Gorakhpur and Lucknow at the relevant point of time and in order to prove his innocence, accused Kishore Dabla has examined as many as five witnesses i.e. DW12 to DW16 besides himself as DW5.
32. In his testimony DW5 Kishore Dabla categorically deposed that injured Kamal Indoria had previous enmity with him and further deposed that he had made several complaints to the Commissioner of Police. He further deposed that he had been falsely implicated in this case as he was not present in Delhi at the time of incident as he had gone to Gorakhpur on June 21, 2008 in connection with his business and he had filed the copy of rail ticket (Ex.DW5/4). He also filed the retiring room ticket (Ex.DW5/5) to prove that he had stayed in the retiring room on June 22, 2008 at Gorakhpur Railway Station. He further deposed that from Gorakhpur, he went to Lucknow and also filed the rail ticket in this regard, which is Ex.DW5/6. He also filed the copy of the hotel bill where he had stayed in Lucknow and the bill is exhibited as Ex.DW5/7. He had also filed the returning ticket and same is Ex.PW5/8. He further deposed that his friend Dinesh accompanied him during the said tour.
33. Accused Kishore Dabla also examined Dinesh Kumar as DW12 who corroborated the testimony of DW5 and further deposed that they left from Lucknow on June 24, 2008 and reached New Delhi on June 25, 2008 at about 6 AM and at the time of getting down he had removed the reservation chart pasted outside the coach and supplied the same to the investigating officer SI Suresh Kumar. The copy of the said chart is marked Ex.PW12/A. Perusal of the said chart reveals that the name of accused Kishore Dabla and Dinesh Kumar reflected in the said chart.
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34. Accused Kishore Dabla also examined DW13 to DW16, businessmen at Gorakhpur to whom he had visited in Gorakhpur and they all categorically deposed that accused Kishore Dabla visited their shops on June 22, 2008 and he further told them that he would left for Lucknow on June 23, 2008. Though, all the witnesses were cross- examined by the learned Additional Public Prosecutor, but nothing could be extracted during their cross-examination which may cause any dent in their testimony. Moreover, their testimonies are also corroborated by PW14 HC Yashpal who deposed that he and SI Rajbir were sent to Gorakhpur and Lucknow to verify the alibi plea taken by the accused Kishore Dabla. He admitted in his cross-examination that during investigation it was revealed that at the time of incident accused Kishore Dabla was in Gorakhpur and Lucknow in connection with his business and in order to verify the same, he along with HC Sanjay and SI Rajbir were sent Gorakhpur and Lucknow. But surprisingly in his cross- examination, he deposed that he did not remember whether he had recorded the report of his visit in the rojnamcha or not and further deposed that he also did not remember that whether he submitted his report to inspector Suresh Kumar or not. He further stated that he also did not remember whether investigating officer had recorded his statement in this regard or not. From his testimony, it becomes clear that investigating officer deputed PW14 HC Yashpal, HC Sanjay and SI Rajbir to verify the plea of alibi taken by accused Kishore Dabla. Accordingly, the police team visited Gorakhpur and Lucknow. But surprisingly, investigating officer had not placed their report on record. But simultaneously investigating officer did not recite in the chargesheet that accused Kishore Dabla had not visited Gorakhpur and Lucknow on the said dates. It is admitted case of the prosecution that investigating officer had not arrested the accused Kishore Dabla. Had the investigating officer not found any substance in the plea taken by the accused Kishore Dabla, SC No. 45/08 & SC No. 26/10 Page no. 21 of 28 State vs. Vinod Chotti & others he would have arrested him also but he did not arrest him, this further corroborates the defence version that accused Kishore Dabla was not in Delhi at the time of incident.
35. Considering all these facts, I am of the view that there is no reason to disbelieve the testimony of DW5, DW12 to DW16 and the documents relied by the accused Kishore Dabla, which corroborate their testimony that accused Kishore Dabla was not in Delhi during the period June 21, 2008 to June 23, 2008. In other words, it becomes clear that injured PW3 Kamal Indoria had deliberately made a false deposition against accused Kishore Dabla by deposing that he was one of the assailants.
Accused Dharampal, Sanjay and Kishan:
36. The prosecution case is that Dharampal along with others had provoked accused Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan whereas the defence version is that neither accused Dharampal nor his sons, namely, Sanjay and Kishan were present at the time of incident. They also took the plea that complainant and injured had implicated them falsely due to previous enmity. In order to prove their innocence, accused Dharampal examined himself as DW4 and also examined DW11 Chanderbhan.
37. DW4 in his testimony deposed that he and his sons have been falsely implicated in this case due to previous enmity. DW11 Chanderbhan deposed that on June 23, 2008, he had visited the house of accused Dharampal in connection with the marriage of his son with the daughter of Dharampal Tanwar and further deposed that he reached there at about 1 PM where the elder and younger sons and son-in-law of Dharampal met him but accused Dharampal was not present at that time.
SC No. 45/08 & SC No. 26/10 Page no. 22 of 28 State vs. Vinod Chotti & others He stayed there for about 1½ hours and thereafter returned to his house by stating that if Dharampal had any interest in making relationship, he might visit at his factory in the evening located at 25/8 Bageechi Raghunath. He further deposed that on June 23, 2008, Dharampal along with his two sons i.e present accused and his son-in-law came to his factory to see his son for the purpose of marriage. He deposed that they had visited his factory in the evening and stayed there till 8/8.30 PM.
38. Though the witness was examined at length, but nothing could be extracted during his cross-examination which may cause dent in his testimony. However, in his cross-examination he admitted that the marriage talk could not be materialized as the name of accused was appeared in the present case. Thus, it cannot be said that DW11 had deposed falsely to save his relatives. It is pertinent to state that the defence witnesses are as reliable as prosecution witnesses and their testimony cannot be discarded mere on the ground that they have been produced by the accused. In the instant case, prosecution has failed to lead any evidence except injured to establish that accused were present at the place of occurrence. Indisputably, the relationship between both the parties were not cordial since long, in these circumstances, false implication cannot be ruled out. Considering all these facts, I do not find any reason to disbelieve the testimony of DW11. Thus, the testimony of PW3 to the extent that accused Dharampal had provoked other accused persons including accused Sanjay and Kishan and thereafter accused Sanjay and Kishan also assaulted him does not inspire any confidence.
Accused Surender:
39. The prosecution case is that accused Surender along with others had provoked accused Vinod @ Chotti, Kishore Dabla, Sanjay and Kishan whereas defence version is that he was not present at the SC No. 45/08 & SC No. 26/10 Page no. 23 of 28 State vs. Vinod Chotti & others place of occurrence as he was sent to Vasant Kunj by PW10 Naresh Chand Goel for some personal work. PW 10 Naresh Chand Goel is the DRM posted at Firozpur Division and at the time of incident he was working as Chief Commercial Manager (General) in Northern Railways, thus, PW10 is the responsible officer of Indian Railway. He categorically deposed that on June 23, 2008 at 4.30 PM, he had made a call to accused Surender on his mobile phone for personal work and asked him to meet him. Accordingly, accused Surender met him near reservation office at Chemsford Road between 6:00/6:30 PM. He sent him to Vasant Kunj at the residence of his sister, who is residing at C-9/9145 for some personal work. Accordingly, accused Surender visited the house of his sister and performed the assigned job. He further deposed that he had confirmed about the same from his sister. In his cross-examination, he deposed that he remembered the said date as crime branch official had visited his office to make inquiry about the accused Surender Kumar and he had told all these facts to the police.
40. In this regard, the testimony of PW12 is also relevant who initially deposed that he had arrested accused Surender at the pointing out of Laxman Indoria but when the attention of witness is drawn towards the statement of Raj Kumar Indoria recorded under Section 161 Cr. P.C., he deposed that accused was arrested at the pointing out of Raj Kumar Indoria and not at the pointing out of Laxman Indoria. Indisputably, the prosecution neither examined Laxman Indoria nor Raj Kumar Indoria. Thus, no reliance can be placed on the testimony of PW12 that he had arrested the accused at the pointing out of Raj Kumar Indoria. As already stated that PW3 Kamal Indoria had not attributed any role to accused Surender except that he had provoked the other accused persons. As already discussed that PW10 Naresh Chand Goel categorically deposed that accused Surender Kumar met him on June 23, 2008 between 6:/6:30 PM and thereafter he sent him to Vasant Kunj SC No. 45/08 & SC No. 26/10 Page no. 24 of 28 State vs. Vinod Chotti & others for some personal work. In the absence of any concrete evidence, the presence of accused Surender Kumar becomes doubtful. Thus, in my opinion, in the absence of any other cogent evidence, it would not be safe to rely upon the uncorroborated testimony of PW3 Kamal Indoria.
Accused Zile Singh:
41. The prosecution case is that accused Zile Singh along with others had provoked the accused persons and thereafter fled away whereas defence version is that accused Zile Singh had been falsely implicated due to previous enmity and he was present in the meeting of Akhil Bhartiya Dhanak Samaj during the period from 3 PM to 7.30 PM on June 23, 2008. In order to prove his innocence, he has examined DW6 to DW9 besides himself as DW2.
42. DW6 to DW9 in their testimony categorically deposed that accused Zile Singh was General Secretary in Akhil Bhartiya Dhanak Samaj. They further deposed that he was present in the meeting of said Samaj on June 23, 2008 from 3 PM to 7.30 PM. No doubt, during trial, the accused/witnesses failed to produce the minutes book of the said meeting to show that accused Zile Singh was present during the said meeting but mere the fact that no documentary evidence has been produced is not sufficient to discard the oral testimony especially when the prosecution has also failed to produce any cogent evidence to establish the presence of accused Zile Singh at the place of occurrence. Indisputably, accused Zile Singh was not arrested by the police for want of sufficient evidence, which corroborates the defence version. Had the accused Zile Singh be present at the spot, investigating officer would have arrested him. But on the converse, in the supplementary chargesheet, investigating officer had mentioned that during investigation not only the accused but the witnesses also corroborated the presence of SC No. 45/08 & SC No. 26/10 Page no. 25 of 28 State vs. Vinod Chotti & others accused persons at different places at the relevant time. In these circumstances, the testimony of PW3 to the extent that accused Zile Singh provoked other accused persons does not inspire any confidence.
Ram Chander Khangwal:
43. The prosecution case is that accused Ram Chander Khangwal had also provoked the accused persons along with his associates and fled away whereas defence case is that accused had been falsely implicated due to previous enmity. In order to prove his innocence, accused examined himself as DW1. In his testimony, DW1 categorical deposed on December 24, 2005, Raj Kumar Indoria, Kamal Indoria and his nephew had given merciless beating to him, accordingly, he had lodged an FIR No. 579/2005 under Section 323/341 IPC at PS NDLS and thereafter, accused persons had threatened him to withdraw the said FIR, accordingly, he made a complaint to the Commissioner of Police vide Ex.DW1/A. Thereafter, he again made a complaint on February 01, 2006 to the Commissioner of Police vide Ex.DW1/B and also filed a writ petition before the Hon'ble High Court of Delhi. From his testimony, it becomes clear that relations between accused and complainant party were not cordial. During investigation, investigating officer also did not find any evidence to corroborate the allegation of complainant. On the converse, during investigation, he did not find sufficient evidence against accused Ram Chander Khangwal and accordingly, he had mentioned his name in column No. 11 and did not arrest him. Had there been any evidence, investigating officer would have arrested him also. During trial, prosecution has failed to produce any other cogent evidence to show the presence of accused at the place of occurrence despite the fact that alleged incidence had taken place in the densely populated residential colony. In the absence of any concrete evidence, I am of the opinion that it would not be safe to rely upon the SC No. 45/08 & SC No. 26/10 Page no. 26 of 28 State vs. Vinod Chotti & others uncorroborated testimony of PW3 Kamal Indoria.
Accused Vinod @ Chotti:
44. The prosecution case is that accused Vinod @ Chotti had stabbed PW3 Kamal Indoria whereas defence version is that he had been falsely implicated due to previous enmity. It is pertinent to state that the accused Vinod failed to produce any evidence in support of his plea.
45. During trial prosecution has adduced three evidences against accused Vinod @ Chotti (i) recovery of blood stained knife, (ii) blood stains were found on the clothes of accused, (iii) the statement of injured i.e. PW3 Kamal Indoria. As already discussed that not only the recovery of knife is doubtful but prosecution has also failed to connect the knife with the commission of crime. Similarly, prosecution has also failed to prove that the blood found on the shirt of accused Vinod @ Chotti was of injured. Thus, the recovery of alleged blood stained shirt is not helpful to the prosecution to prove the culpability of accused.
46. The prosecution case was that the alleged recovered knife was given to accused Vinod by Dharamvir @ Sonu in the presence of PW4 Chanchal Indoria cousin of PW3 but he turned hostile completely and did not support the prosecution case in any manner. Similarly, the prosecution case was that PW6 Kavita Dabla, close relatives of injured had seen Vinod @ Chotti in the gali just before the incident, she also did not support the prosecution case by deposing that she had not seen accused Vinod @ Chotti in the gali just before the incident. Thus, there is no other evidence except the testimony of PW3 on record even to prove the presence of accused Vinod @ Chotti at the place of occurrence.
47. Now coming to the testimony of injured PW3 Kamal Indoria. PW3 had made allegations against as many as 8 persons and as already SC No. 45/08 & SC No. 26/10 Page no. 27 of 28 State vs. Vinod Chotti & others discussed the testimony of PW3 qua seven accused persons is either false or does not inspire any confidence. In these circumstances, I am of view that it would have safe to rely upon his uncorroborated testimony particularly when there was previous enmity between the parties and prosecution has also failed to connect the recovered knife either with the accused or with the incident and also failed to connect blood stains found on the shirt of accused with the blood of injured. Since, there is no other evidence against accused Vinod @ Chotti, in my view, he is entitled for benefit of doubt.
Conclusion:
48. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to prove the guilt of accused Dharamvir @ Sonu and Kishore Dabla miserably and qua other accused persons prosecution has failed to prove its case beyond the shadow of all reasonable doubts, thus, I hereby acquit all the accused persons from all the charges.
Announced in the open Court on this 26th day of April, 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC/DELHI SC No. 45/08 & SC No. 26/10 Page no. 28 of 28