Delhi District Court
State vs Accused on 27 September, 2012
IN THE COURT OF DR. T.R. NAVAL ,ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI SC NO.52/10 Date of Institution :16.09.2008 FIR No.133/08 Date of Argument :27.09.2012 PS Mayur Vihar Date of Order :27.09.2012 U/S 307/34IPC Unique Case I.D. No.02402R0089382010 State Versus Accused 1. Vikram @ Vicky S/o Raghuveer Singh R/o 30/471, Trilok Puri, Delhi. 2. Irfan S/o Ismile R/o 15/360, Trilok Puri, Delhi. 3. Lal Chand @ Lala S/o Sidh Nath R/o Gali No.9, H.No. 149, Old Ismilpur, Ajay Nagar, Faridabad, Haryana. JUDGMENT
The facts in brief of the prosecution case are that on 27.04.2008 an intimation was received at P.S. Mayur Vihar that four boys on two motorcycles escaped after firing at premises No. 33/239, Trilok Puri. Police arrived at the spot and recorded statement of Prem, who alleged that on that day at about 11.30 p.m., he was standing at a distance of 40 steps from his house near temple with Rakesh and Sonu and he saw SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 1 of 11 that two motorcycles stopped near his house. Four boys after seeing here and there went near the office adjoining to his house and two of them fired one round each at his office. All of them escaped. While they were absconding from the spot he saw them. One motorcycle was being driven by a boy and pillion rider was Irfan. Another motorcycle was being driven by Lala @ Lal Chand and Vicky was pillion rider on the motorcycle. When he arrived at his office he saw that his brother Naresh was scared. Police was informed at number 100 and his statement was recorded. Investigating Officer made his endorsement and got FIR No. 133/08 u/s 336/34 IPC recorded. Investigating Officer inspected the scene of occurrence and prepared site plan and used cartridge was picked up and converted into a pulinda. The same was sealed with the seal of GLK and seal after use was handed over to Ct. Harmender. Cartridge was seized after preparation of sketch. On 05.5.2008 accused Vikram @ Vicky and Irfan were arrested. Their arrest memo and personal search memo were prepared. They made disclosure statements which were recorded. Accused Lal Chand @ Lala was arrested on 10.05.2008. The fourth accused could not be arrested as neither his name and particulars were known to the witnesses nor these were told to the Investigating Officer. Investigating Officer collected photographs of the scene of occurrence and recorded statements of witnesses and on completion of investigation charge sheet against accused Vikram @ Vicky, Irfan and Lal Chand @ Lala for their trial for the offence SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 2 of 11 punishable u/s 307/34 was filed.
2. Ld. Magistrate after supplying of copies of charge sheet and documents to the accused persons committed this case to the court of sessions and the case was assigned to this court.
3. My Ld. Predecessor vide his order dated 24.01.2011 was of the opinion that prima facie there was sufficient material to frame charge against the accused persons for the offence punishable u/s 307/34 IPC so the charge against the accused persons for said offence was framed and read over to them in vernacular language. Accused persons pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined Sh. Naresh as PW1; HC Fateh Mohd. as PW2; Sh. Prem Pal, complainant as PW3; Ct. Ravinder as PW4; HC Harender as PW5; SI Girdhari Lal as PW6 and Insp. Rajesh Sinha as PW7.
5. After closing of prosecution evidence statements of the accused persons were recorded u/s 313 Cr.P.C. They denied prosecution evidence. Accused opted not to lead evidence in their defence.
6. After closing of evidence by both the parties, I have SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 3 of 11 heard arguments addressed by Ld. Counsel for accused persons and Ld. Addl. Public Prosecutor for the State and perused file.
7. On perusal of charge sheet and other documents, on examination and analyzing of evidence on record and on considering the arguments, I have formed my opinions which are discussed herein below in this order.
8. It has been argued on behalf of Ld. Defence Counsel that prosecution has failed to prove its case as statement of PW1 is not consistent reliable and trustworthy and PW2 and material eye witness did not corroborate the testimony of PW1. Other witnesses are of formal nature.
9. On the other hand, it has been argued on behalf of the Ld. Addl. Public Prosecutor that prosecution has proved its case by reliable and trustworthy witnesses. The conviction of the accused can be based even on the sole testimony of the PW1.
10. Ld. Addl. Public Prosecutor relied on a case Pardeep @ Sonu v. State, 2011 [2] JCC 1031. The Delhi High Court observed that:
"28. This is no more res Integra that conviction for offence under Section 376 of IPC can be based on the sole testimony of a victim as was held in State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384; and in State of Maharashtra Vs. SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 4 of 11 Chandraprakash Kewal Chand Jain, (1990) 1 SCC 550.
However, the testimony of the victim in such cases is very vital and should be without inconsistencies and should not be improbable, unless there are compelling reasons which necessitate looking for corroboration of her statement and the Court finds it difficult to act on the sole testimony of victim of sexual assault to convict an accused." [Emphasis supplied]
11. On perusal of file and analyzing the evidence as well as considering the rival contentions made by Ld. Additional Public Prosecutor for the state and Ld. Defence Counsel for the accused persons, I come to the conclusion that prosecution has failed to prove its case against the accused persons beyond any reasonable suspicion and shadow of doubt. The reasons which support my decision are firstly, material eye witness of the prosecution, namely, PW3 did not support the prosecution case. He, inter alia, stated that on 27.04.2008 at about 11:30 p.m., he was standing near a Mandir situated at a distance of about 40 steps from his house alongwith Rakesh and Sonu and he was talking with them. At that time he saw that two motorcycles stopped at a distance of 10-15 steps from his house. Two persons were sitting on each motorcycle and they reached in front of office made in his house. The persons sitting on the back side of the motorcycle fired towards his office and, therefore, they escaped on the motorcycle after passing before him. He could not stop them as speed of their motorcycles was very fast. All the four accused persons were wearing helmets and SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 5 of 11 therefore, he could not see their faces. He rushed to the office at his house. His brother Naresh Gupta was present there. He made call to police on number 100 from his mobile. Police arrived at the spot and made inquiries. Police inspected the spot and conducted investigation and recorded his statement Ex.PW3/A. He further deposed that he was unable to identify the accused persons who had fired on that date as he could not see their faces because of helmets. He was declared hostile and cross examined by Ld. Additional Public Prosecutor for State. Even then he did not support the prosecution case and denied the suggestion that accused Irfan was sitting on one one motorcycle and he had fired and on another motorcycle Vikram and Lala @ Lal Chand came and fired at his office. He also denied the suggestion that accused Vikram and Irfan were arrested by the police on his identification. Thus, the star witness of the prosecution has failed to prove its case.
12. Secondly, PW1 deposed that he did not remember the date, time and month but about 4 years ago he was sitting in his office at 33/239, Trilok Puri. At about 11.30 p.m. he was taking food. At that time four boys came outside on two motorcycles. Accused Irfan and one another boy, who was not present in court, were sitting on one motorcycle and other two accused persons, present in the court were sitting on second motorcycle and one of them was Lala. Accused Irfan had fired towards him by a pistol/katta. One another bullet SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 6 of 11 was also fired towards him by one of the other accused person whose name he could not recollect. He immediately sat down behind the table and after few moment he stood and found that accused persons had gone from there. He did not sustain injuries. However, a hole was caused in the glass fixed on the front side of his office and one another hole was caused in the wooden door of the office. His brother Prem had informed the police at number 100. Police arrived there and made inquiries and recorded his statement and statement of his brother. At the request of Ld. Addl. Public Prosecutor he was allowed to put leading questions. Accused deposed that accused Vikky was also present with accused Lala. In cross examination, he admitted that all the four boys who were sitting on the motorcycle were wearing helmet. There was no light outside his office. The distance between the place where he was sitting and the place where motorcycles were stopped was about 30-40 steps. He did not remember make and colour of said motorcycles. He saw the culprit after they had fired towards him in his office. Thereafter, the accused persons had left the spot. He also admitted that he did not know, if accused Lal Chand @ Lala was Bad Character of the area and he was falsely implicated at his instance. He further admitted that he did not see the accused persons, present in the court, on the spot, on that date firing on him. Thus, the testimony of PW1 complainant is inconsistent and self contradictory. Therefore, it is highly unsafe to act upon the testimony of such unreliable and untrustworthy witness. Thus, SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 7 of 11 the principles of law laid down in case Pardeep @ Sonu v. State, (supra), will not provide any benefit to the prosecution.
13. Thirdly, section 114 (g) of Indian Evidence Act provides that:
114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume-- ***
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; ***"
14. Turning to the present case, PW3 in his statement deposed that he was standing with Rakesh & Sonu. The prosecution has failed to interrogate, record their statements and produced them in the present case for supporting its case. As per provisions of Section 114(g) of Indian Evidence Act, adverse inference may be drawn against the prosecution and in favour of the accused persons that their testimonies, had these been recorded, these were unfavourable to the prosecution. This has further created doubt about the truthfulness of the prosecution case.
15. Fourthly, although the Investigation Officer recorded disclosure statement of accused Irfan Ex.PW6/J and accused Vikram @ Vikky as Ex.PW6/I but these are not SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 8 of 11 admissible in evidence in view of provisions of Section 25 & 26 of the Indian Evidence Act as these statements were made before the police officials and nothing was recovered consequent upon these disclosure statements. Non recovery of pistol, katta, motorcycle have further demolished the case of the prosecution.
16. Fifthly, the testimony of other PWs i.e. PW2 who proved copy of FIR as Ex.PW2/B; PW4 Ct. Ravinder who made the search of accused persons after their arrest; PW5 HC Harender who took the rukka for registration of case; PW6 who recorded statement of complainant and investigated the case; Inspector Rajesh Sinha who inspected the site and prepared site plan and seized bullet are only witness of formal nature. Their testimonies in the absence of testimony of complainant and eye witnesses, will not provide any benefit to the prosecution.
17. My attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in above case are applicable on the facts of present case and therefore, it is held that SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 9 of 11 accused persons are entitled to get benefit of doubt as in the present case two views, one, leads to their innocence and another leads to their involvement in the crime are possible.
18. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminals may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused persons are given benefit of doubt as the prosecution has failed to prove its case against them beyond any suspicion or reasonable shadow of doubt.
CONCLUSIONS
19. Consequent upon the above discussion, reasons and evidence on record and particularly discussed here in above, it is held that prosecution has failed to prove its case against the accused namely Vikram @ Vicky, Irfan and Lal Chand @ Lala, beyond any reasonable suspicion or shadow of doubt that they attempted to kill Naresh @ David. Therefore, accused persons are entitled for getting benefit of doubt. Accordingly, by giving them benefit of doubt, accused persons are acquitted for the offence of attempt to commit murder punishable under section u/s 307/34 IPC.
20. However, all the three accused persons are directed to furnish their personal bonds for a sum of Rs.
SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 10 of 1110,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring their presence before the Appellate Court.
21. After furnishing of bail/surety bonds, file be consigned to Record Room.
Announced in the Open Court Dated:27.09.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02, East, Karkardooma Courts, Delhi SC No.52/10 State Vs. Vikram @ Vicky & Ors. Page 11 of 11