Delhi District Court
State vs 1. Vikram Verma @ Vicky on 22 March, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 179/10
State Vs 1. Vikram Verma @ Vicky
S/o Shri Baldev Raj Verma
R/o H.No. 16/245, Sangam Vihar,
New Delhi.
2. Ajay Kumar @ Nicky
S/o Shri Vinod Kumar
R/o Peepal Wali Gali,
Gali No. 1, Palla,
Sector 37, Faridabad (Haryana).
FIR No : 263/10
P.S. : Okhla Industrial Area
U/s. : U/s 307/326/34 IPC
DATE OF INSTITUTION : 06.12.2010
JUDGMENT RESERVED ON : 22.03.2012
DATE OF DECISION : 22.03.2012
JUDGMENT:
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 1 of 15)
1. Prosecution case in brief is that on receiving DD no.31A dated 13.07.2010 recorded at around 3.50 am in the night regarding the stabbing injury to one Mohd. Kalim, SI Rishi Om Bhardwaj alongwith Ct. Amit reached the Holy Family hospital where the injured was found to be in operation theatre and was declared unfit for statement by the doctor. Further, no eye witness was found in the hospital. Thereafter, one Kanhaiya who brought injured to hospital was called on telephone but he could not clarify the place of occurrence. On the basis of circumstances and MLR, rukka was prepared and FIR u/s 324 IPC was registered.
2. During investigation, the clothes of the injured were seized from the hospital and further statement of injured was recorded on 14.07.2010. Injured Mohd. Kamil in his statement alleged that on the night of 12/13.07.2010, he went to meet his friend Kamal at Govind Puri and when he was coming back at around 1 pm but could not get any auto on main road then started walking to his house via railway line. When he crossed the railway line, then 3 boys started following and abused him and started beating him and when he asked them why they are abusing then one of the boys had hit him with knife and other boy had caught hold of him, thereafter he chased them for 1520 steps and sat around after 100 steps near metro pul and further found the knife suspended on the injury suffered by him, thereafter one motorcycle State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 2 of 15) person had took him to the Holy Family Hospital. He further alleged that the age of the boys might be around 1825 years and can identify them on apprehension. Pursuant to recording of his statement, the site plan was prepared at the instance of the injured.
3. During pending investigation one accused Vikram Verma @ Vicky was arrested u/s 41.1 Cr.P.C at PS Sangam Vihar on 26.07.2010 who disclosed that 1213 days back he alongwith his friend Ajay Kumar @ Nicky and Vijay @ Vicky have stopped one person for snatching money. He and Vijay caught hold of him and Ajay @ Nicky inflicted injuries with sharp object and thereafter all the three ran away from that place. This accused had refused TIP proceedings and further NBW's were taken against accused Ajay and Vijay and on same day accused Ajay @ Nicky was arrested who also refused to join the TIP proceedings. On 15.09.2010 Vijay @ Vicky was declared PO and a chargesheet u/s 326/307/34 IPC was filed against the accused persons.
4. On committal charges u/s 326/307/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial.
5. Prosecution for substantiating charge examined 12 prosecution witnesses. Injured Mohd. Kalim is examined as PW3. Summary details of their deposition is as follows.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 3 of 15) Deposition of injured witness PW3 (complainant) and other public witnesses:
6. PW3 Mohd. Kalim deposed that on the night of 12/13.07.2010 when he was coming from his friend's house, he could not get the auto and coming on foot and when he reached near railway phatak 3 boys standing there asked him to stop and when he did not stop, two caught hold of him and third stabbed him and after some time he managed to free himself and ran towards motorcycle and thereafter motorcycle person dropped him to Holy Family hospital. In hospital he became unconscious. He got discharged from hospital on 16.07.2010 and accompanied police to the spot. Witness correctly identified accused Ajay who is present in the court but denied identity of accused Vikram. On being declared hostile in cross examination by Addl. PP he deposed that it is correct that on 17.07.2010 he accompanied IO to spot and IO prepared site plan at his instance.
7. In cross examination on behalf of accused Ajay he deposed that accused Ajay stabbed him from behind and other two accused caught hold of him and police recorded his statement on day of incident and 23 times thereafter. He further deposed that when accused was arrested he was called in PS but he did not go there as he was in injured condition and police had shown some photographs on mobile phone however those were not accused persons who committed State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 4 of 15) offence. He further deposed that it is correct that he had taken beer on that night but denied suggestion that he was not in his senses. He further denied suggestions that he demanded money from accused when he refused, then he identified him in court. This witness was cross examined only on behalf of accused Ajay as counsel for accused Vikram was not present. The cross examination is not done on behalf of accused Vikram. Thereafter an application u/s 311 Cr.P.C was filed on behalf of accused Vikram for recalling this witness. On further cross examination he deposed that at the time of incident, he was drunk but he could not identify the person who caused injury and present accused persons had not inflicted injuries to him.
8. PW1 Kanhaiya Mishra deposed that he admitted the injured Mohd. Kalim in Holy Family hospital and waited in hospital till police came and police recorded his statement in the hospital and in morning he shown the police the place from where he lifted the injured. In cross examination he stated that he do not know who stabbed injured and met injured at around 1.30 am on 12/13.07.2010.
9. PW6 Ms. Prabha Mathew handed over one sealed parcel containing knife to police official and the said knife had been taken out after operation of injured Mohd. Kalim.
Deposition of doctors:
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 5 of 15)
10. PW9 Dr. Amit Kumar deposed that on 14.07.2010 injured mohd. Kalim was admitted in surgical ward at hospital and he declared injured fit for statement on application by IO and Dr. Priyadarishni prepared MLC of injured as per MLC the injured was having stab injury on right chest and nature of injury are grievous in nature.
11. PW10 Dr. Mala Saini deposed that the MLC of injured was prepared by Dr. Priyadarshini and she has left the hospital and her whereabouts are not known. And she can identify her handwriting and signature in official capacity as she worked with Dr. Priyadarshini. Deposition of Police officials:
12. PW2 HC Satender Kumar recorded FIR. PW4 ASI Ranpal Singh arrest accused Vikram Verma on 25.07.2010 upon secret information u/s 41.1 Cr.P.C and recorded his disclosure statement and he admitted the commission of offence in present FIR and accused was caught hold alongwith motorcycle carrying fake number plate.
13. PW5 Ct. Amit deposed that on 13.07.2010 IO seized medical exahibits of injured Mohd. Kalim from Holy Family hospital in his presence.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 6 of 15)
14. PW7 Ct. Brij Mohan deposed that on 31.07.2010 while patrolling in the area at about 4 pm he met SI Rishi Ram and joined him in investigation in the meantime a secret informer came and disclosed IO that accused Ajay Kumar would be coming to meet his friend in gali at New Sanjay Camp and thereafter nakabandi of gali was done and 34 passersby were asked to join raiding party but all refused and at around 4.20 pm on signal of secret informer, accused was apprehended. He was arrested and his personal search also conducted and his disclosure statement was also recorded. Thereafter accused Ajay pointed out place of occurrence. In cross examination on behalf of accused Ajay he deposed that secret informer was talking to IO in his presence and IO had not given notice to public persons who refused to join the proceedings. And all the documents were prepared at the spot and thereafter at around 4 am took them to railway line and no public person was joined at that time. And thereafter again accused was brought to Sanjay camp at around 5.30 pm and IO prepared the documents and face of accused was covered with cloth as his TIP was to be conducted.
15. PW8 Ct. Omkar Singh deposed that on 25.07.2010 accused Vikram Verma was apprehended on checking of vehicles as he came on motorcycle and during inquiry he was found using fake number plate on the motorcycle and in his disclosure statement he confessed several incidents.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 7 of 15)
16. PW11 IO SI Rishi Om Bhardwaj deposed that on receiving DD no. 31A on the night of 12/13.07.2010 he reached the hospital and collected MLC of the injured and further staff nurse handed over two sealed pulandas containing tshirt and jeans of the injured and another sealed pulanda was handed over by Prabha Mathew containing knife and injured was found to be in operation theatre. He called on Kanhaiya on telephone who brought injured to hospital and thereafter Kanhaiya took him to place from where injured was brought to hospital. Thereafter on 14.07.2010 he recorded the statement of injured in hospital and on 17.07.2010 after discharge from hospital injured took them to place of occurrence and at his instance site plan was prepared. And on 26.07.2010 accused Vikram Verma was apprehended in some other case and thereafter he was arrested in present case. He further deposed that on 26.07.2010 accused Vikram Verma refused to participate in TIP and on 31.07.2010 when he was on patrolling duty he met secret informer. And at his instance accused Ajay Kumar was apprehended and arrested and he was directed to remain in muffled face and further his disclosure statement was also recorded and he pointed out place of occurrence . He further deposed that accused Ajay also refused TIP proceedings conducted before the trial court.
17. PW12 Sh Devender Kumar Jhangala conducted TIP proceedings of both accused but both refused to join TIP proceedings.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 8 of 15)
18. Both accused denied all the incriminating circumstances put to them in statement u/s 313 Cr.P.C and not opted to lead defence evidence as shown to witnesses.
Material Exhibits:
19. Ex.PW11/A is DD no. 31A regarding information of stab injury pursuant to which rukka Ex.PW11/B was prepared and FIR Ex. PW2/A was registered. Ex. PW6/A is seizure memo of pulanda knife handed over by PW6 Prabha Mathew. Ex.PW5/A is seizure memo of clothes handed over by duty staff nurse at hospital. Ex.PW11/C is site plan of the spot. Ex. PW4/A is the disclosure statement of accused Vikram Verma recorded in DD no. 35B dated 25.07.2010 u/s 41.1D Cr.P.C PS OIA.
20. Ex. PW9/C is the MLC of injured Mohd. Kalim and as per MLC injured suffered grievous stab injuries. Ex.PW7/C is disclosure statement of accused Ajay Kumar. Ex. PW7/A is arrest memo of accused Ajay kumar, Ex. PW11/E is first arrest memo of accused Vikram Verma and Ex. PW11/F is arrest memo prepared after re arresting the accused on converting the offence u/s 324 to 326 IPC. Ex.PW11/J and Ex.PW11/L are TIP proceedings of accused in which State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 9 of 15) they refused to participate.
21. Ld. counsel for the accused submitted that PW3 main injured witness had not identified both the accused in the court and there is no other incriminating circumstance against the accused persons connecting accused with the said offence.
22. Ld. Addl. PP on the other hand submitted that PW3 have identified accused Ajay in his statement before the court but has resiled from that statement after being recalled u/s 311 Cr.P.C and that part of cross examination cannot be relied upon. Addl. PP further submitted that accused persons denied to participate in the TIP proceedings thus an adverse inference to be drawn against accused persons. Ld. Addl. PP submits that prosecution case on all the aspects i.e, relating to the incident, taking of injured to hospital, receiving of grievous injuries by accused in said incident stood proved beyond reasonable doubt.
23. Arguments heard. Record perused.
24. The entire prosecution case dependent upon the sole testimony of PW3 injured Mohd. Kalim and there are no other incriminating circumstances against accused connecting them with commission of said crime.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 10 of 15)
25. PW3 Injured Mohd. Kalim in his testimony stated that when on said night he was coming back from his friend's house, he saw three boys standing near railway phatak who asked him to stop but when he did not stop then two boys caught hold of him and third stabbed him on vest and somehow he freed himself from them and ran towards a motorcycle and motorcycle person dropped him in the hospital and this witness correctly identified the accused Ajay as one of the boys in his examination in chief but had not identified accused Vikram Verma and on being declared hostile by Addl. PP he again denied to identify accused Vikram.
26. This witness in examination in chief had not stated any motive why the accused persons have apprehended him. Further, could not state in examination in chief that accused Ajay had stabbed him out of the three boys.
27. However, in cross examination this witness stated that accused Ajay had stabbed him and also stated that on that night he had taken bear but was in his senses and this witness remained uncrossexamined by accused Vikram as he do not have any counsel. This witness was again recalled for cross examination on 14.03.2012 on application u/s 311 Cr.P.C for accused Vikram. In further cross examination he stated that he was drunk and could not identify the persons who inflicted injuries and present accused persons had not inflicted injuries to him.
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 11 of 15)
28. On considering overall testimony, this witness in examination in chief and also on being declared hostile had not stated that accused Ajay stabbed him, however identified accused Ajay as one of the boys who caught hold of him but in cross examination stated accused Ajay stabbed him. However, when recalled again for cross examination he not identified accused persons and stated that present accused persons had not inflicted injuries to him.
29. Ld. Addl. PP submitted the cross examination of PW3 on being recalled u/s 311 Cr.P.C cannot be considered because this witness was being influenced by the accused persons. This argument of Ld. Addl. PP appears to have some force but in present case this PW3 was recalled for cross examination from jail as he was in jail when recalled for cross examination on 14.03.2012. Even otherwise this witness in cross examination recorded first time stated that he was having bear on that day when the offence is committed and in later cross examination also stated that he was drunk and though he denied that he was not in senses, but his drunken state creates doubt over the fact whether he could be able to recollect those assailing boys especially accused Ajay who stated to have stabbed him from behind, thus, this witness do not appear to be wholly reliable witness.
30. Ld. Addl. PP also submitted that the adverse inference to be drawn State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 12 of 15) against the accused as they have refused the TIP proceedings but accused persons raised a plea that they were shown to witnesses in PS. PW3 in cross examination stated that police had recorded his statement in Holy Family hospital and also recorded his statement 23 times thereafter. This itself shows that police had called him to the PS thereafter though this is not the case of the prosecution. This witness also stated in cross examination that police had shown him some photographs on mobile phone, but those are not the photographs of the accused persons. This itself created doubt on conduct of police officials who can always show the photographs of accused persons on mobile. This witness deposition in cross examination that after the arrest of accused persons he was called at PS though he denied to have gone to PS because of injured condition. This explanation of injured do not appear to be credible because he was already discharged from hospital on 16.07.2010 and accused Ajay was arrested on 03.08.11 and accused Vikram on 26.07.2010, thus, these accused were arrested well after his discharge. This all points towards the fact that accused might be shown to the injured prior to TIP proceedings and therefore, no adverse inference could be drawn against accused for refusal of TIP proceedings.
31. However, the prosecution case appears to be completely reliable on the factum of occurrence of said incident and time and place of the incidence. Further PW1 Kanhaiya had corroborated the version of State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 13 of 15) injured Mohd. Kalim, who was found near railway phatak after injury and he took him to Holy Family hospital but this PW1 also stated that he had not seen the accused persons. Further MLC's of the injured shows that he suffered grievous injury and discharged from the hospital on 16.07.2010. However these circumstances do not connect accused with the crime.
32. Mere circumstance of arrest of accused persons and their consequent disclosures are of no value.
33. Thus on overall appreciation of evidence, PW3 do not appear to be wholly reliable witness on factum of identity of accused persons as he kept on changing his stances in examination in chief and thereafter in cross examination. Further he appears to be in drunken condition which creates doubt over his cognitive capability to remember the identity of the assailants. Further there is no motive or cause of incident explained by PW3 which also indicates that he might be in completely drunken condition. As already discussed no adverse inference over refusal for TIP proceedings by accused persons could be taken against them. Further there are no other incriminating circumstances connecting accused with commission of offence.
34. Prosecution has to prove its case beyond reasonable doubt but prosecution failed to discharge that burden. Thus, accused Vikram State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 14 of 15) Verma @ Vicky and Ajay Kumar @ Nicky are given benefit of doubt and acquitted of all charges framed against them. Previous bail bond of accused persons converted into bail bond u/s. 437A Cr.P.C and shall remain valid for 6 months from today. File be consigned to record room after due compliance.
Announced in Open Court
On 22nd March, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Vikram Verma @ Vicky etc., SC No. 179/10, (page no. 15 of 15)