Delhi District Court
Criminal Case/478/1996 on 12 October, 2011
IN THE COURT OF SHRI NARESH KUMAR LAKA
METROPOLITAN MAGISTRATE,
DWARKA DISTRICT COURTS, DELHI
F.I.R. No. 478/1996
Police Station: Najafgarh
under Section 365 and 323 read with Section 34 IPC
(a) Serial number of the case : 02403RO293882003
(b) Date of commission of the : 30/31.08.1996
offence
(c) The name of the complainant : Manoj Kumar @ Moju S/o
Sh. Jiwardas R/o H.No. 87,
Old Roshanpura, Chhawla
Bus Stand, Najafgarh
(d) The name of the accused : 1. Sanoj Kumar S/o Sh.
persons/s his parentage and Nathu Singh R/o Village
residence Paprawat Pole no. 23
2. Kaptan Singh S/o Sh.
Richpal Singh R/o Village
Paprawat Pole no. 23
3. Gajraj Singh S/o Sh.
Ratiram R/o H.No. RZ
264, New Roshan Pura,
Najafgarh
(e) The offence complained of or : Under Section 365 and 323
proved r/w Section 34 IPC
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 13.10.2011
(i) In all cases in which an appeal : A brief statement of the
lies reason for the decision as
follows:
Police case was instituted on: 31.03.1997
Arguments were advanced on: 19.09.2011
Judgment is announced on: 13.10.2011
FIR No. 478/96 P.S. Najafgarh 1 of 9
JUDGMENT
Briefly stated, the facts of the case of the prosecution are that on 3031.08.1996, accused persons abducted complainant, namely, Manoj in a TSR, caused injuries to him and thereafter dropped him near BDO Office, Najafgarh.
2. On appearance of the accused persons, a charge for the offences under Section 323 and 365 IPC read with Section 34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined following witnesses: PW1 Sh. Manoj PW2 Sh. Jiwan Das PW3 Sh. Suresh Kumar PW4 HC Subhash PW5 Sh. Deshraj PW6 Inspector Sube Singh
4. Statement of accused persons were recorded under Section 313 Cr.P.C.
5. I have heard Assistant Public Prosecutor for the State and counsel for accused persons. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
6. The prosecution examined total six witnesses. PW1 Sh. Manoj Kumar stated that he did not remember the date and time of the incident but one day in the night at about 11:30 PM, while, he was closing his hotel/dhaba, two/three persons forcibly FIR No. 478/96 P.S. Najafgarh 2 of 9 took him in a TSR and gave beatings and then dropped near BDO Office. He further deposed that he became unconscious and, as such, he cannot identify those persons. It is further stated that his brother took him to hospital when police recorded his statement Ex. PW1/A.
7. PW2 Sh. Jiwan Das deposed that he was informed about the incident from his son that complainant was beaten by some persons. He also deposed that his son told him that a quarrel took place between his son and 34 persons.
8. PW3 Sh. Suresh Kumar deposed that he did not remember the exact date when he came to bus stand where he was informed about the incident that his brother was taken away by some persons. He further deposed that he saw his brother in injured condition and took him to hospital. It is specifically stated by PW3 that he did not see the offenders and, as such, he cannot identify them.
9. PW4 HC Subhash Chand deposed that on 31.08.96, on receiving of a DD No. 71B, he alongwith SI Sube Singh reached at Chhawla bus stand where it was found that the injured was already removed to hospital by his brother. He also deposed about preparation of rukka by IO and registration of the present case through him. He also deposed that on 01.09.96, when he alongwith IO were returning after attending a call vide DD No. 17 A a secret informer informed that accused persons involved in yesterday's incident were standing at Paprawat Road. He further stated that the accused persons were arrested vide memos Ex. PW4/A to PW4/D. The TSR was seized vide memo Ex. PW4/F. FIR No. 478/96 P.S. Najafgarh 3 of 9
10. PW5 Sh. Deshraj was a formal witness who deposed that official record of MLC No. 7867 dated 31.08.96 was destroyed vide office order dated 07.11.07. PW5 did not identify the hand writing and signature of the concerned doctor who prepared the MLC.
11. PW6 SI Sube Singh corroborated the statement of PW4 and deposed that on 31.08.96, on receiving of a DD No. 71 B, regarding a quarrel, he alongwith HC Subhash Chand reached at Chhawla bus stand where it was found that injured was already removed to hospital by his brother. Then he went to DDU hospital where he recorded the statement of injured which is already proved as Ex. PW1/A. He further stated about preparation of rukka and registration of the present case. He also deposed that at the spot, he met with brother of injured, namely, Sh. Suresh and recorded his statement. PW6 further deposed that on 01.09.96, when he was returning after attending a call vide DD No. 17 A a secret informer informed that accused persons involved in yesterday's incident were standing at paprawat road and accordingly, on the basis of said information, accused persons were arrested vide memos Ex. PW4/A to PW4/D. Thereafter, PW6 got conducted the TIP of accused persons and after completion of investigation the challan was filed in the court.
DEFENCE OF ACCUSED PERSONS
12. In his statement recorded under Section 313 Cr.P.C, the accused persons denied the entire incriminating evidence put to them as regards the taking away of injured Manoj from his hotel and causing injuries to him. Accused persons also stated FIR No. 478/96 P.S. Najafgarh 4 of 9 they do not know as to why prosecution witnesses deposed against them. Accused persons further stated that they were falsely implicated in the present case and they were not present at the spot.
APPRECIATION OF EVIDENCE
13. The prosecution cited total ten witnesses in the instant case but despite giving ample opportunity, prosecution examined only six witnesses. The present case pertains to the year 1996 and is one of the oldest cases identified as per the direction of Hon'ble High Court of Delhi. Out of the said six witnesses, three witnesses are material eye/public witnesses who are examined as PW1, PW2 and PW3. The witnesses who left to be examined by the prosecution are formal in nature. It is also a fundamental right of accused persons to have a speedy trial. Keeping in view the oldness of the case, above facts and the nature of the evidence given by three public witnesses, the prosecution evidence was closed.
14. The complainant Sh. Manoj Kumar lodged present complaint to the police by stating that he was abducted by the accused Sanoj and his associates on a TSR (three wheeler) and thereafter he was beaten and when he raised alarm, he was thrown out near BDO Office, Najafgarh. PW1 Sh. Manoj Kumar reaffirmed his stand in the evidence by narrating the entire incident but quite surprisingly, he did not identify the accused persons as assailants. He simply stated that he could not identify the accused persons as he regained his consciousness when his brother took him to hospital. Although, PW1 admitted his signature on the rukka Ex. PW1/A but in his cross examination FIR No. 478/96 P.S. Najafgarh 5 of 9 conducted by Ld. APP for State, he straightway denied having made such statement to the police. He was also confronted with specific portions of the rukka Ex. PW1/A but despite this, PW1 maintained his stand that he did not see the accused persons. When he was again confronted by Ld. APP for State and questioned as to how he identified one of accused persons in TIP, then he replied that he identified one of the accused persons in the TIP at the instance of IO as said person was shown to him at the time of TIP. PW1 further stated that due to darkness, he could not see the accused persons. It is thus clear that the most material witness of the prosecution i.e PW1 (who is the complainant) intentionally or unintentionally did not identify the accused persons as the assailants or culprits.
15. PW2 Sh. Jeewan Dass is the father of complainant (PW1) and PW3 Sh. Suresh Kumar is the brother of PW1 but quite surprisingly, both these witnesses also corroborated the version of PW1 as far as the sequence of events relating to commission of offences and the non identification of the accused persons are concerned. Ld. APP for State confronted PW2 and PW3 also to their statements recorded under Section 161 Cr.P.C and even gave many suggestions but despite the onerous tasks of the Ld. APP for State, PW2 and PW3 did not identify the accused persons in the court. They also denied the suggestion that they have been won over by the accused persons or that they have compromised the matter with the accused persons.
16. The other witnesses examined by the prosecution are HC Subhash (PW4), Sh. Deshraj, Record Clerk (PW5) and Inspector Subey Singh (PW6). When the material public witnesses failed to identify the accused persons as assailants or FIR No. 478/96 P.S. Najafgarh 6 of 9 the offenders of the crime, the evidence of PW4 to PW6 becomes of less importance. Moreover, from the deposition of PW4 to PW6, it is clear that they simply assisted or participated in the investigation and they were not the eye witnesses of the commission of offences.
17. In the original rukka, complainant PW1 specifically stated the name of one of the accused persons as Sanoj Kumar and as regards the other accused persons, he showed his ignorance. Although the TIP proceedings are not proved on record as the concerned Ld. Metropolitan Magistrate is not examined in court but it is important to note that in the TIP proceedings, only one of the accused persons, namely, Kaptan was correctly identified while the other accused, namely, Shri Kishan was not identified and there is no TIP record as regards accused Gajraj. The accused Kishan has not been charge sheeted in the present case. As such, it is clear that from the material placed on record only the identification of accused Sanoj Kumar is brought on record by his specific name as disclosed in the rukka and statements of PW2 and PW3 recorded under Section 161 Cr.P.C and there is no other material as regards the other accused persons to establish their identity. No TIP proceeding of accused Sanoj Kumar was conducted and, as such, there was no other material placed on record to establish the identity of accused Sanoj Kumar except his identification from the mouth of complainant or other public witnesses but as already observed above, all the three public witnesses, namely, PW1 to PW3 failed to identify accused Sanoj Kumar as the assailant.
18. Keeping in view the aforesaid facts & circumstances of the case and especially the failure of prosecution to prove the FIR No. 478/96 P.S. Najafgarh 7 of 9 identity of accused persons, all accused persons are acquitted for the offences under Section 365 and 323 read with Section 34 IPC.
19. Before parting with the judgment, I would like to make certain observations as regards the manner of investigation and the role of the prosecution. The incident occurred on 30.08.1996 at 11:20 PM (night). When the father of complainant was informed by some person that his son, namely, Manoj Kumar was abducted by some person, he immediately made a call to the police and the same was recorded as DD No. 71 B at 0025 hours. Thereafter, on the basis of DD No. 28 A recorded at 0235 hours on 31.08.1996, FIR of present case was registered and the police swung into action. IO SI Subey Singh (now Inspector) made efforts for search of the accused persons and accused persons were arrested on 01.09.1996 i.e just after one day of the incident. The investigation did not stop there and the IO even traced out and seized the TSR on the same day i.e on 01.09.1996. He also moved applications for conducting TIP of accused persons immediately before the concerned Ld. Metropolitan Magistrate and even the TIP of accused persons i.e Kaptan and Kishan were conducted. It shows that the IO discharged his duties with full devotion and expediency. Accordingly, I appreciate the manner of investigation conducted by the IO.
20. Even the role of the prosecution is also very commendable as the then Ld. APP for State (whose name is not mentioned in the evidence) cross examined PW1 to PW3 at length to bring out the truth on record. As such, I appreciate the efforts of the prosecution also though the outcome of the case resulted in acquittal but it is not necessary that the prosecution FIR No. 478/96 P.S. Najafgarh 8 of 9 must always be satiated only when the accused persons are convicted.
21. I do not find sufficient material on record to initiate action against the public witnesses as their testimonies towards non identification of the accused persons cannot conclusively be said to be suffering from any element of mala fide and it may be either way. Moreover the present case is very old and the judiciary is already overburdened and no fruitful purpose would be served by making a mountain out of molehill.
22. File be consigned to Record Room.
Announced in the open court
On 12.10.2011 (Naresh Kumar Laka)
Metropolitan Magistrate,
Dwarka District Courts, Delhi.
FIR No. 478/96 P.S. Najafgarh 9 of 9