Delhi District Court
State vs . Devender Etc. on 22 May, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 75/08)
Unique ID case No. 02404R047142008
State Vs. Devender etc.
FIR No. : 149/08
U/s : 307/34 IPC
P.S. : Narela
State Vs. 1. Devender
S/o Sh. Bhai Lal
R/o House No. 691,
Pkt. 11, Sector A6,
Narela, Delhi.
2. Naval Kishore
S/o Sh. Bhai Lal
R/o House No. 691,
Pkt. 11, Sector A6,
Narela, Delhi.
Date of institution of case 14.07.2008
Date on which, judgment has been reserved 22.05.2012
Date of pronouncement of judgment : 22.05.2012
S.C No. 75/08 State vs. Devender & Anr. Page Nos. 1/ 14
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JUDGMENT:
1. The case of the prosecution as is stated in the charge sheet is that on 21.03.2008, on receipt of DD no. 46B regarding one person lying unconscious at House no. 447, Pkt. 11, Sector6, Narela, Delhi at PS Narela, HC Ranbir along with Ct. Dinesh reached there and came to know that injured had already been removed to SRHC Hospital and that no eye witness was found at the spot. Thereafter, HC Ranbir and Ct. Dinesh went to the hospital and collected the MLC of the injured, on which doctor mentioned 'unfit for statement'. On inquiry, HC Ranbir came to know that two brothers namely Devender and Naval Kishore had given injuries to the injured, but no eye witness of the incident was found. In these circumstances, HC Ranbir prepared a rukka and the same was sent to PS through Ct. Dinesh, which resulted in registration of the case vide FIR No. 149/08 u/s 307/34 IPC at PS Narela. After registration of the FIR, further investigation was assigned to SI Dinesh Dahiya. During the course of investigation, accused Devender was arrested, but accused Naval Kishore could not be arrested. After completion of the investigation, chargesheet was prepared and was filed before the court of concerned Ld. M.M.
2. Upon committal of this case to the court of Sessions, charge for the offence under Section 308/34 IPC was framed on 29.09.2008 against the accused Devender by my learned Predecessor. However, the accused pleaded not guilty and S.C No. 75/08 State vs. Devender & Anr. Page Nos. 2/ 14 3 claimed trial and thereafter, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined 10 witnesses : PW1 Sh. Liaquat Ali is the eye witness to the incident and he claimed that he had seen the incident and deposed that on 21.3.08, at about 7.00 pm, injured Niaz was sitting on a bed in front of his house and that in the meanwhile, accused Devinder, along with his brother Naval, came there and accused Naval Kishore was having a cricket bat in his hand and they started quarreling with Niaz and that accused Devinder caught hold Niaz from behind and accused Naval Kishore gave a blow with cricket bat on the head of Niaz and they also gave fist and leg blows to Niaz, who fell down on the ground and blood started oozing out from his head and after causing the injuries to Niaz, both the accused ran away from the spot.
During crossexamination, PW1 deposed that since 15 months prior to the incident, he was confined to his house due to illness and had been advised bed rest by the doctor. He deposed that 25/30 public persons were present at the spot at the time of incident and that police did not arrive at the spot in his presence as he left the spot after arrival of the father of injured Niaz and that father of the injured was called by him at the spot.
4. During the course of prosecution evidence, accused Naval Kishore was arrested on 03.09.2009 and his supplementary challan was filed in the court and S.C No. 75/08 State vs. Devender & Anr. Page Nos. 3/ 14 4 accordingly, a charge u/s 308/34 IPC was also framed against him on 09.02.201 However, the accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
PW1 Sh. Liaquat Ali was examined again on 25.05.2011 after arrest of another accused Naval Kishore who deposed on the same lines but with some improvements and contradictions. He deposed that quarrel had taken place at about 4.005.00 pm and after quarrel, both the accused ran away and that he informed the father of Niaz, who was sitting near the Mandir. He did not depose about giving of any fist or leg blow by the accused persons to Niaz.
During crossexamination, PW1 while contradicting his earlier statement, depose that PCR officials came at the spot in his presence.
5. PW2 Dr. Harvinder Singh proved the MLC of the injured as Ex. PW2/A and deposed that as per MLC, the smell of alcohol was present. He further deposed that on 19.04.2008, he gave the opinion regarding the nature of injuries as 'Grievous'.
6. PW3 HC Ranbir Singh deposed that on 21.3.2008, on receiving DD no. 46B, he along with Ct. Dinesh reached the spot and from where, he went to the hospital, collected the MLC of the injured, who was unfit for statement and that on the basis of DD no. 46B and MLC, he prepared rukka Ex. PW3/A and got the S.C No. 75/08 State vs. Devender & Anr. Page Nos. 4/ 14 5 present FIR registered through Ct. Dinesh and that on his pointing out, SI Dinesh Dahiya prepared site plan.
7. PW4 Ct. Dinesh Kumar deposed that on 21.3.2008, he along with PW2 HC Ranbir Singh reached the spot and he deposed about the investigations carried out by PW3. He also deposed that he took rukka to the PS, got the present FIR registered in the present case and returned to the spot along with SI Dinesh Dahiya, to whom the further investigation was marked.
8. PW5 Ct. Dinkar Kute deposed that on 21.3.2008, at about 7.25 pm, on receipt of message from W/Ct. Minakshi from PCR, she reduced the same into writing vide DD no. 46B dated 21.3.08 Ex. PW5/A and same was handed over to Ct. Dinesh for further handing over to HC Ranbir.
9. PW6 HC Ashok Singh is the Duty Officer, who had registered the case FIR in the present case on receipt of rukka from Ct. Dinesh. He proved the computerized copy of FIR as Ex.PW6/A and endorsement made by him as rukka as Ex.PW6/B.
10. PW7 Ct. Sudhir had joined the investigation of the present case with IO ASI Dinesh Dahiya and deposed that in his presence, accused Devender was arrested vide memo Ex. PW1/A, his personal search was conducted vide memo Ex.
S.C No. 75/08 State vs. Devender & Anr. Page Nos. 5/ 14 6 PW1/B, after interrogation, his disclosure statement Ex. PW7/A was recorded and on the pointing out of accused, pointing out memo Ex. PW7/B of place of occurrence was prepared.
11. PW8 Dr. Rajesh Kumar also proved the MLC of the injured as Ex. PW2/A.
12. PW9 Ct. Rajesh had joined the investigation of the present case with IO SI Suresh Chand and deposed that in his presence, after taking permission from the concerned court, accused Naval Kishore was formally arrested vide memo Ex. PW9/A, his personal search was conducted vide memo Ex. PW9/B and after interrogation, his disclosure statement Ex. PW9/C was recorded and on the pointing out of accused, pointing out memo Ex. PW9/D of place of occurrence was prepared.
13 PW10 SI Suresh Chand is the IO of the case. He deposed regarding the investigations carried out by him in respect of accused Naval Kishore and the documents prepared by him during the course of investigations. He deposed on the same lines as of PW9.
14 Thereafter, prosecution evidence is ordered to be closed and the matter was listed for recording of statement of accused persons.
S.C No. 75/08 State vs. Devender & Anr. Page Nos. 6/ 14
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15 Statement of both the accused namely Devender and Naval Kishore were
recorded on 15.05.2012. Both the accused claimed that they are innocent and had been falsely implicated in the present case. Accused Devender stated that PW Liyakat Ali deposed falsely against him and implicated him in this case because earlier, there was a quarrel between him and brotherinlaw of Liyakat Ali and he was having enmity with him and his family. They did not want to lead any evidence in their defence.
16 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused persons beyond reasonable doubt and that eye witness Liaquat Ali has clearly deposed regarding the role played by each of the accused which leaves little doubt as to the culpability of the accused and that the injuries sustained by injured were grievous as proved by PW2 and accordingly, it is prayed that accused persons be convicted for the charged offences. 17 On the other hand, learned defence counsel for both the accused persons has submitted that prosecution has failed to prove charges against the accused persons as injured is not traceable and there are material discrepancies in the testimony of eye witness Liaquat Ali who was examined as PW1. It is also submitted that no public witness was joined in investigation by the IO and that injured was under the influence of alcohol, when he sustained injuries as is reflected from the crossexamination of doctor as well as MLC. It is further stated that there S.C No. 75/08 State vs. Devender & Anr. Page Nos. 7/ 14 8 are material discrepancies in the statement of eye witness and other police officials examined by the prosecution and accordingly, it is prayed that accused be given benefit of doubt and acquitted of the charged offences in the present case. 18 I have heard the rival contentions raised before me and also perused the record carefully.
19. The present case has been registered on the basis of DD no. 46B Ex. PW5/A, whereby an information was received at police station Narela that one person was lying unconscious at house no. 447, Pkt. 11, Sector06, Narela, Delhi and on receipt of this DD, IO HC Ranbir Singh, who along with Ct. Dinesh proceeded to the place of incident. From the rukka Ex. PW3/A prepared by the IO, it is clear that when he reached at house no. 457, Pkt. 11, Sector06, Narela, Delhi, he did not find any eye witness. The IO also came to know that injured had been removed to SRHC hospital. On reaching the said hospital, he found patient admitted in the said hospital vide MLC no. 227/08. The patient was declared to be 'unfit for statement' by the concerned doctor. There is again a specific noting made by the IO in rukka Ex. PW3/A that he did not find any eye witness in the hospital. It appears that thereafter IO returned back to the spot and even though, he noted in the rukka Ex. PW3/A that he did not find any eye witness at the spot, he mentions that he came to know that Devender S.C No. 75/08 State vs. Devender & Anr. Page Nos. 8/ 14 9 and Naval Kishore had a quarrel with Niaz Mohd, and they had beaten him. IO does not reveal the source, from which he got this information. However, thereafter, case FIR No. 149/08 u/s 307/34 IPC appears to have been registered against both the accused persons.
20. The statement of injured was recorded by the IO only on 14.04.2008, but the injured has not been produced before the court for his deposition and the prosecution is thus relying upon the sole testimony of eye witness Liyakat Ali to prove its case against the accused persons. Said Liyakat Ali was examined as PW1 twice. He was firstly examined on 13.05.2009 and secondly on 25.05.2011, after arrest of accused Naval Kishore.
In his statement recorded on 13.05.2009, PW1 deposed that on 21.03.2008, at about 7.00 pm, injured Niaz Mohd was sitting on Takhat in front of his house and at that time, accused Devender (identified by PW1) along with his brother Naval Kishore (who was not arrested till then) came there and they started quarreling with injured Niaz Mohd and accused Devender caught hold of Niaz Mohd from behind, while accused Naval Kishore gave a blow on his head with a cricket bat and they also gave fists and leg blows to Niaz Mohd, who fell down on the ground and blood started oozing out from his head. Thereafter, police was called and both the accused ran away from the spot. He further deposed that his statement was recorded on 23.03.2008 and on his pointing out, IO prepared the site plan and arrested accused Devender vide arrest memo Ex. PW1/A and his personal S.C No. 75/08 State vs. Devender & Anr. Page Nos. 9/ 14 10 search was conducted vide memo Ex. PW1/B. During his crossexamination, PW1 deposed that he was a labourer (beldar) and on the date of incident, he had gone for work before the local police arrived on the spot. However, he further deposed that he had been confined to his house since about 15 months prior to the incident as he had been advised bed rest by the doctor. From his further crossexamination, it is brought out that police had not been called by him and that there were 25/30 other public persons present at the spot, when accused allegedly hit injured with a cricket bat and said public persons continued to remain present on the spot for about 20 minute, while injured remained lying at the spot and that none of these persons intervened, when injured was hit and they also not made any efforts to apprehend the accused. PW1 also deposed that he remained with injured Niaz Mohd, till arrival of his father at the spot. However, immediately thereafter, he stated that father of the injured was called by him at the spot and he had called father of the injured from Pkt. II, which is at the distance of 5 minutes from the spot.
21. Second statement of PW1 was recorded on 25.05.2011, after arrest of accused Naval Kishore. PW1 deposed more or less on the same lines of his statement, which was earlier recorded on 13.05.2009, however, with some material improvements and additions. He deposed that father of the injured was sitting near Mandir, when he was informed by PW1. He also denied that incident S.C No. 75/08 State vs. Devender & Anr. Page Nos. 10/ 14 11 had taken place on 7.25 pm and he claimed that incident had taken place at around 4.00/5.00 pm. During his crossexamination, PW1 stated that PCR officials had come to the spot in his presence and that thereafter, he had gone to his house, even though, in his statement recorded on 13.05.2009, he had deposed that police had come to the spot after he had left. There was also discrepancy in the number of public persons stated to be present on the spot and in his statement recorded on 25.05.2011, PW1 stated that only 15/20 persons were present, but in the statement recorded on 13.05.2009, 25/30 public persons were present at the spot.
22. It is apparent that statement of PW1 Liaquat Ali is full of contradictions, on one hand, he stated that he was confined to house since 15 months prior to the incident on being advised bed rest by the doctor, but on the other hand, he stated that he had gone for work after leaving place of incident. Further, on one hand, he stated that he remained with the injured till the time police arrived, but on the other hand, he stated that he had gone to call the father of the injured. Place from where the father of the injured was called also varies in the two statements made by PW1. Moreover, while PW1 and PW11 stated that site plan was prepared at the instance of PW1, the PW3 HC Ranbir Singh, the first IO of the case, states that site plan was prepared by PW11 at his instance.
The different version given by PW1 Liaquat Ali makes his testimony totally unreliable. In this regard, it has held by the Hon'ble Allahabad High Court in S.C No. 75/08 State vs. Devender & Anr. Page Nos. 11/ 14 12 Ram Swarup v. State of U.P. 1990 Cr. L.J. 511 (516) (All) that when a witness makes two inconsistent statements in his evidence with regard to a material fact and circumstance ; the testimony of such a witness becomes unreliable and unworthy to credence. In has also been held in Narayana Pillai v. State of Kerala 1971 Cr.L.J. 168 (Ker) that witnesses giving different versions at different stages cannot be believed.
23. There are also discrepancies in the case of the prosecution as well. PW11 SI Dinesh Dahiya stated that he had reached the place of incident at 7.00 pm, whereas as per the DD no. 46B Ex. PW5/A, information regarding the incident itself was received at PS at 7.25 pm. Moreover, as per the record, statement of the injured was recorded only on 14.04.2008 and there is nothing on record to show till what time, injured Niaz Mohd remained unfit for statement.
24. Further, there is also doubt as to identity of the accused persons, since, PW Liaquat Ali has stated that injured Niaz Mohd was given beatings by Devender and Naval Kishore son of Bhai Lal r/o 691, Pkt. 11, Sector A6, Narela, whereas injured Niaz Mohd himself has merely stated that two brothers residing in his neighbourhood namely Devender and Naval Kishore had given him beatings. He does not give any other particulars of the accused persons. Admittedly, neither, the accused Devender, nor Naval Kishore were arrested in the presence of the injured and no TIP of the accused persons had been conducted. Even assuming that S.C No. 75/08 State vs. Devender & Anr. Page Nos. 12/ 14 13 identity of the accused Devender has been established by the fact that he was arrested upon the identification of eyewitness Liaquat Ali, but there is nothing on record to establish the identity of accused Naval Kishore as one of the assailants, since he was arrested only on 03.09.2009, when he filed an application for surrender before the court. The fact that accused Naval Kishore surrendered in the court does not establish that he had in fact, committed the alleged offence.
25. There are other discrepancies in the statement u/s 161 Cr.P.C of the injured Niaz Mohd and the eye witness Liaquat Ali. The injured Niaz Mohd in his statement u/s 161 Cr.P.C stated that on the day of incident, he had asked the accused persons to return Rs. 150/ taken by them from him and that, the accused got angry and started beating him and when injured threatened to tell the police, they pushed him down and that the injured freed himself and went towards his house and sat down on a takhat there and in the meantime, both the accused persons reached there and that accused Devender caught hold of him and gave him fist blows and when injured tried to free himself, accused Devender exhorted and told his brother, "maar iske sir par me bat' and upon which, accused Naval Kishore gave a blow with bat on the head of injured. Injured does not mention about any fist and leg blows being given to him thereafter. On the other hand, eye witness Liaquat Ali has not mentioned anything about the exhortation by accused Devender. He also stated that both the accused gave fist and leg blows to Devender after he had been give a blow with a bat by accused Naval Kishore and that due to this injury, injured had S.C No. 75/08 State vs. Devender & Anr. Page Nos. 13/ 14 14 fallen down. Secondly, PW Liaquat Ali does not mention about any leg and fist blows being given to the injured in the statement recorded on 25.05.2011, even though, he has stated so in his earlier statement dated 13.05.2009. Even otherwise, as already mentioned above, injured has not been produced before the court and uncorroborated testimony of eye witness Liaquat Ali, which is full of discrepancies, does not inspire confidence and same cannot be relied.
26. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused persons on record, beyond the reasonable doubts. Accordingly, I acquit accused Devender and Naval Kishore of the charged offences, giving them the benefit of doubt.
File be consigned to the record room.
(Announced in the open Court ) (Illa Rawat)
(Today on 22.05.2012) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 75/08 State vs. Devender & Anr. Page Nos. 14/ 14