Delhi District Court
State vs . 1. Rakesh S/O Ranbir Singh, on 16 January, 2012
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. 118/99
P.S. Kanjhawala
Unique case ID No. 02404RO171932000
State Vs. 1. Rakesh S/o Ranbir Singh,
R/o V & PO Badvasni,
PS & Distt. Sonepat, Haryana
2. Kuldeep @ Binda S/o Hazari Lal,
R/o V & PO Badvasni,
PS & Distt. Sonepat, Haryana
3. Ashok Kumar S/o Richpal,
V & PO Machhari,
Distt. Sonepat, Haryana
4. Rajesh Kumar S/o Mange Ram,
R/o vill. Garh Shahjehanpur,
Distt. Sonepat, Haryana
5. Bijender Kumar S/o Ranbir Singh
R/o vill. Garh Shahjehanpur,
Distt. Sonepat, Haryana
6. Anoop@ Anupa S/o Baljeet@ Cheli
R/o vill. Badvasni, Distt. Sonepat,
Haryana (Expired, proceedings abated
on 17.12.2011)
7.Narender Kumar S/o Chander Singh
R/o V & PO Badvasni,
Distt. Sonepat, Haryana
FIR No. 118/99 PS Kanjhawala
1
Date of institution of case : 24.8.2000
Date on which case reserved
for judgment : 13.1.2012
Date of pronouncement of judgment : 16.1.2012
JUDGMENT U/s 355 Cr.PC:
a) Date of offence : 23.9.1999
b) Offence complained of : U/s 323/452/506/34 IPC
c) Plea of Distt. Sonepat, Haryana
5. Bijender Kumar S/o Ranbir Singh
accused : Pleaded not guilty
d) Final Order : Acquitted
BRIEF FACTS AND REASONS FOR THE DECISION:
1. Succinctly, the facts of the case as per prosecution is that on 23.9.1999 at about 2:15pm complainant Anil Kumar was sitting in Mata Vaishno Dhaba of his friend Ranbir Singh at village Kanjhawala. Meanwhile, one Maruti Van No. HR 10 A 9993 of white colour stopped in front of the said dhaba, from which six boys aged about 2528 years came out from the said Maruti Van. Out of them, two boys remained near the Maruti Van and remaining four boys entered into the dhaba and inquired about Ranbir Singh and when the complainant showed his inability to disclose the whereabouts of Ranbir Singh, the said four boys abused and beaten him up and also threatened him to kill and ran away from there in the said Maruti Van. Matter was reported to FIR No. 118/99 PS Kanjhawala 2 police and case was registered at PS Kanjhawala vide FIR No. 118/99, U/s 452/323/506/34 IPC. Later on accused persons were arrested and after completion of further necessary investigation charge sheet was prepared and was filed in the court for trial.
The copies of chargesheet and annexed documents were supplied to accused persons in due compliance of Section 207 Cr.P.C.
2. Prima facie case having been made out, charge for the offence 452/323/506/34 IPC was framed against the accused persons on 24.12.2001 to which all the accused persons pleaded not guilty and claimed trial.
3. In order to prove its case prosecution examined as many as 11 witnesses.
PW 1 Anil Kumar is the complainant in the present case. He deposed that on 23.9.99 he was sitting on the dhaba of his friend at village Kanjhawala in front of DC Office. At about 2:00/2:30pm one van No. HR 10 A 9993 came there and stopped in front of the dhaba and there were 67 persons in the van and they got down and came to him and inquired about his friend Ranbir and when he told them that he was not aware as to where was Ranbir, they threatened to him that henceforth he would not be seen to them. They were having dandas with them. He identified accused Vijender, Ashok and Kuldeep in court. He further deposed that accused persons beaten him up with dandas and fist blows and he fell down on the floor and after beating him the FIR No. 118/99 PS Kanjhawala 3 accused persons ran away from there. Thereafter he made a call at 100 number. He went to PS and police recorded his statement Ex. PW 1/A. Thereafter police got him medically examined at DDU Hospital and after that his supplementary statement was recorded in the PS. He further deposed that in the month of October, 1999 he identified the accused persons Bijender, Ashok Kuldeep, Rakesh and Anoop at Sonepat in Sadar Bazar Police Station.
PW 2 Ct. S. Gupta is the witness who accompanied the IO at the spot. He deposed that on 23.9.99 he was in PS Kanjhawala and on receipt of DD No. 35B he alongwith ASI Sushila Lakra went to DC Office Kanjhawala where one Anil met them and got recorded his statement to IO. IO prepared rukka and handed over the same to him and he went to PS and got the FIR registered. IO prepared site plan. Meanwhile, one PCR van also reached and handed over accused Rakesh to IO who was arrested. IO conducted his personal search and prepared memo Ex. PW 2/A. This witness identified the accused Rakesh in court.
PW 3 ASI Jai Singh deposed that on 20.10.1999 he was posted at Sonepat . One that day one secret informer informed that the accused required in this case was present at his house and if the raid is conducted he may be apprehended. ASI Sushila Lakra formed the raiding party and went to village Badawasni alongwith the secret informer and accused Kuldeep was arrested from his house. They all went to the house of accused Ashok and he was FIR No. 118/99 PS Kanjhawala 4 arrested from his house at village Machri by ASI Sushila Lakra. Thereafter they went to Garh Sujanpur. There they arrested accused Bijender and Rajesh Kumar. Thereafter they came to PS Sadar alongwith all the accused persons. Thereafter IO Sushila Lakra called the complainant Anil Kumar at the police station and he identified all the four accused persons.
PW 4 ASI Ishwar Singh was posted as duty office in PS Kanjhawala who registered the FIR Ex. PW 4/A in the present case.
PW 5 Shri Parveen Kumar is the driver of the Maruti Van HR 10A 9993 which was allegedly used during the incident. He deposed that he is a driver by profession and about 9/10 years back he was the driver of Maruti Van No. HR 10A 9993. On the day of incident, he was coming from Bahadurgarh alongwith his aforesaid van and he was signaled to stop by some police officials and checked the documents of his vehicle and took him to PS Kanjhawala and obtained his signatures on some papers and taken into possession his van and locked him. Nothing had happened in his presence. This witness was cross examined by Ld. APP for the state as he resiled from his earlier statement given to the police.
PW 6 Ct Laben Laba is the witness to arrest of accused Anup. He deposed that in the year 1999 he was posted at PS Kanjhawala and he joined the investigation of the present case. He alongwith IO SI V.N. Misra reached at Kanjhawala Chowk and one secret informer had informed regarding the FIR No. 118/99 PS Kanjhawala 5 presence of accused at Kanjhawala Chowk. One raiding party was formed and upon pointing out of the informer, accused Anup was apprehended and accused Anup was arrested in the present case and his personal search was conducted.
PW 7 Dr. Ravi Pathak is the witness who proved the MLC which was conducted by Dr. Mahipal, Dr Tarun Jain and him. He deposed that the injured Anil Kumar was medically examined by Dr. Mahipal vide MLC No. 12152 which is Ex. PW 7/A. He further deposed that Parveen Kumar was medically examined by Dr. Tarun Jain vide MLC No. 12526, Ex. PW 7/B and one Rakesh was also examined under his supervision vide MLC No. 12151 which is Ex. PW 7/C. PW 8 Ct Rajender is the witness to the arrest of Accused Kuldeep, Ashok, Bijender and Rajesh. He deposed that on 20.10.1999 he alongwith HC Ishwar Singh and WASI Sushila Lakra reached at Thana Sadar, Sonepat vide DD No 9 and HC Jai Singh and secret informer joined them and they reached village Barbasi and upon pointing out of informer accused Kuldeep, Ashok Kumar, Bijender and Rajesh were arrested in the present case vide arrest memo Ex. PW 8/A, Ex. PW 8/B, Ex. PW 8/C and Ex. PW 8/D and their personal search was conducted vide memo Ex. PW 8/E, Ex. PW 8/F, Ex. PW 8/G and Ex. PW 8/H. In the evening they came back to the PS. PW 9 Ct. Suresh Kumar is the witness to the arrest of accused FIR No. 118/99 PS Kanjhawala 6 Narender. He deposed that on 16.11.1999 he was posted at PS Kanjhawala and he joined the investigation of the present case and reached at village Kanjhawala alongwith IO/ASI Sushila Lakra where one secret informer met them and joined them. One raiding party comprising above mentioned persons was formed and accused Narender was apprehended at the instance of secret informer and he was arrested in the present case vide arrest and personal search memo Ex. PW 9/A and Ex. PW 9/B. Complainant Anil Kumar was called telephonically and he identified the accused Narender. IO recorded his statement.
PW 10 W/ASI Sushila Lakra is the IO in the present case. She deposed that on 23.9.1999 she was posted at PS Kanjhawala. On that day on receipt of DD No. 35B she alongwith Ct. S. Gopiya reached at the spot i.e Janta Vaishno Dhaba, Bawana Road, village Kanjhawala where complainant Anil Kumar met them. She recorded his statement. Thereafter she prepared rukka Ex. PW 10/A and handed over the same to Ct. S. Gopiya who came back with the copy of FIR and original rukka and handed over the same to her. She prepared site plan Ex. PW 10/B at the instance of complainant. Accused Rakesh Kumar was handed over to her by the PCR officials at the spot. He was arrested vide arrest memo Ex. PW 10/C and his personal search memo already Ex. PW 2/A. Complainant was got medically examined. She further deposed that on 20.10.1999 accused Ashok Kumar, Kuldeep, Bijender and Rajesh Kumar FIR No. 118/99 PS Kanjhawala 7 were arrested in the present case vide arrest memo already Ex. PW 8/A,B,C and D and their personal search already Ex. PW 8/E,F,G and H. She further deposed that on 29.10.99 accused Anoop Kumar was arrested vide arrest and personal search memo Ex. PW 10/D and Ex. PW 10/E . She further deposed that on 16.11.99 accused Narender was arrested vide arrest and personal search memo Ex. PW 9/A and Ex. PW 9/B. She further proved copy of DD No. 35B as mark A and proved disclosure statements of all the accused persons as Ex. PW 10/F1 to F7.
PW 11 ASI Jai Singh is the witness who allegedly apprehended accused Rakesh and handed over to IO. He deposed that on 23.9.1999 he was posted as Incharge Van, Commander 79 PCR with duty hours from 8:00am to 8:00pm and at about 2:30pm he received information that in front of the DC Office, Kanjhawala, a Maruti Van bearing registration No. HR 10A 9993 of white colour that six persons after firing have ran away from the spot. The Maruti Van was coming from the side of Kanjhawala. He chased the aforesaid van and after hearing the siren of his van all the six persons left the Maruti car at Bawana Canal and they themselves ran away here and there. He alongwith gunman Rajesh caught two persons near Ishwar Colony. Thereafter he informed the control room. Thereafter IO ASI Sushila Lakra came at the spot and he handed over the accused to her.
4. Thereafter statement of all the accused persons was recorded U/s 313 FIR No. 118/99 PS Kanjhawala 8 Cr.PC on 04.9.2009 wherein they all denied all the incriminating material available on record and claimed innocence and their false implication.
5. During the pendency of trial, accused Anoop @ Deepak expired and proceedings against him were abated vide order dated 17.12.2011.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
7. In the present case, the prosecution story is that on 23.9.1999 at about 2:15 pm, seven accused persons committed house trespass in the Janta Vaishno Dhaba where victim/complainant Anil Kumar was working and the accused persons threatened him to eliminate and caused simple hurt on the person of victim Anil Kumar. The very basic foundation in the present case is the PCR call which was made on the fateful day pertaining to which DD entry No. 35B was recorded. The perusal of DD entry No. 35B reveals that a Maruti Van bearing registration No. HR 10A 9993 came at the spot and fired bullets. The original complaint Ex PW1/A of the victim Anil Kumar was recorded on 23.9.1999 which is totally incompatible with DD entry No. 35B. It was complained by the victim that accused persons came at the spot, abused him and gave him beatings. There is no allegation with respect to firing. PW 1 has admitted in his examination in chief that the PCR call at 100 number was made by him. Thus, the very basic foundation of the prosecution is shaky in the present case.
FIR No. 118/99 PS Kanjhawala 9 The victim/complainant Anil Kumar is the star witness who examined himself as PW 1. The prosecution totally rests on the statement of this witness. He deposed that 67 persons came in the Maruti Van No. HR 10A 9993 and gave beatings to him with dandas and fist blows. The perusal of complaint Ex. PW 1/A clearly states that six persons alighted from the Maruti Van, out of which two persons remained present near the Maruti Van and four persons came to him who abused him and gave him beatings. However, in the deposition of PW 1, the witness diluted his previous specific statement and stated that there were 67 persons. Originally in the complaint Ex PW1/A, the complainant specifically stated that there were 6 persons who alighted from van out of which 4 committed the alleged act and thereafter he deposed that there were 67 persons while deposing as PW1. The prosecution is made against 7 persons in the present case. PW 1 identified only 5 persons in the court. Thus, there are clear contradictions with respect to the number of accused persons in the present case.
The victim/complainant Anil Kumar in the original complaint Ex. PW 1/A made no complaint with respect to use of dandas by the accused persons. However, while deposing as PW 1 he stated that the accused persons used dandas to beat him. It is clearly an improvement over the earlier version of the victim/complainant and the omission with respect to the use of dandas in the original complaint Ex PW1/A seems to be material. Further, it is admitted by FIR No. 118/99 PS Kanjhawala 10 the complainant that he made call at 100 number. The call made to 100 number i.e the PCR call was with respect to firing and not with respect to the beating. Thus, the complaint and version of PW 1 is shrouded with suspicion.
The victim/complainant admitted that there were 23 boys inside the dhaba at the time of incident. However no such boys have been cited as witness of the incident. It is also admitted by the victim that there were offices of advocates/typists on both the sides of the dhaba. However, none is cited as witness in the present case.
Interestingly, in the complaint Ex. PW 1/A, it was complained by the victim/complainant that when the accused persons were giving beatings to him he raised alarm and public persons came and on seeing the public persons coming, the accused persons ran away in their Maruti Van. However in the deposition by the complainant as PW 1, he stated that nobody from the public came forward to rescue him from the accused persons. It was further admitted that no passersby had come at that place.
As far as the allegation of beating by dandas or firing by weapon is concerned, in the present case no recovery of dandas or arm has been effected by the prosecution. Thus, the disclosure statements of the accused persons are inadmissible in evidence in view of Section 27 Evidence Act.
It is statement of PW 1 that his statement Ex. PW 1/A was recorded at the PS. However the deposition of IO, W ASI Sushila Lakra as PW 10 is FIR No. 118/99 PS Kanjhawala 11 totally contradictory whereby she stated that the statement of complainant was recorded at the spot. In totality of above facts and circumstances, this court do not find the statement of PW1 wholly reliable and is perused with circumspection.
It is the case of the prosecution that the accused persons came in a Maruti Van bearing No. HR 10A 9993. However no such vehicle has been seized by the prosecution as the case property and the vehicle is not even shown in the site plan.
The accused Rakesh is allegedly stated to have been arrested at the spot. He was allegedly to have been apprehended by the PCR personnelPW 11 ASI Jai Singh and gunman. However, PW 11 ASI Jai Singh who has stated to have apprehended the accused Rakesh has failed to identify the accused Rakesh in the court. He identified the accused Rajesh and not accused Rakesh in the court. Thus, the testimony of PW 11 is also not found reliable.
It is also deposed by PW 11 ASI Jai Singh that he apprehended two accused persons on 23.9.1999 and he handed over those two persons alongwith the vehicle to the IO at the spot. However, surprisingly, the IO PW 10 W/ASI Sushila Lakra has stated that only one person was handed over by PW 11 and no vehicle was seized on that day. During cross examination the IO stated that she does not remember whether PCR handed over any maruti van or not. Also, the arrest memo of accused Rakesh Ex. PW 10/C does not FIR No. 118/99 PS Kanjhawala 12 mentions the place of arrest which creates doubt over the prosecution story.
As far as the arrest of accused Rajesh, Bijender, Kuldeep and Ashok is concerned, they are alleged to have been arrested at Sonepat on the pointing out of secret informer. PW 3 ASI Jai Singh deposed himself to be the member of raiding party and witness to arrest of abovesaid four accused persons and stated to have signed the arrest memos however no signatures of PW3 are present on the arrest memos. IO admitted during cross examination that the arrest memos were prepared at the spot of arrest and were also signed at spot only. However, the place of arrest in the arrest memos of accused Rajesh, Bijender, Kuldeep and Ashok is shown as PS Kanjhawala.
Further, as far as arrest of accused Anoop is concerned, he is stated to have been arrested at Kanjhawala Chowk. However, PW 6 Ct. Laben Lama stated that he accompanied the IO SI V.N. Misra who arrested the accused Anoop. However, surprisingly, SI V.N. Misra is not the IO and is not the witness in the present case. Also, the place of arrest is shown as PS Kanjhawala in the arrest memo Ex PW/10 D The statement of PW 6 is totally contradictory and is not reliable.
Further. as far as arrest of accused Narender is concerned, he is alleged to have been arrested at the instance of secret informer who told that accused Narender is coming to meet his relative near Kanjhawala Chowk. However, the arrest memo Ex. PW 9/A of accused Narender shows that he was FIR No. 118/99 PS Kanjhawala 13 arrested at PS Kanjhawala. His personal search memo Ex. PW 9/B suggests that nothing was recovered from his possession. During cross examination, PW 9 Ct. Suresh Kumar failed to depose as to which relative of accused was coming to visit and why nothing was recovered from him on that day. He could not tell the time of arrival of accused Narender and the side from which he had come on that day.
It is also pertinent of note that the search memos of all the accused persons shows that nothing was recovered from their possession at the time of their arrest. It is highly unnatural that when that the accused persons are arrested from different areas at different times, there was nothing in their possession.
Admittedly, the accused persons were not known to the complainant/victim, it would have been proper for the police to get the Test identification parades (TIPs) conducted for fixing the culpability of accused persons however no such action was taken.
PW 5 Shri Praveen Kumar is the driver of the Maruti van bearing registration No. HR 10A 9993 which is allegedly used in the commission of complained offences. PW 5 has totally disowned the prosecution story and has not supported even an iota of the prosecution case.
The IO W ASI Sushila Lakra PW 10 has deposed that when she reached the spot complainant met her and she recorded his statement at the spot FIR No. 118/99 PS Kanjhawala 14 which is totally assailed by the version stated by PW 1 complainant Anil Kumar. The complainant as PW 1 stated that his statement was recorded at the PS. The PW 10 W/ASI Sushila Lakra has failed to depose why the alleged vehicle which is the important piece of evidence in the present case was not seized and why it was not shown in the site plan.
The perusal of DD entry No. 35B which reveals the incident of firing, omission by the victim/complainant to depose regarding the use of danda in the original complaint, non joining of any independent witness, the inconsistencies in the arrest of the accused persons when kept in juxtaposition casts serious dents on the prosecution story. The basic canons of criminal jurisprudence mandates statutory duty on the prosecution to prove its case against the accused beyond the shadows of reasonable doubts. It is well settled legal proposition that any doubt in the prosecution story gives benefit to the accused. In the present case, no independent witness has been cited by the prosecution and no plausible explanation has been furnished as to why despite availability of the public witnesses they were not cited and examined as witness. The very first call to the police in respect to the present incident was with respect to firing and was not connected to the facts of the present case. Further, the victim/complainant has shown improvement over his earlier version and there are serious inconsistencies in his statement. The victim/complainant while depositing as PW 1 has even failed to identify some of the accused persons FIR No. 118/99 PS Kanjhawala 15 while being present in the court. Further, there are serious lapses in the prosecution story with regard to the place of recording of statement of the victim/complainant. There is no seizure of case property and there are discrepancies in the arrest of the accused persons. The conjoint reading of the above facts creates serious doubt and leave unexplained holes in the prosecution story.
8. In view of the aforesaid discussion and observations, this court holds that the prosecution has miserably failed to prove its beyond any reasonable doubt. Accordingly, this court exonerates all the accused persons namely Rakesh, Kuldeep @ Binda, Ashok Kumar, Rajesh Kumar, Bijender Kumar and Narender Kumar for the offences charged against them u/s 452/323/506/34 IPC.
Bail bonds are cancelled. Sureties are discharged.
Documents, if any be returned to its rightful claimant(s) after cancellation of endorsement on the same.
File after necessary compliance be consigned to record room.
Announced in open court ( Sushil Anuj Tyagi )
16th day of January, 2012 Metropolitan Magistrate,
cr Rohini Courts: Delhi
FIR No. 118/99 PS Kanjhawala
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