Delhi District Court
(I) Vinod Kumar vs State Of Punjab, Crl. Appeal on 31 July, 2023
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (FTC 02) :
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
CNR No: DLSE010000192016
SC: 1122/2016
FIR No: 441/2014
PS: Okhla Indl. Area
U/s: 308/34 IPC
State
Versus
Wakar Ali
S/o Sh. Zamil Ali
R/o: Jhuggi No. C274,
Sanjay Colony, Okhla Phase - II,
New Delhi.
....ACCUSED PERSON
Date of Institution : 27.02.2016
Judgment reserved on : 20.07.2023
Date of Decision : 31.07.2023
JUDGMENT
1. The present accused has been forwarded for trial by SHO PS Okhla Industrial Area, on the allegations of having committed an offence, of an attempt to commit culpable homicide not amounting to murder punishable under Section 308 IPC.
As per the case of prosecution, on 19.06.2014, after receipt of DD No. 15PP and MLC No. 115137/14, related to one FIR No: 441/2014 Page 1 of 17 Sumer Singh, SI Kamlesh, IO had reached at Safdarjung Hospital and produced the said MLC before the concerned Doctor and inquired about the injured. Doctor had told him that injured was not present in the ward. Thereafter, the IO along with Const. Sunil had reached the house of injured i.e., Jhuggi No. C382, Sanjay Colony, Okhla Phase - II, New Delhi, however, same was also found locked. Thereafter, IO had come back to the Police Post and later on complainant/ injured Sumer Singh had visited the Police Post, Okhla Phase - III, and had given his statement that he was residing at the given address with his family and was working as labourer (Baildaar). On 17.06.2014, his younger son Sooraj had gone in the marriage of his friend Ajay, in which their neighborer Wakar Ali, present accused, was also present. Accused had asked his son for money to purchase liquor but his son had refused. After getting annoyed by said refusal, accused on 18.06.2014, at around 5:00pm, had visited the house of complainant and called his son out and started quarreling with him. Complainant came out after hearing the quarrel and had separated both of them and asked the accused to go back to his house. However, instead of going back, accused had started pushing him and after sometime had gone to his home. After about 10 minutes, the accused and two of his accomplices along with one cricket bat in his hand, had again reached his house and started abusing the complainant. When complainant came out of his house to pacify the accused, then all of them had beaten him. During those beatings, the accused had told the complainant to FIR No: 441/2014 Page 2 of 17 finish him off and had hit brutally on his head with the bat. Hence, he wanted an action to be taken against those boys and could have identified the accomplices, if he would have seen them.
2. On this statement, IO had prepared rukka, got the present FIR registered. He had also prepared site plan at the instance of complainant and thereafter accused was arrested in this case on 15.07.2014 and his personal search was conducted. Disclosure statement of accused was also recorded and he was sent to judicial custody and was later on released on bail on 01.08.2014. During investigation, IO had recorded the statements of witnesses and after completion of investigation, he had filed the charge sheet before the Court of ld. MM on 27.02.2016. On the same day, cognizance of offence was taken and vide order dated 11.04.2016, the matter was committed to the Court of Sessions for 19.04.2016.
3. Charge for an offence u/s 308 r/w Sec. 34 IPC was framed against the accused by ld. Predecessor of this Court on 04.10.2016, to which he had pleaded not guilty and claimed trial.
4. Thereafter on 17.10.2022, accused had admitted the following documents under Section 294 CrPC and witnesses related to the said documents were dropped at the request of ld. Addl. PP for State from the array of witnesses.
FIR No: 441/2014 Page 3 of 17(i) The copy of the FIR as Ex. P1;
(ii) The copy of DD No. 15 is Ex. P2;
(iii) The MLC No. 115137/14 is Ex. P3;
5. In order to prove its case against the accused beyond reasonable doubt, the prosecution had examined seven witnesses in all.
PW1 is none other than the star witness of prosecution i.e., the complainant/ injured Sh. Sumer Singh S/o Sh. Nasib Singh. In his examination in chief recorded on 07.02.2018 and 10.04.2018, he had deposed on similar lines as was deposed by him before the IO in his statement on which the present FIR was registered and the said statement has been proved on record as Ex. PW1/A. He had identified the cricket bat as weapon of offence as Ex. P1.
However, in his cross examination recorded on 04.04.2022, he had taken an entire Uturn and stated that accused was residing in his neighborhood and was a friend of his son Suraj, however, he was not aware if there was any money dispute between his son and accused. He had categorically stated that accused had not inflicted injury upon him, rather, three persons who were accompanying him had beaten him and those three persons were unknown to him.
FIR No: 441/2014 Page 4 of 17It was deposed further by this witness that accused had reached the spot after those three persons had already caused injuries to him, but after that day, he had never seen those three persons in the locality. It was specifically asked to this witness as to why he had deposed on 07.02.2018, that accused Wakar Ali had hit him with the bat on his head and shoulder while he was accompanied with three friends and to this question, he had replied that he could not see as to who had hit him and inflicted injuries on his person and name of accused was told by the police officials as culprit and they had asked him to depose against him, however, he could not tell the name of said police official.
The statement Ex. PW1/A was stated to have been recorded by police official on his own and was never read over to him and only his signatures were obtained on some papers in the police station, however, he was not aware of the contents of those documents. It was also stated by him that statement made by him before the Court on that day was true and correct and his earlier deposition dated 07.02.2018, was made at the instance of the police official.
This witness was also reexamined by ld. Addl. PP for State, as he had introduced some new facts, however, nothing fruitful was extracted during that reexamination as well.
FIR No: 441/2014 Page 5 of 17PW2 is Const. Sunil, who was stated to be on night emergency duty with SI Kamlesh on 19.06.2014, during his posting as Constable at Police Post Okhla Industrial Area, Phase
- III. He had accompanied the IO to the house of injured after his return from the hospital and had deposed further that after sometime, injured himself had come at Police Post Okhla and had given his statement, which was recorded by IO, on which the IO had prepared rukka and handed over the same to him for registration of FIR. He got the FIR registered and returned back to the Police Post, Okhla and handed over the copy of FIR and original rukka to IO and thereafter he had also accompanied the IO to the spot, where, IO had recorded the supplementary statement of complainant and had prepared site plan at his instance. He had also made efforts to search the accused but was not found. IO had recorded his statement.
During his cross examination conducted by ld. Counsel for accused, he had stated that IO had gone to Safdarjung Hospital, in his presence but he had not accompanied him there. He could not remember the time when IO had gone to the Safdurjung Hospital but it was stated to be at night, nor, he could tell the time of arrival of IO back to Police Post. However, rukka was stated to have been handed over to him by IO at around 11:30pm at Police Post Okhla Industrial Area, Phase - III, from where the police station was situated at a distance of 20 minutes of motorcycle ride. He could not remember the time FIR No: 441/2014 Page 6 of 17 when complainant had visited the police post and quite contrary to his earlier deposition, it was deposed by him that complainant had given a written complaint to IO at Police Post, Okhla Industrial Area, Phase - III. No public person was stated to have met them at the spot. Formal suggestions were denied by him as wrong and incorrect.
The other relevant and star witness of prosecution case is PW3 Sh. Suraj S/o Sh. Sumer Singh, who was examined on 10.04.2018, who is the son of injured and had also deposed in his examination in chief, on the similar lines as that of his father, wherein, it was stated by him that on 17.06.2014, he had gone to attend the marriage party of his friend Ajay, where accused Wakar Ali was also present. Accused had demanded money from him to purchase some liquor, but he had refused.
On 18.06.2014, accused Wakar Ali came to his house at around 5:00pm and called him, then he along with accused had gone to the street, where he had started beating him. After this, his father had come there and intervened and pacified the matter and thereafter accused had left the spot, but after 10 minutes, accused along with his three other friends again came there and started hurling abuses. He along with his associates had also pulled him out of his house and when his father had intervened and got him separated from the clutches of accused, then accused had hit his father on his head with a cricket bat, due FIR No: 441/2014 Page 7 of 17 to which his father had fallen down and thereafter accused had also hit him on his left shoulder. Police was stated to have taken his father to the hospital, where inquiries were conducted by police from him. He had correctly identified the accused as well as cricket bat.
However, during his cross examination conducted on 03.01.2023, this witness had also taken a total Uturn from his earlier version and had stated that he could not read and write English and police officials might have recorded his statement. It was admitted by him that accused had advanced some money to him and on 17.06.2014, accused had demanded back his money from him. He was stated to have not seen the accused assaulting his father, however, his father had told him that he was beaten by accused. He was stated to be not present at the spot at the time of incident. However, it was denied by him as wrong that accused was falsely implicated in this case by him along with his father so as to avoid return of money to accused. It was also denied by him as wrong that he had falsely implicated the accused in this case at the instance of his father.
This witness was also reexamined by ld. Addl. PP for State, after obtaining permission from the Court, in which it was specifically put to him that during recording of his statement on 10.04.2018, in his examination in chief, he had categorically stated about accused having beaten his father with a cricket bat, FIR No: 441/2014 Page 8 of 17 however, now, he was claiming that he was not even present at the spot, then which of his statement was correct and to this question of ld. Addl. PP, he had categorically answered that on 10.04.2018, he had made the statement before the Court as per instruction of his father. He had denied the suggestion that he was won over by accused and that is why he was not stating the correct facts before the Court.
PW4 is one Smt. Anita W/o Sh. Subodh Rai, who had deposed that she was illiterate and about 67 years back, it was in the afternoon of summer season, when after hearing some noise, she came out of the house and saw that 23 boys were giving beatings to Sumer Singh, who was her neighborer, due to which he had fallen on the ground and the offenders had run away from the spot but she did not know them, further, she could not identify any of the offenders, as she had not seen them. Neither police had made any inquiries from her, nor, recorded her statement.
This witness was also cross examined by ld. Addl. PP for State, in which she had denied having made any statement Mark PW4/A dated 24.06.2014, to the police. She could not tell if quarrel had taken place on 18.06.2014, however, it might have occurred in the evening time. Remaining suggestions of ld. Addl. PP for State were also denied by her as wrong and incorrect.
FIR No: 441/2014 Page 9 of 17Similarly, PW5 Smt. Munni Devi W/o Sh. Ram Saran, had deposed that quarrel had taken place between two groups but she did not know their names and addresses and she had nothing else to say about this case.
This witness was also cross examined by ld. Addl. PP for State, after declaring her hostile, during which she had denied having made any statement Mark X to the police.
PW6 is Sh. Chander Shekhar S/o Late Sh. Ashok, who had also deposed on the very similar lines as deposed earlier by PW5, that a quarrel had taken place between two groups, but he did not know the name and addresses, nor, he had any knowledge about this case. He was also confronted from portion A to A1 of statement Mark 'Y' to which he had denied having made the same to the police.
PW7 is SI Kamlesh Kumar, No. D5183, who had deposed about the investigation conducted by him in this case and had placed on record the DD No. 15A as Ex. PW7/A. Thereafter he had reached Safdarjung Hospital, but injured was not found present in the ward and thereafter he along with Const. Sunil had reached at H.No. C382, Sanjay Colony, Okhla Phase II, but the house of injured was found locked. Thereafter they returned back to Police Post.
FIR No: 441/2014 Page 10 of 17On the same day, injured had visited the Police Post, where he had recorded his statement but he could not remember the exact name of injured on the date of his deposition. Thereafter rukka Ex. PW7/B bearing his signature at point X was prepared by him and handed over to Const. Sunil for registration of FIR. Const. Sunil, after registration of the FIR had came back to Police Post along with original rukka and copy of FIR. Thereafter he along with complainant had visited the spot and had prepared site plan Ex. PW7/C at the instance of complainant.
On 24.06.2014, he had recored the statements of other witnesses. On 15.07.2014, accused Wakar Ali had came to Police Post, where he was arrested vide arrest memo Ex. PW7/D and his personal search was conducted vide memo Ex. PW7/E and his disclosure statement was also recorded vide Ex. PW7/F. The pointing out memo Ex. PW7/G was also prepared at the instance of accused bearing his signatures at pt. X. Cricket bat was also seized vide seizure memo Ex. PW7/H bearing his signature at pt. X. Though searches were made to nab the co accused but no one could be traced out. Thereafter accused was medically examined and sent to Lock Up. Next day, he was produced before the Court and remanded to J/C. After completion of investigation, he had filed the chargesheet before the Court.
FIR No: 441/2014 Page 11 of 17During his cross examination conducted by ld. Defence Counsel for accused, it was deposed by him that DD No. 15A was marked to him by Duty Officer, which was received by him at Police Post Okhla Industrial Area, Phase - III. It was admitted by him that weapon of offence was not sent to FSL for expert opinion as well as he had not met any eye witness when he had initially visited the house of injured. It was also admitted by him that accused had surrendered before him on 15.07.2014. He had though named coaccused Yogender and Sameer but was not sure as to whether he had mentioned their names in the chargesheet or not. Other formal suggestions were denied by him as wrong and incorrect.
6. Thereafter prosecution evidence was closed.
7. After closure of prosecution evidence, statement of accused was recorded under Section 313 CrPC, wherein, entire incriminating circumstances and evidence as appearing against him on record were put to him and except the facts which were either specifically admitted to be correct by him or were purely and essentially a matter of record, accused had claimed his ignorance regarding most of them and denied the rest as wrong and incorrect. He had also claimed his innocence and false implication in this case.
FIR No: 441/2014 Page 12 of 178. I have heard the arguments advanced by Dr. Prayag Dutt Pandey, ld. Addl. PP representing the State and Sh. Zamil Ahmed, ld. Counsel for accused and have meticulously and scrupulously gone through the entire material on record.
9. To the plea raised by the ld. Defence Counsel regarding material witnesses having turned hostile and not having supported the case of prosecution, ld. Addl. PP for State has placed reliance on the following citations :
(i) Vinod Kumar v/s State of Punjab, Crl. Appeal No. 554 of 2012, Hon'ble Supreme Court of India, decided on 21.01.2015, wherein, in para no. 29, the Hon'ble Apex Court had held as under :
"29. ......
In Bhagwan Singh V. State of Haryana[24], it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. ......
the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof."
(ii) Ravasaheb @ Ravasaheb Gouda etc v/s State of Karnataka, Hon'ble Supreme Court, Crl. Appeal No. 1109 FIR No: 441/2014 Page 13 of 17 1110 of 2010, decided on 16.03.2023, wherein, Hon'ble Apex Court had held in para no. 17.1 as under :
"17.1 Evidence of hostile witness:
a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable;
b) The evidence of a hostile witness can form the basis of conviction.
c) The general principle of appreciating the evidence of eyewitnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses.
[Mrinal Das Vs. State of Tripura (2011) 9 SCC 479]"
10. In the light of aforesaid law as laid down by Hon'ble Apex Court, it has been argued and submitted by ld. Addl. PP for State, that merely because the witness has not supported the case of prosecution during his cross examination, his testimony cannot be discarded or thrown away in the dustbin at the threshold and that portion which supports the prosecution story can very well be taken into account and conviction can be based up on the same.
However, I have no hesitation in holding that I do not find myself in agreement with this submission and contention raised by ld. Addl. PP for State.FIR No: 441/2014 Page 14 of 17
A bare perusal of the examination in chief of PW1 itself reveals that he had changed the story from what actually and initially, he had deposed before the IO, because, in his statement Ex. PW1/A given to IO, he had stated that accused was accompanied by two other persons, whereas, during his deposition before the Court, those two persons were replaced by three persons.
Apart from getting hit on head by cricket bat by accused is concerned, another fact of accused having hit the complainant with cricket bat on his left shoulder was also added by him, during his examination in chief and a bare perusal of the MLC of injured admitted by accused himself, patient was found conscious and oriented and there was a history of bleeding from his nose and only blunt injury on his left shoulder, injury on head, on lower limbs and chest back was mentioned in MLC, no bleeding was mentioned in the same from his head requiring any stitches etc., to be given to him as treatment. Moreover, accused had not even informed the doctor concerned that he was given beatings with a bat on his head.
Similarly, PW3 had also introduced the story of accused having accompanied by three persons and quite contrary to the documentary evidence i.e., MLC, which shows that injured was brought to hospital by his own son, it was deposed by PW3 that his father was taken to hospital by police. Not only this, but FIR No: 441/2014 Page 15 of 17 also, during his cross examination, he had admitted that he had some money dispute with accused and had denied his very presence at the spot at the time of incident.
This fact coupled with the fact that cricket bat stated to be the alleged weapon of offence was never sent to the FSL for any examination as to whether any blood marks were found present on it or not, also casts a serious shadow of doubt in the story of prosecution, regarding its use in the commission of offence at all.
So far as the incident of complainant having suffered injury is concerned, even during his cross examination, PW1 had not denied the same but had attributed the commission of offence to the accomplices of accused and not to him and had also stated that police had told him to take name of present accused, as other persons were not traceable and at their instance, he had taken his name.
It has also been stated that the accused had caused injury on shoulder of complainant with the bat, however, as is apparent from the MLC, no dislocation or fracture was mentioned in the left shoulder of complainant, hence, it seems highly impossible that if a person who had received a brutal blow on his left shoulder with a cricket bat, is not going to suffer any injury. Even otherwise the nature of injury, as mentioned in MLC is simple. Therefore, possibility of injuries suffered by complainant due to self infliction also cannot be ruled out.FIR No: 441/2014 Page 16 of 17
11. In the light of the aforesaid facts and circumstances, I have no hesitation in holding that the case of prosecution had fallen much short of bringing home the guilt of accused, so as to fasten any criminal liability on his shoulder and to convict him and hold him guilty of the offence. Prosecution has thus miserably failed to prove the guilt of accused beyond any reasonable doubt.
12. Even the citations relied upon by ld. Addl. PP for State provides for admissibility of evidence of a hostile witness in support of prosecution case subject to their corroboration by some other evidence, which is clearly missing in this case. Hence, the reliance by ld. Addl. PP for State on those two citations is also of no use and avail to him.
13. Therefore, the accused is entitled for an honorable acquittal. Accordingly, he is acquitted for offence(s) charged against him. His bail bonds and surety bonds are cancelled and surety is discharged. The bonds furnished by him under Section 437A CrPC shall remain in force for a period of six months from the date of his acquittal. Case file be consigned to record room.
ANNOUNCED IN THE OPEN COURT DATED: 31.07.2023 Digitally signed by LOKESH LOKESH KUMAR KUMAR SHARMA Date: 2023.07.31 SHARMA 15:58:58 +0530 (LOKESH KUMAR SHARMA) ADDL. SESSIONS JUDGE (FTC - 02) SOUTH EAST DISTRICT SAKET COURTS : NEW DELHI FIR No: 441/2014 Page 17 of 17