Delhi District Court
State vs :- 1- Ajit Singh, on 11 September, 2008
1
IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI
S.C.NO.13/07
STATE VERSUS:- 1- AJIT SINGH,
S/O SH. MOHINDER PAL,
R/O B-115, NIHAL VIHAR,
NANGLOI,
DELHI.
2- DEVENDER,
S/O SH. SUBHASH,
R/O RZA-46, NIHAL VIHAR,
NANGLOI,
DELHI.
FIR NO.211/06
U/S 302/308/34 IPC.
PS NANGLOI.
DATE OF INSTITUTION IN SESSIONS COURT:8-1-07.
DATE ON WHICH JUDGMENT RESERVED: 26-8-08.
DATE ON WHICH JUDGMENT PRONOUNCED 11-9-08.
JUDGMENT
Briefly stated, the case of the prosecution as unfolded by the report under Section 173 Cr.PC is as under:-
"On 8-3-06 at about 9pm four boys, namely, Sushil, Shakil, Virender and Pawan (since deceased) were coming out of Aamwala Bagh, Nihal Vihar after having consumed liquor inside the bagh. One motor cyclist however came over there from the opposite side and some altercation took place between him and the said four boys. They all gave few slaps to the motor cyclist, who out of fear ran way from over there after leaving his motor cycle. After about ten minutes, the said motor cyclist allegedly returned back with few of his friends duly armed with 'dandas'. Out of fear, Shakil and Sushil ran way from over there but, Virender and Pawan were given beating by them by means of the said S/V AJIT SINGH ETC., FIR NO.211/06 2 'dandas'. The said boys thereafter ran away from over there and Virender brought Pawan, who was also his relative to his house. However, when the condition of Pawan deteriorated in his house so, after 20-25 minutes, he was taken to Police Post Nihal Vihar and from where HC Naresh Kumar sent him to SGM Hospital. After initial examination at SGM Hospital, he was referred to LNJP Hospital by the doctors and where on 10-3-2006 he succumbed to his injuries and died. In the meantime HC Naresh Kumar had gone to the hospital but, Pawan was opined to be unfit for statement by the doctors. He accordingly recorded the statement of Virender and on the basis of his statement, he prepared a rukka and got a case registered at PS Nangloi for the offence U/S 308/34 IPC. The subsequent investigation was handed over to ASI Naresh Kumar (PW13). He accordingly along with Virender inspected the place of incident and prepared site plan. Thereafter, along with Virender and Sushil he went in search of the accused persons and accused Ajit was apprehended on the pointing out of Sushil and Virender from an electronic shop in Nihal Vihar itself. He was accordingly arrested in this case and he allegedly made a disclosure statement. In the meantime, accused Shakil also came over there and identified accused Ajit as one of the assailants. On the next day, accused Ajit led the police party to bushes in the Aamwala Bagh and got recovered the weapon of offence viz the 'danda' with which Pawan and Virender were attacked by him. Both Virender and Sushil were accompanying the police party at the time of recovery of 'danda' and they also identified it to be the weapon of offence. The same S/V AJIT SINGH ETC., FIR NO.211/06 3 was taken into possession after sealing in a pullanda with the seal of "NKC". However, upon the death of Pawan Kumar, the case was converted to one under Section 302 IPC and the investigation in the matter was taken over by Inspt. Ishwar Singh. He accordingly got prepared the scaled site plan Ex.PZ1. The postmortem examination upon the dead body of deceased Pawan was got conducted. On 10-3-2006 itself accused Devender was also arrested on the pointing out of Virender and Sushil and he too allegedly made a disclosure statement stating about his involvement in the present incident. Subsequently, on 1-4-2006 the third accused Rajesh was also arrested at the instance of Virender and Sushil. Thus, upon completion of necessary further investigation, challan was prepared and was filed in the court for trial as against accused Devender and Rajesh but, as regards Rajesh, who was found to be a 'Juvenile', the same was filed before the 'Juvenile Justice Board'.
Upon committal of the case to the Court of Sessions, Charge for the offence u/S 302/308/34 IPC was framed against accused Ajit Singh and Devender Singh to which they pleaded not guilty and claimed trial.
Prosecution thereafter in order to prove its case examined 13 witnesses. The accused persons were thereafter examined u/S 313 Cr.P.C. They however refused to lead any evidence in their defence.
PW6 Virender Kumar was the injured/complainant. In his deposition, he though reiterated the prosecution story while proving his complaint Ex.PW6/A lodged with the police.
S/V AJIT SINGH ETC., FIR NO.211/06 4 PW7 Shakil @ Kapil and PW11 Sushil Kumar were allegedly the two eye witnesses of the incident. They both though deposed almost on identical lines reiterating the prosecution story but, drifted away from it on certain material aspects especially as regards the identity of the present accused persons being the assailants.
I shall be however discussing at length the deposition of PW6 Virender Kumar, PW7 Shakil @ Kapil and PW11 Sushil Kumar at a later stage of my judgment.
PW1 HC Tarif Singh was the MHC(M), PS Nangloi with whom the various case property articles were deposited with. He had subsequently sent the case property articles to FSL through Ct. Balbir Singh vide RC No.150/21/06.
PW2 Brijesh Singh proved the MLC of Pawan Kumar which was initially prepared at SGM Hospital by one Dr. Fazil, who was no longer available in the services of hospital.
PW3 Dr. Manoj proved the MLC of injured Virender as was prepared by one Dr. Nadeem, who also was no longer available in the services of hospital.
PW4 Dr. Vinod, Senior Resident had carried out the postmortem examination upon the dead body of deceased Pawan at Maulana Azad Medical College vide his report Ex.PW4/A. Later on, on 5-4-06 he had also inspected the impugned weapon of offence viz the 'danda' vis-a-vis the injuries as were found by him on the dead body of deceased Pawan and S/V AJIT SINGH ETC., FIR NO.211/06 5 gave his opinion Ex.PW4/B. PW5 HC Jai Bhagwan was the duty officer, PS Nangloi, who had recorded FIR Ex.PW5/A. PW8 Dr. Indermeet Singh produced the record of the 'ambulance' vide which Pawan was referred from SGM Hospital to LNJP Hospital.
PW9 ASI Naresh Kumar was the then head constable at PP- Nihal Vihar, who had carried out the initial proceedings and had got the present case registered. He accordingly reiterated the investigation carried out by him besides proving the various documents/memos prepared by him in this regard.
PW10 Ct. Jaswant Singh was the DD writer, PP-Nihal Vihar, who had recorded DD no.12 Ex.PW10/A regarding information given by Duty Ct. Yashvir Singh of LNJP Hospital about the death of Pawan at LNJP Hospital.
PW12 SI Ramesh Singh had accompanied Inspt. Ishwar Singh, the IO of the case in the investigation. He reiterated the investigation which was carried out in his presence by Inspt. Ishwar Singh and also proved the documents/memos as were prepared by Inspt. Ishwar Singh as Inspt. Ishwar Singh had since expired.
PW13 ASI Naresh Kumar had taken over the investigation of the matter after registration of the case and had arrested accused Ajit and effected recovery of impugned weapon of offence viz the 'danda' at his instance. He accordingly stated about the investigation carried out by S/V AJIT SINGH ETC., FIR NO.211/06 6 him besides proving the various documents/memos prepared by him during the course of investigation.
In their statements u/S 313 Cr.P.C. the accused persons, namely, Ajit Singh and Devender however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely.
I have heard Ld. APP, learned defence Counsels Sh. SS Tyagi and Sh. Anil Sethi for both the accused persons.
It was submitted by ld. Counsels for both the accused persons that though the initial incident of quarrel between Virender and his associates wherein Ajit Singh ran away from the spot after leaving his motor cycle is not disputed but it was the complainant party, who had tried to assault and rob him. It was further stated that as per the prosecution witnesses themselves the place of incident was completely dark having no source of light over there and thus it was not possible for Virender and his accomplices, who admittedly were under the influence of alcohol to identify the assailants. It was further stated that both PW7 Shakil and PW11 Sushil Kumar have chosen to not to support the case of the prosecution on certain material aspects and especially as regards the identity of the accused persons involved in the incident. Even PW6 Virender Kumar was stated to have materially improved upon his previous statement and was also vague in his deposition. It was further stated that neither in the initial rukka nor in the MLC prepared at SGM Hospital, the name of the assailants were disclosed. It was also stated that PW6 S/V AJIT SINGH ETC., FIR NO.211/06 7 Virender Kumar and PW7 Shakil have specifically stated that the assailants were known to Sushil Kumar from before but, PW11 Sushil Kumar vehemently denied this fact. It was thus stated that in view of the vague nature of deposition of the prosecution witnesses and no TIP having been got conducted, the identification of the accused persons and especially that of Ajit Singh during the course of trial for the first time is not reliable and admissible in law. It was thus stated that the prosecution has miserably failed in proving its case against both the accused persons beyond shadows of all reasonable doubts. They were thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsels stating that the prosecution witnesses have deposed in a cogent and convincing manner and the identity of the accused persons have been categorically established as they were the resident of the same area where the complainant party was residing. Both the accused persons were thus prayed to be convicted.
I have carefully perused the record.
As per the prosecution case itself the quarrel between the parties admittedly took place in two incidences. Initially when Virender along with Pawan, Shakil and Sushil were coming out of the Aamwala Bagh then accused Ajit Singh came from the opposite side on a motor cycle and a quarrel took place over there during the course of which Ajit Singh left the place leaving his motor cycle over there itself. This incident S/V AJIT SINGH ETC., FIR NO.211/06 8 has even not been disputed by Ajit Singh himself in his statement u/S 313 Cr.PC. However, it will be worthwhile to mention over here that the various prosecution witnesses have however contradicted each other as to in what manner the impugned incident at that time took place. PW6 Virender in his initial complaint lodged with the police stated that when he and his associates were coming out of the Aamwala Bagh after consuming liquor then, a motor cyclist came over there and with whom they had an exchange of abuses and pursuant to which they all gave beating to him. However, in his deposition in the court as PW6 Virender Kumar he stated that when the motor cyclist came over there then, the motor cycle brushed again them and upon which exchange of hot words took place between them. PW7 Shakil @ Kapil however stated that when the motor cyclist came over there then due to fear he escaped after leaving the motor cycle. He also stated that he and his associates had taken drinks inside the Aamwala Bagh. At the same time, PW11 Sushil Kumar stated that they all were coming out of the Aamwala Bagh after responding to the call of nature and when accused Ajit Singh came from the side of Nihal Vihar market on his motor cycle then a quarrel took place between accused Ajit Singh and Virender and suddenly 8-10 boys came over there. PW11 Sushil Kumar was even cross examined in this regard by ld. APP but, he categorically denied that he and his three friends had consumed liquor on that day.
Thus, though accused Ajit has not disputed the aforesaid incident of a quarrel having taken place between him and Virender, S/V AJIT SINGH ETC., FIR NO.211/06 9 Pawan, Shakil and Sushil Kumar and in which he was even given slaps by them but, I have deliberately shown the deposition of the aforesaid three star witnesses of the prosecution to highlight that they have been inconsistent and contradictory to each other even qua the said initial incident.
As regards the second part of the prosecution story wherein it has been alleged that accused Ajit returned back with his co-accused Devender and Rajesh (since being tried before Juvenile Justice Board) duly armed with 'dandas' and gave beating to Virender and Pawan while Sushil and Shakil ran away from over there due to fear, I may state that the said incident has been vehemently denied by both accused Ajit and Devender. In these circumstances, even the injuries sustained by Pawan or Virender have also not been disputed by the accused persons, for they have denied their involvement in the incident itself. The death of Pawan consequent to the said injuries has also thus not been disputed.The accused persons have though disputed that the said injuries could not have been caused by 'danda' Ex.P1 which was allegedly recovered at the instance of accused Ajit Singh.
I shall be dealing with that aspect of the matter at a later stage of my judgment. The only issue which thus arises for consideration before this court and upon which accused persons have also been harping upon during the course of entire trial is as to the identity of the present accused persons being the assailants of Virender and Pawan. It is thus only to be seen whether accused Ajit Singh and accused Devender were the S/V AJIT SINGH ETC., FIR NO.211/06 10 assailants of Virender and Pawan or not.
In this regard, we have the deposition of three witnesses of the prosecution, namely, PW6 Virender Kumar, PW7 Shakil @ Kapil and PW11 Sushil Kumar, it will be worthwhile to mention that neither the initial complaint Ex.PW6/A lodged with the police nor the rukka Ex.PW5/A prepared consequent thereto speaks about the identity of any of the assailants. It is also completely silent as to the physical description of the said assailants. Even the MLC of the two injured which was prepared initially at SGM Hospital is silent as to the identity of the assailants. Thus, it is clear that till the stage of registration of FIR the identity of the two assailants was not known to the police as the same was not at all disclosed by Virender, who was only examined till then. It will be also important to mention over here that in the statement Ex.PW6/A Virender did not state at all that he can identify any of the said assailants if shown to him or whether any of them was known to him from prior to. It is in these circumstances if the deposition of PW6 Virender as recorded during the course of trial is seen then, it is found that though initially he stated that accused Ajit was arrested at his instance and that of Shakil but, at a later stage of his examination-in-chief itself, he stated that he had not initially seen the accused at the time of incident as it was night time but, he had properly identified him as being his assailant later on after his arrest. In fact, PW6 Virender even initially stated that accused Ajit was arrested on his pointing out and that of Shakil and that accused Devender was arrested on his pointing out and that of Sushil. However, in S/V AJIT SINGH ETC., FIR NO.211/06 11 his cross examination PW6 Virender stated that Sushil had pointed out accused Ajit as being the assailant.
PW7 Shakil @ Kapil also stated that he cannot identify the said motor cyclist, who had run away from the spot at the time of initial quarrel. As regards the subsequent incident he stated that he was not a witness of the incident. He also stated that he had not seen all the accused persons as it was jungle and there was darkness. He further went on to state that he had seen accused Ajit on the next day in the police station only. He disowned the prosecution story about the second incident wherein the said motor cyclist had allegedly returned back with two of his accomplices. He also denied having stated to the IO that his friend Sushil knew the identity of the said three assailants as they were living in Nihal Vihar itself. He thereby contradicted his previous statement u/S 161 Cr.PC made to the IO. In fact, he was confronted on a number of scores with his previous statement as he chose to disown the prosecution story on a number of material aspects.
PW11 Sushil Kumar also stated that on the next day of the incident, he was called to PP-Nihal Vihar and where three boys were shown to him and from amongst them, he had identified Ajit to be one of the assailant of Pawan. He however stated that he had not identified the other two boys sitting over there. He thus disowned the prosecution story qua accused Devender being one of the assailants. He further went on to state that accused Ajit was not known to him from prior to the incident. He also denied that on the next day on his pointing out accused Ajit was S/V AJIT SINGH ETC., FIR NO.211/06 12 apprehended from his electric shop in Nihal Vihar. He thereby disowned the prosecution story qua this important aspect of apprehension of accused Ajit at his pointing out by the IO. He specifically denied that accused Ajit was identified even by Virender in his presence as being the assailant. He also denied that thereafter on 10-3-06 accused Devender was arrested on his pointing out or that of Virender from near Wine Shop, Gandanala, Nihal Vihar. In fact qua accused Devender PW7 Shakil also disowned the prosecution story as being the assailant of Pawan and Virender. PW6 Virender also stated that at the time of incident he had only slightly identified accused Devender.
PW6 Virender stated that as at the time of incident, it was night time so, he had not initially seen the accused. He also stated later on in his cross examination that it was night time and it being the place of dense tress so, it was difficult to know as to in which direction Shakil and Sushil ran away. He also stated that by that time the persons, who had come to the said bagh for evening walk had gone back. PW7 Shakil stated in his cross examination that there was no light in the jungle and it was completely dark over there. Similarly, PW11 Sushil Kumar also stated that he could not count the number of assailants, who had come to the spot as it was too dark.
PW13 ASI Naresh Kumar also stated that there was no electric pole near the place of incident. He also stated that the nearest pakka road from the spot was about hundred yards away. He also admitted that in none of the two site plans of the place of incident any electric pole or S/V AJIT SINGH ETC., FIR NO.211/06 13 source of light has been shown.
Thus, it is clear that at the time of incident i.e at about 9pm, it was completely dark in the said bagh and no source of light was available in the vicinity. It also stands clear on record that Virender, Pawan, Shakil and Sushil all had consumed liquor a few moment ago in the said Aamwala Bagh itself. It is also clear that they all were in an inebriated condition and in the same state they picked up a quarrel with accused Ajit and even gave beating to him. Though, ordinarily an inference would have arisen that after the initial incident accused Ajit must have come back to the spot along with some of his accomplices to not only claim back his motor cycle but to also take revenge from the said four boys. However, in a criminal trial, it is the bounden duty of the prosecution to prove its case beyond shadows of all reasonable doubts and no conclusions can be drawn merely on the basis of conjectures and surmises. The court cannot proceed to draw presumptions from the evidence of the prosecution case when it lacks any substantiative basis for the same.
Thus, coming back to the deposition of the three star witnesses it is clear that PW6 Virender had not clearly seen the assailants at the time of the incident. As per him, he and Sushil had pointed out accused Ajit and accused Devender to the IO after the incident. However Sushil on the other hand completely denied the prosecution story in this regard and he merely stated that he had seen accused Ajit in the police station only. Similarly, Shakil also disowned the prosecution story and stated that he S/V AJIT SINGH ETC., FIR NO.211/06 14 was shown accused Ajit only in the police station on the next day. PW11 Sushil also stated that accused Ajit was not known to him from prior to the incident. As regards accused Devender PW6 Virender Kumar clearly stated that he had slightly seen him at the time of incident. While PW7 Shakil @ Kapil and PW11 Sushil Kumar have completely denied his involvement in the incident.
Even as regards the recovery of danda Ex.P1 at the instance of accused Ajit, PW11 Sushil Kumar has completely denied the same. He even failed to identify the said danda during the course of his deposition in the court. Even otherwise PW4 Dr. Vinod also stated that such kind of injuries as were found on the body of Pawan were possible by any other danda also and no specific opinion co-relating the impugned danda with the injuries found on the body of Pawan was given. He even failed to opine as to from which end of the danda the injuries might have been caused. He further stated that such kind of dandas were easily available. Thus, in my considered opinion, the prosecution has failed to lead any cogent evidence to specifically connect danda Ex.P1 with the offence in question. Furthermore, in view of the deposition of PW11 Sushil Kumar, who denied that any danda was recovered at the instance of accused Ajit. The recovery of the same also seems to be doubtful. In fact, PW6 Virender Kumar also stated that after arrest of accused Ajit he led the police party to said Aamwala Bagh and got recovered the impugned danda from the bushes over there. He thereafter stated that on 10-3-2006 accused Devender was arrested on his pointing out. Thus, as per PW6 Virender S/V AJIT SINGH ETC., FIR NO.211/06 15 Kumar the said danda was recovered by the police on the day of arrest of Ajit itself i.e on 9-3-06 he thereby contradicted the prosecution story vide which the said danda was recovered on 10-3-2006. Even qua the disclosure statement alleged to have been made by accused Ajit or the sealing of the danda in a pullanda with the seal of NKC, PW6 Virender Kumar was initially silent in his deposition but, stated the said facts after ld. APP chose to put leading question in this regard to him.
In view of the aforesaid nature of deposition of the various prosecution witnesses, I need not to dwell into the various other improvements and contradictions made by PW6 Virender Kumar, PW7 Shakil and PW11 Sushil Kumar in any further detail as in my considered opinion the prosecution has miserably failed to establish the identity of accused Ajit and Devender being the assailants of Virender and Pawan. In my aforesaid view, I also find support from the case STATE OF MP VS. CHAMRU @ BAGWAN DASS ETC. AIR 2007 SC 2400.
I thus hereby giving benefit of doubt to both the accused persons, acquit accused Ajit Singh and Devender of the offence U/S 302/308/34 IPC.
They be released from JC if not required in any other case. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 11-9-2008.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI/11-9-08 *rk S/V AJIT SINGH ETC., FIR NO.211/06 16 FIR NO.211/06 U/S 302/308/34 IPC.
PS NANGLOI.
11-9-08 Present : Ld. APP for the State.
Both accused are present in JC with their counsels. Vide my separate detailed judgment dated 11-9-08 both accused persons, namely, Ajit Singh and Devender have been acquitted of the offence U/S 302/308/34 IPC.
They be released from JC if not required in any other case. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 11-9-2008.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 11-9-2008 S/V AJIT SINGH ETC., FIR NO.211/06