Delhi District Court
Sc No.56/14 State vs Rajesh Besar Etc. Page No. 1/ on 27 November, 2015
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI
COURTS, DELHI.
IN THE MATTER OF
SESSIONS CASE NO.56/14 & OLD NO. 77/13
ID No. 02401R0397562013
FIR No. 332/13
P.S Rajouri Garden
U/S 307/34 IPC
STATE
VERSUS
(1) Rajesh Besar
S/o late Ramswaroop
R/o C173, Double Storey,
Balmiki Mohalla, Tagore Garden Extn.,
New Delhi 27.
(2) Kuldeep
S/o Sh.Ishwar Singh
R/o H.No. WZ504,
Narayna Village,
Delhi - 28.
(3) Rakesh
S/o late Ramswaroop
R/o C88, 80 Gaj, Tagore Garden Extn.,
New Delhi - 27.
(4) Rajender @ Golu @ Nakta
S/o Sh.Lekh Raj
R/o C152, Double Storey,
Balmiki Mohalla,
Tagore Garden Extn.,
New Delhi 27.
SC No.56/14 State Vs.Rajesh Besar etc. Page No. 1/
DATE OF INSTITUTION : 05.10.2013
DATE OF RESERVING THE ORDER : 27.11.2015
DATE OF DECISION : 27.11.2015
JUDGEMENT
1. The essential facts of the case are that on receipt of DD no. 57A, SI Hansa Ram alongwith Ct.Gaurav reached at DDU hospital and collected the MLC no. 14478/13 of injured Ajay Choudhary, who was found admitted in the hospital. The IO had also collected the MLC bearing no. 14635/13 of injured Chanchal Kishore who was also found admitted in the hospital. Ajay Choudhary could not give his statement due to the pain and thereafter, IO recorded the statement of Sh.Chanchal Kishore to the effect that on 13.06.2013 at about 08:30 PM, a boy by the name of Tarun had come at the office of Ajay Choudhary i.e.Ajay Choudhary Properties and told Ajay Choudhary that Rajesh Besar is calling him. Thereafter, he alongwith Ajay Choudhary reached at the office of Rajesh Besar i.e.Shivam Properties B582, Shivaji college Road, in front of Raghubir Nagar, where Rajesh Besar and his brother Rakesh Besar attacked them with Sword. It is further mentioned that in the meanwhile, the brother in law of Rajesh Besar (Saala) namely Kuldeep and employee of Rajesh Besar namely Golu @ Nakta had also attacked them with Baseball bat and rod, upon which Ajay Choudhary fell down on the road. Thereafter, he with the help of public persons, took the injured Ajay Choudhary to Khetarpal hospital where the doctors of the SC No.56/14 State Vs.Rajesh Besar etc. Page No. 2/ hospital did not admit him. Thereafter, he took the injured to DDU hospital and got him admitted there.
2. On the basis of statement of Sh.Chanchal Kishore, FIR No. 332/2013 U/s 307/34 IPC PS Rajouri Garden was registered against all the accused persons and the investigation of this case was carried out.
3. During investigation, site plan was prepared by the IO at the instance of Chanchal Kishore. IO Collected the exhibits. ON 17.06.2013 Rakesh Besar was arrested. During investigation, on 19.06.2013, accused Rajesh Besar and Rajender @ Golu @ Nakta were also arrested. Weapon of offence got recovered. IO collected the result of MLC of the injured. On the discharge summary of injured Ajay Choudhary, the doctor has opined the nature of injury as "Grievous". After completion of investigation, chargesheet was filed before the court.
4. Charge for the offence punishable U/s 307/325/34 IPC against all the accused persons and Charge for the offence U/s 25/27/54/59 A.Act against accused Rajesh Besar were framed by this court on 13.08.2014 to which they pleaded not guilty and claimed trial.
5. To prove its case, prosecution has examined as many as 5 witnesses i.e. PW1 Sh.Ajay Chodhary, PW2 Sh.Manish Khurana, PW3 Sh.Chanchal Kishore, PW4 Ct.Anil Kumar and PW5 SI Hansa Ram.
6. Thereafter, Statement of accused Rajesh U/s 313 Cr.P.C. was recorded, wherein he has stated that he is innocent and has been SC No.56/14 State Vs.Rajesh Besar etc. Page No. 3/ falsely implicated in this case. However, the accused Rajesh Besar did not lead any defence evidence.
7. As no incriminating evidence has come on record against other accused persons, statements U/s 313 Cr.P.C. stands dispensed with against them.
8. PW1 Sh.Ajay Choudhary has stated that he used to work as a property dealer at Raghuvir Nagar. On 13.06.2013, at about 8:30 PM, he was present outside his office and was going and on the way there was some quarrel going on between some persons. He stopped to see the quarrel and also intervened in the quarrel and in the meanwhile, somebody hit him with danda on his head from his back. He fell down and became unconscious and regained his consciousness at DDU Hospital. Police came at the hospital but his statement was not recorded by the police. He remained unconscious for about 23 days. This witness has further stated that he could not tell who caused him injuries with danda.
This witness was declared hostile and crossexamined by the Ld. Addl. P.P. for the State wherein he has stated that he did not make any statement of police on 20.06.2013 wherein, he would have stated that Rajesh Besar and his associates having enmity with him due to his property and finance business. This witness has denied the suggestion put by the Ld.Addl. P.P.for the State that on 13.06.2013 at about 8:30 PM, Rajesh Besar had called him through some boy at his office situated at B582, Raghuvir Nagar, Road No. 28 in the name and title of Shivam Properties and when he reached at the office of Rajesh Besar SC No.56/14 State Vs.Rajesh Besar etc. Page No. 4/ along with Chanchal Kishore, he was surrounded by Rajesh Besar, Rakesh Besar, Kuldeep S/o Ishwar Singh and Golu @ Nakta. This witness has further denied the suggestion put by ld.Addl. P.P.for the State that the above mentioned persons attacked him with the intention to kill. This witness also denied the suggestion put by the Ld.Addl. P.P.for the State that accused Rajesh Besar and Rakesh Besar attacked him with Sword, while Kuldeep brotherin law of Rajesh attacked with iron rod and Golu @ Naksh attacked on him with baseball and he fell down, thereafter, all of them checked with their hands whether he was breathing or dead, but he hold his breath and they thought that he became dead and thereafter, they ran away. This witness has further denied the suggestion that public persons took him to a nearby Khetar Pal Nursing Home with his friend Chanchal Kishore and on the refusal of the doctor, he was taken to DDU hospital, where police had recorded statement of his associate Chanchal Kishore, since he was having pain and on 20.06.2013, police recorded his statement at Khetar Pal Nursing Hospital. This witness has further denied the suggestion that he has been won over by the accused persons or that due to this reason he was suppressing the true facts. This witness denied the contents of statement Mark PW1/A. He has further denied the suggestion that intentionally he was suppressing the identity of the accused persons or that all the accused persons have caused injuries to him in the incident on 13.06.2013 or that he has deposed falsely in order to save the accused persons.
SC No.56/14 State Vs.Rajesh Besar etc. Page No. 5/
9. PW2 Sh.Manish Khurana has deposed that he is a property dealer. On 13.06.2013 at about 8.30 PM, he was present at his office and thereafter, he went to 'Tite Ka Dhaba' to purchase dinner. There, in front of the Tite Ka Dhaba, some persons were giving beatings to Ajay Choudhary with baseball bats and iron rod. After giving beatings, all of them ran away, while the injured Ajay Choudhary was lying on earth smeared with blood. This witness has further stated that he can identify those boys, who gave beatings to Ajay Choudhary, but today none of those boys were present in court today.
This witness was turned hostile and crossexamined by the Ld.Addl. P.P.for the State wherein he has denied the suggestion put by Ld.Addl. P.P.for the State that the accused persons namely Rajesh Besar, Rakesh Baser, Kuldeep and Golu @ Naksh were assaulted Ajay Choudhary with Sword, danda and Saria. He has also denied the suggestion of Ld.Addl. P.P.for the State that Rajesh and Rakesh Baser were having Sword in their hands and Kuldeep who used to do Cable work, was holding Saria in his hand, while Golu @ Naksh was holding baseball bat in his hand. He has also denied the suggestion of Ld.Addl. P.P.for the State that he did not intervene in the matter due to fear of Rajesh Baser as previously he was detained in the murder case and due to this reason, he did not make any statement at the spot. He has also denied the suggestion of Ld.Addl. P.P.for the State that the accused persons namely Rajesh Baser, Kuldeep, Rakesh Baser and Rajender @ Golu @ Naksh are same persons who were giving SC No.56/14 State Vs.Rajesh Besar etc. Page No. 6/ beatings to Ajay Choudhary or that he was deliberately not identifying them in order to save them and he has been won over by the accused persons or that he was concealing true facts. This witness has denied the contents of Mark PW2/A and stated that the same were not recorded by the IO on his dictation correctly and intentionally he was suppressing the true facts.
10.PW3 Sh.Chanchal Kishore has stated that he was doing job with Property dealer Sh.Ajay Choudhary and used to work as office attendant and whenever any clients used to visit their office, he used to note down their names and addresses. He has further stated that on 13.06.2013, he was present in the property dealing shop at N Block, Raghubir Nagar, Delhi and att about 08:30 PM, one unknown boy came to their shop and informed him about the quarrel of Ajay Choudhary with some unknown persons. Thereafter, he went to Shivaji College Road, Raghubir Nagar, Delhi near 'Tite Ka Dhaba', where Ajay Choudhary was lying on road in injured condition. He took him to Khetarpal Hospital, where doctors did not admit him being a police case. Thereafter, he took him to DDU hospital and got him admitted there. This witness has further stated that police visited the hospital and obtained his signatures on blank papers. He did not remember as to what happened thereafter. This witness has identified his signatures at point A on document Ex.PW3/A. Lateron, Ajay Choudhary was shifted to a private hospital. This witness has identified his signatures at point A on the site plan Ex.PW3/B. This witness was turned hostile and crossexamined by SC No.56/14 State Vs.Rajesh Besar etc. Page No. 7/ the Ld.Addl. PP for the State wherein he has denied the suggestion put to him by the Ld.Addl. P.P.for the State that when he got the injured Ajay Choudhary admitted at DDU hospital, he was in conscious state. He has further denied the suggestion put by the Ld.Addl. P.P.for the State that on 13.06.2013, at 08:30 PM, one boy namely Tarun came to their office and told Ajay Choudhary that Rajesh Besar was calling him and he alongwith Ajay Choudhary left their office and reached in front of the office of accused Rajesh Besar titled as Shivam Properties, B582, Shivaji College Road, Raghubir Nagar, Delhi, where Rajesh Besar and his brother Rakesh Besar with Swords and Kuldeep brother in law of Rajesh Besar and employee of Rajesh Besar namely Golu @ Naksh with baseball and rod attacked over him and Ajay Choudhary with the intention to kill us and thereafter Ajay Choudhary thereafter fell on the road and he run away in order to save him. He has further denied the suggestion put to him by the Ld.Addl. P.P.for the State that Rajesh Besar, Rakesh Besar, Kuldeep and Golu @ Naksh attacked them with the intention to kill them and he requested the police to take legal action against them. This witness has further denied the suggestion put to him by the Ld.Addl. P.P. For the State that deliberately he was suppressing the true facts in order to save the accused persons due to their fear and he was misleading the court and giving evasive replies to conceal the truth and he was not identifying the accused persons and showing my ignorance in order to save them.
11.PW4 Ct.Anil Kumar has deposed that on 19.06.2013, he had joined SC No.56/14 State Vs.Rajesh Besar etc. Page No. 8/ investigation alongwith IO/SI Hansa Ram. The accused Rajesh Besar was also accompanied them and he led them to "Anda Godown", Rajdhani Market, Tagore Garden Extension. A raid was conducted at the abovesaid premises and during raid, the accused Rajesh Besar and Rajender @ Golu were apprehended. This witness has proved the Arrest memo of accused Rajesh Besar as Ex.PW4/A and that of accused Rajender @ Golu as Ex.PW4/B, their personal searches vide memos Ex.PW4/C (that of accused Rajender @ Golu) and Ex.PW4/D (that of accused Rajesh Besar) and their disclosure statements as Ex.PW4/E (that of accused Rajesh Besar) and Ex.PW4/F (that of accused Rajender @ Golu). He has further stated that the accused Rajender @ Golu got recovered weapon of offence i.e.stick from the corner of Anda Godown, Rajdhani Market, Tagore Garden, Delhi and the same was seized vide memo Ex. PW4/G after sealing the with the seal of HR. This witness has further stated that the accused Rajesh Besar got recovered a Sword from the corner of Anda Godown, Rajdhani Market, Tagore Garden and the same was seized vide memo Ex. PW4/H after sealing the same with the seal of HR. Pointing out memo was also prepared which is Ex.PW4/I and Ex.PW4/J. This witness has correctly identified accused Rajesh Besar and Rajender @ Golu. This witness has also identified the stick as ex. P.1 and Sword as Ex. P.2.
12.PW5 SI Hansa Ram has stated that on 13.06.2013, on receipt of DD No. 57A, he along with Ct. Gaurav went to DDU Hospital, Hari Nagar and obtained MLC No. 14478/13, vide which injured Ajay SC No.56/14 State Vs.Rajesh Besar etc. Page No. 9/ Chaudhary was found admitted. He also obtained MLC No. 14635/13, vide which injured Chanchal Kishore was found admitted. The injured Ajay Chaudhary was not in a position to give any statement, as he had severe injuries, therefore, he examined the injured Chanchal Kishore and recorded statement which is proved as Ex.PW3/A. On the basis of complaint, he prepared rukka Ex. PW5/A and got the FIR registered through Ct. Gaurav. He has further stated that thereafter, he along with injured Chanchal Kishore went to the spot and he prepared site plan on the instance of Chanchal Kishore which is proved as Ex. PW3/B. This witness has further stated that he called Crime Team at the spot. The spot was inspected by the Crime Team and the exhibits were lifted, same were sealed with the seal of HR and seized vide memos Ex.PW5/B, Ex. PW5/C, Ex. PW5/D. He again went back to hospital. Blood stained clothes of the injured Ajay Chaudhary were handed over to him by the injured and he seized vide memo Ex.PW5/E. This witness has proved the arrest memo of accused Rakesh Besar as Ex.PW5/G, his personal search memo Ex. PW5/H and disclosure statement Ex. PW5/F, Pointing out memo Ex. PW5/I. This witness has also proved the Arrest memo of accused persons namely Rajesh Besar and Rajender @ Nakta as Ex. PW4/A and Ex. PW4/B, personal search memos Ex. PW4/C and Ex.PW4/D, disclosure statements of accused persons as Ex.PW4/E and Ex.PW4/F, pointing out memos Ex. PW4/I and Ex.PW4/J. SC No.56/14 State Vs.Rajesh Besar etc. Page No. 10/ This witness has further stated that the accused Rajesh Besar got recovered one sword and accused Rajender @ Nakta got recovered one Baseball bat (stick) and he seized stick vide memo Ex.PW4/G and the Sword vide memo Ex.PW4/H. Both the weapon of offence were converted into pullanda and sealed with the seal of HR prior to the seizure. He has further stated that the accused Kuldeep surrendered himself before the Court and he arrested him with the permission of the Hon'ble Court vide arrest memo Ex. PW5/J, prepared his personal search memo as Ex.PW5/K and recorded disclosure of the accused as Ex. PW5/L and he obtained one day PC of the accused. The accused Kuldeep pointed out place of occurrence, memo in this regard is proved as Ex.PW5/M. He has further stated that the accused led them to his house and got recovered one iron rod from the roof of his house. He converted the iron rod in pullanda sealed with the seal of HR and seized vide memo Ex. PW5/N. This witness has identified the baseball and Sword as Ex. P.1 and Ex. P.2 and iron rod Ex. P.3.
13.I have heard Ld.Chief. P.P.for the State and Sh.R.S.Malik, ld. Counsel for all the accused persons and have perused the record carefully.
14.It is vehemently contended by the ld.defence counsel for all the accused persons that the accused persons have been falsely implicated in this case. All the witnesses have turned hostile. It is prayed that all the accused persons be acquitted.
15.On the other hand, it is contended by the Ld.Chief Public Prosecutor for the State prayed that all the accused persons be SC No.56/14 State Vs.Rajesh Besar etc. Page No. 11/ convicted.
16.In the present case, PW1 Sh.Ajay Choudhary and PW3 Sh.Chanchal Kishore are injured persons, however, they have turned hostile and were crossexamined by the Ld.Chief PP for the State wherein they denied all the suggestions put to them by the Ld.Chief PP for the State. PW1 Sh.Ajay Choudhary has categorically denied the suggestion put by the Ld.Chief PP for the State that all the accused persons have attacked him and caused injuries to him. PW3 Sh.Chanchal Kishore has also categorically denied the suggestion put to him by the Ld.Chief PP for the State that when they reached the spot, accused Rajesh Besar and his brother Rakesh Besar attacked them with Swords. He also denied the suggestion put to him by the Ld.Chief PP for the State that accused Kuldeep brother in law of Rajesh Besar and employee of Rajesh Besar namely Golu @ Nakta attacked them with baseball and rod.
17.PW2 Sh.Manish Khurana is the other public witness in this case and he has also not supported the case of the prosecution and turned hostile.
18.In view of above discussion, I am of the considered view that the prosecution is not able to prove its case beyond reasonable doubt for the offence U/s 307/325/34 IPC against all the accused persons. Accordingly, all the accused persons namely Rajesh Besar, Rakesh Besar, Kuldeep and Rajender @ Golu are hereby acquitted for the offence U/s 307/325/34 IPC.
19.In the present case, accused Rajesh Besar is also chargesheeted SC No.56/14 State Vs.Rajesh Besar etc. Page No. 12/ for the offence U/s 25/27/54/59 A.Act.
20.Now the question arises as to whether the accused Rajesh Besar can be held guilty and convicted for the offence U/s 25/27/54/59 A.Act as a Sword was recovered from the possession of accused Rajesh Besar.
21.In this regard, the prosecution has examined witness PW4 Ct.Anil Kumar and the IO PW5 SI Hansa Ram. PW4 Ct.Anil Kumar has deposed that after apprehension, accused Rajesh Besar got recovered a Sword from the corner of Anda Godown, Rajdhani Market, Tagore Garden, Delhi and the said Sword was converted into pullanda, sealed with the seal of HR and seized vide memo Ex.PW4/H. In the crossexamination, this witness has stated that Anda Godown is at a distance of 500 mtrs. from the PS and no public person was asked to join the investigation. This witness has further stated that he did not know as to who is the owner of Anda Godown, Rajdhani Market, Tagore Garden Extension and in his presence, IO did not call the owner of Anda Godown. The godown has a shop and the said shop was closed at that time. No enquiry was made by the IO in his presence, regarding ownership of the godown. This witness has further stated that no public person was called prior to the recording of the disclosure statement of accused Rajesh Besar and he and the IO did not offer their searches to the accused persons. This witness has further stated that Sword and Stick are easily available in the market.
22.PW5 SI Hansa Ram has deposed that on 18.06.2013, he made SC No.56/14 State Vs.Rajesh Besar etc. Page No. 13/ search for the coaccused Rajesh Besar and Rajender @ Nakta. Both the abovesaid accused persons were apprehended from the Andewala Godown, Rajdhani Market.
In the crossexamination, this witness has stated that during investigation, he did not get the ownership proof of Anda Godown and did not verify or collect the ownership proof of the room on the first floor of Anda Godown. This witness has further stated that no measurement or the sketch of the Sword was prepared by him.
23.As the IO has not joined any public witness during investigation, I am of the view that the IO was required to join independent witness to prove that the Sword was recovered from the possession of accused Rajesh Besar.
24.Ld.Defence counsel has placed reliance upon the Judgments titled as :
(1) Nanak Chand Vs. The State of Delhi 1991 (1) C.G.Cases 114 (HC), wherein it is held that :
"Nonjoining of independent witnesses of the locality caused doubt on prosecution case. Order of conviction set aside".
(2) State of U.P. Vs. Munna 1973 CRI.L.J. 1708 (V 79 C
518), wherein it is held that :
"Possession of Kirpan not an offence unless its possession is prohibited by a Notification issued under S.4".
25.In view of above discussion, I am of the view that as PW1 SC No.56/14 State Vs.Rajesh Besar etc. Page No. 14/ Sh.Ajay Choudhary, PW2 Sh.Manish Khurana and PW3 Sh.Chanchal Kishore do not support the case of the prosecution and vide this Judgement, all the accused persons have been acquitted for the offence punishable U/s 307/325/34 IPC and from the testimonies of PW4 Ct.Anil Kumar and PW5 SI Hansa Ram, accused Rajesh Besar cannot be convicted for the offence U/s 25/27/54/59 A.Act. Accordingly, accused Rajesh Besar is also acquitted for the offence U/s 25/27/54/59 A.Act.
All the accused persons are further directed to furnish bail bonds and surety bonds for a sum of Rs.1,00,000/each (Rupees one lac each) with one surety each in the like amount in view of Provisions of Section 437A Cr.P.C.
Case property, if any, of the present case be disposed off/destroyed, after the expiry of date of Appeal.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON:27.11.2015. ASJ05 (West), THC, Delhi.
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