Delhi District Court
State vs Arjun Rana And Others -:: Page 29 Of 29 ::- on 27 February, 2017
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
SPECIAL JUDGE (NDPS) NORTH WEST,
ADDITIONAL SESSIONS JUDGE, ROHINI COURTS, DELHI
New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
State
versus
1. Mr.Arjun Rana
Son of Mr. Suresh
Resident of House No. 279, VPO Rithala, Delhi.
2. Mr. Anshuman
Son of Mr. Anil Kumar
Resident of House No. A-10, Rajiv Nagar, Begampur, Delhi.
3. Mr.Harpreet
Son of Mr.Puran Singh
Resident of House No.C-376, Avantika Sector-1, Rohini, Delhi.
First Information Report Number : 22/2012.
Police Station : South Rohini.
Under sections 323/279/336/337/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 25.10.2012.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 13.05.2014.
Arguments concluded on : 27.02.2017.
Date of judgment : 27.02.2017.
Appearances: Ms. Nimmi Sisodia, Additional Public Prosecutor for the
State.
All the accused persons are on bail with counsel,
Mr. S.P.Singh Maan.
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New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
First Information Report Number :22/2012
Police Station : South Rohini
Under sections 323/279/336/337/34 of the Indian Penal Code.
State versus Arjun Rana and others -:: Page 29 of 29 ::-
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JUDGMENT
1. At the outset, it may be mentioned that this case is one of the oldest cases pending in this Court and is listed at serial number 08 in the list of twenty oldest cases pending in this Court. A sincere endeavor has been made to dispose the same expeditiously.
2. Initially the case was being tried before the Court of the learned Metropolitan Magistrate as the offences under which the accused persons were prosecuted were Magistrate triable but had subsequently been committed to the Court of Sessions as the offences which appeared to be made out against the accused persons were Sessions triable.
3. Mr.Arjun Rana, Mr.Anshuman and Mr.Harpreet, all the accused persons, have been charge sheeted by Police Station South Rohini, Delhi for the offences under sections 323/279/337 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 31.01.2012 between 06:30 pm and 07:00 pm, near G-29 DDA Market, Sector 3, Rohini, Delhi, the accused persons, in furtherance of their common intention, voluntarily inflicted simple hurt to complainant Mr.Rohit. On the same date, place and time, accused Mr.Harpreet was driving Ford Figo car bearing registration number DL 4CAF 8510 in a rash and negligent manner so as to New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
First Information Report Number :22/2012 Police Station : South Rohini Under sections 323/279/336/337/34 of the Indian Penal Code. State versus Arjun Rana and others -:: Page 29 of 29 ::-
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endanger human life or to be likely to cause hurt or injury to any other person. On the above said date, time and place, while accused Mr.Harpreet was driving the above said vehicle in a rash and negligent manner, he hit against complainant Mr.Rohit and thereby he caused simple hurt to him.
CHARGE SHEET AND COMMITTAL
4. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 25.10.2012.
5. Vide order dated 13.12.2013, the charge for the offences under sections 323/279/337 was framed against all the accused persons namely Mr.Arjun Rana, Mr.Anshuman and Mr.Hapreet by the Court of learned Metropolitan Magistrate to which they pleaded not guilty and claimed trial.
6. During the evidence of PW Mr.Rohit, the complainant, the learned Metropolitan Magistrate opined that the ingredients of offence under section 307 of the IPC are made out, so in pursuance of section 323 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), the case file was committed to the Sessions Court vide order dated 09.05.2014. The case was assigned to the learned predecessor of this Court for 13.05.2014.
New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
First Information Report Number :22/2012 Police Station : South Rohini Under sections 323/279/336/337/34 of the Indian Penal Code. State versus Arjun Rana and others -:: Page 29 of 29 ::-
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CHARGE
7. After the committal of the case to the Court of Sessions, after hearing arguments, vide order dated 20.08.2014 of the learned predecessor of this Court, the charge for offence under section 307 of the IPC in the alternative to charge under sections 279 and 337 of the IPC was framed against accused Mr.Harpreet to which he pleaded not guilty and claimed trial.
8. Vide order dated 06.02.2017, it has been observed that the formal charge was also required to be framed against accused Mr.Arjun Rana and Mr.Anshuman as the same was not framed on 20.08.2014 by the learned predecessor of this Court while framing the charge against accused Mr.Harpreet. The formal charge was framed against accused Mr.Arjun Rana and Mr.Anshuman under sections 323/34 of the IPC vide order dated 08.02.2017 to which they have pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
9. In order to prove its case, the prosecution has examined as many as 07 witnesses i.e. Mr. Rajesh Sharma, the injured, as PW1; Mr.Rohit, the complainant, also as PW1; WHC Kamlesh, Duty Officer, who had recorded the formal FIR and DD entry of the present case, as PW2; Ct.Amar Singh, the witness of arrest of accused Mr.Anshuman, as PW3; SI Manoj, the Investigation Officer of the case, as PW4; ASI Devender (Retd), Technician, New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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who had mechanically inspected the offending vehicle, as PW5; Dr.Meet Kumar, who had deposed on behalf of Dr.Kaustav Kiran, who had medically examined the complainant and the injured, as PW6; and Ms.Kamini Kaur, the mother of accused Mr.Harpreet and the registered owner of the offending vehicle, as PW7.
10.All the accused and their counsel have preferred not to cross examine PWs 2, 3, 5 and 7 due to which their evidence remains uncontroverted and unrebutted and can be presumed to have been admitted as correct by the accused persons.
11.After the framing of formal charge against accused Mr.Arjun Rana and Mr.Anshuman under sections 323/34 of the IPC vide order dated 08.02.2017, the Additional Public Prosecutor made a statement on 08.02.2017 that the prosecution does not wish to examine any prosecution witness. The counsel for all the accused persons, on their behalf, made a statement on 08.02.2017 that the accused do not wish to cross examine any prosecution witness.
STATEMENTS OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C. AND DEFENCE EVIDENCE
12.In their respective statements under section 313 of the Cr.P.C., Mr.Arjun Rana, Mr.Anshuman and Mr.Harpreet, all the accused persons, have controverted and rebutted the entire evidence against them. Both accused Mr.Arjun Rana and Mr.Anshuman have New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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submitted they are innocent and have not committed any offence. They have been falsely implicated in the present case. They did not have any fight with Mr.Rohit, the complainant. Accused Mr.Harpreet has submitted that he is innocent and has not committed any offence. He was not present at the time of alleged fight with Mr. Rohit. He has been falsely implicated in this case.
ARGUMENTS
13.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
14.The Additional Public Prosecutor for the State has requested for convicting the accused persons for having committed the offences under sections 323, 279, 337, 307 and 34 IPC submitting that the prosecution has been able to bring home the charge against all the accused persons by examining its witnesses whose testimonies are corroborative and reliable.
15.The counsel for all the accused persons, on the other hand, has requested for the acquittal of all the accused persons submitting that there is nothing incriminating against them on the record. It is not in dispute that Ms.Kamini Kaur (PW7) is the mother of accused Mr.Harpreet and the registered owner of the offending vehicle, New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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DISCUSSION, ANALYSIS, OBSERVATIONS AND FINDINGS
16.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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be concertized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
17.Under this sphere, I now proceed to test the submissions of both the sides.
CASE OF THE PROSECUTION, ALLEGATIONS, PROVED DOCUMENTS AND FINDINGS
18.The prosecution story unveils on 31.01.2012 when SI Manoj (PW4) received DD No. 50B dated 31.01.2012 (Ex.PW2/C) regarding quarrel. SI Manoj (PW4) along with HC Mangal reached near Shiv Mandir, where Mr. Rohit, the complainant (PW1) met them. SI Manoj (PW4) took the complainant to BSA hospital as he had sustained injuries in the quarrel. SI Manoj (PW4) received telephonic information from WHC Kamlesh (PW2) about the admission of Mr. Rajesh Sharma, the injured (PW2) from his wife Ms. Meena Sharma. IO collectd the MLC of Mr. Rajesh Sharma, who informed that one black colour car hit him and also informed him the registration number of the offending car i.e. DL 4 CAF 8510. IO SI Manoj recorded the statement (Ex.PW1/A) of Mr. New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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Rohit, the complainant and made endorsement (Ex.PW4/A) on the statement. SI Manoj (PW4) handed over the rukka to HC Magal for registration of the FIR.
19.On the basis of rukka, WHC Kamlesh (PW2) registered the FIR No. 22/12 (Ex.PW2/A) and after registration of the FIR, she made endorsement on the rukka (Ex.PW2/B).
20.SI Manoj (PW4) along with Mr. Rohit, the complainant (PW1) went to the spot i.e. G-Block, Sector, Rohini, where the instance took place, and prepared the site plan (Ex.PW4/B) at the instance of the complainant. IO made efforts to search of all the accused persons.
21.On 03.02.2012, on the basis of secret information, IO SI Manoj (PW4) along with Ct. Amar Singh (PW3) went near Gym Wala Park and arrested accused Mr.Anshuman and Mr.Arjuna Rana vide arrest memos (Ex.PW3/A and Ex.PW4/C respectively). Both accused Mr.Arjun Rana and Mr.Anshuman were released on bail. Accused Mr.Harpreet was granted bail by the Hon'ble Court. SI Manoj (PW4) went to the house of accused Mr.Harpreet and found that the car bearing registration number DL 4CAF 8510 i.e. car in question was parked outside his house. IO SI Manoj (PW4) seized the car bearing registration number DL 4CAF 8510 vide seizure memo (Ex.PW4/D). IO served notice under section 133 of the New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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Motor Vehicle Act (Ex.PW4/E) to Ms. Kamini Kaur (PW7), mother of accused Mr.Harpreet and registered owner of the offending vehicle. In reply, Ms. Kamini Kaur (PW7) submitted that her son i.e. accused Mr.Harpreet was driving the said car at the time of incident. IO SI Manoj (PW4) collected the RC of the said car (Ex.PW4/F). Ms. Kamini Kaur (PW7) also produced the photographs of the car (Ex.PW7/A and Ex.PW7/B). IO deposited the car in the Malkhana.
22.SI Ravi (not examined) had called ASI Devender, Technician (PW5) and he had conducted the mechanical inspection of Ford Figo vide report (Ex.PW5/A) and he found that the front body and bumper damaged from the right side and front wind screen was broken.
23.Dr.Meet Kumar (PW6) has deposed on behalf of Dr.Kaustav Kiran, who had medically examined the complainant Mr. Rohit (PW1) and Mr.Rajesh Sharma (PW1) and prepared the MLC of Mr.Rohit (Ex.PW6/A) and MLC of Mr. Rajesh Sharma (Ex.PW6/B).
24.The allegations against all the accused persons are that on 31.01.2012 between 06:30 pm and 07:00 pm, near G-29 DDA Market, Sector 3, Rohini, Delhi, they in furtherance of their common intention, voluntarily inflicted simple hurt to complainant Mr. Rohit. On the same date, place and time, accused Mr.Harpreet New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
First Information Report Number :22/2012 Police Station : South Rohini Under sections 323/279/336/337/34 of the Indian Penal Code. State versus Arjun Rana and others -:: Page 29 of 29 ::-
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was driving Ford Figo car bearing registration number DL 4CAF 8510 in a rash and negligent manner so as to endanger human life or to be likely to cause hurt or injury to any other person. On the above said date, time and place, while accused Mr.Harpreet was driving the above said vehicle in a rash and negligent manner, he hit against complainant Mr. Rohit and thereby he caused simple hurt to him.
25.In the complaint (Ex.PW1/A), it is mentioned that when Mr.Rohit (PW1) was going on his motor cycle bearing registration number and was at G-29, DDA market, Sector-3, Rohini, a white colour Corolla car came infront of his motor cycle. Three boys namely Mr.Arjun Rana, Mr.Anshuman and Mr.Harpreet came out of the car, gave a beating to him and fled in the car. He called the police at 100 number and his father. All the three boys came again in a black colour Ford Figo bearing registration number DL 4CAF 8510 and when he tried to stop the car, they did not stop it. In order to save himself, he jumped on the bonnet of the car and the three boys drove the car in circles with him in the same condition and threw him near the Shiv Shakti temple and escaped from their while driving the car in a rash and negligent manner and causing accident with other cars.
26.Before the Court of the learned Metropolitan Magistrate, Mr.Rohit (PW1) had been examined in chief partly (before the committal of New Sessions Case Number : 51849 of 2016.
Old Sessions Case Number : 44 of 2014.
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the case) and he had ostensibly supported the prosecution case. His examination in chief was not completed and he was not cross examined by the accused persons.
27.There are two persons namely Mr.Rajesh Sharma (PW1) and Mr.Rohit (also PW1) who were injured in the alleged incident and their testimonies are the most important.
28.Mr.Rajesh Sharma (PW1) has deposed that in February, 2012 at about 07:00 pm, he was standing on the road near Shiv Mandir, Sector-3, Rohini when a black colour long car bearing number 8510 with tinted window panes came and hit him on his right leg. It did not stop and left. He did not know who was driving the car or sitting in it. The front wind shied of the car was cracked at that time when it hit him. As he was hostile, the Additional Public Prosecutor for the State has cross examined him wherein he has admitted that the incident occurred on 31.01.2012. He cannot admit or deny the registration number of the car was DL 4C AF as he did not remember. He cannot identify the car as he did not see the model but it was a long car such as Ford Icon. It was a sedan but he cannot recognize it. In his cross examination on behalf of accused Mr.Arjun Rana, adopted by accused Mr.Anshuman and Mr.Harpreet, he has denied that the offending car did not come to the spot and did not hit him. He did not know the complete description of the car, its make and model.
New Sessions Case Number : 51849 of 2016.
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29.Mr. Rohit (also PW1) has deposed before the Sessions Court that he was going on his motorcycle bearing registration number DL4SBQ-3558 and at about 07:00 or 07:30 pm, when he was near Sector-3, G-26 Block, Rohini, there was traffic jam on the road, so he stopped his motorcycle. In the meantime, 3-4 persons came from his backside and started beating him with their hands. Those assailants came in a white colour car. His bike fell down on the road. He also fell down on the road. Thereafter, they fled away by their car. The window glasses of that car were dark. He made call at number 100. After about 10 minutes, another black colour car came and hit him. At that time, he was standing by the side of road and was waiting for the police and his father had also reached there. Due to the impact, he jumped on the bonnet of that black colour car and it took him (while he was on the bonnet of the car) upto 1 or 2 kms. Then, the driver stopped the car. He got down from the bonnet of that car and thereafter, the driver fled away with his car and he also hit one pedestrian and also hit one car. Police officials reached at the spot i.e. near Decent Public School. They took him to Police Station and then took him to BSA Hospital for his medical examination. After his medical examination, he alongwith the police again came to Police Station and then his statement (Ex.PW1/A) was recorded. He could not see the faces of the three persons who came in white colour car and gave beatings to him as the glasses of window of that car were Z-Black. He also New Sessions Case Number : 51849 of 2016.
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could not see the person who was driving black colour car which hit him and then dragged him for about 1-2 kms as the glasses of window of that car were also Z-Black. He also could not see the registration number of offending black colour car. Public persons informed him the registration number of that offending car as 8510.
30.As Mr. Rohit (also PW1) was hostile, he was cross examined on behalf of the State wherein he has deposed that he cannot admit or deny if the date of incident is 31.01.2012. He does not know the persons namely Arjun Rana, Anshuman and Harpreet. He never met these three persons. He signed the statement Ex. PW1/A without going through the same as he had sustained injuries near his eye so he could not read his statement. Police did not read over his statement Ex. PW1/A to him before obtaining his signatures on the same. He did not disclose the names of Arjun Rana, Anshuman and Harpreet to police at the time of recording of his statement. He has admitted to be correct that the assailants got down from the white colour car and then gave beatings to him. He has denied that those persons came from his back and then obstructed his way by placing their car in front of his motorcycle. He could not see the faces of those three persons when they were giving beatings to him as he was sitting on bike and his head was down when they started beating him. He has denied that the assailants were already known to him so he disclosed their names as Arjun Rana, Anshuman and Harpreet to police at the time of recording of his statement. He did New Sessions Case Number : 51849 of 2016.
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not see any of the three accused at the time of incident at the spot. He has failed to identify the three accused persons as the culprits. He has denied that he is deliberately not identifying the three accused in the Court having been won over by them. He has denied that he is deliberately not identifying them in order to not support the case of prosecution or to support the accused. He has denied that the three accused present today in the Court are the same persons who committed the present crime. He has denied that these three accused persons also came to the spot again in black Ford Figo Car or that they committed the subsequent incident also. He told the police that the Ford Figo car was bearing no. 8510 but he did not tell complete number of the car to the police. He has denied that accused Harpreet was driving the offending Ford Figo car at the relevant time. The window panes of the car were Z-Black. Police did not prepare any site plan of the place of incident at his instance. He has denied that he has deposed falsely.
31.It can be seen from the complaint (Ex.PW1/A) and the evidence of Mr.Rohit (PW1) that there are several contradictions and inconsistencies in the two statements of Mr.Rohit.
32.Neither Mr.Rajesh (PW1) nor Mr.Rohit (also PW1) have identified all or any of the accused persons as the culprits not assigned any criminal role to them. They have not identified the offending vehicle and the culprit driving it. Mr.Rohit (PW1) has even denied New Sessions Case Number : 51849 of 2016.
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the contents of his complaint (Ex.PW1/A) elaborating the names of the culprits and their role.
33.In fact, Mr.Rohit (PW1), in his cross examination, has deposed that he did not know the persons namely Arjun Rana, Anshuman and Harpreet. He never met these three persons. He signed the statement Ex. PW1/A without going through the same as he had sustained injuries near his eye so he could not read his statement.
Police did not read over his statement Ex. PW1/A to him before obtaining his signatures on the same. He did not disclose the names of Arjun Rana, Anshuman and Harpreet to police at the time of recording of his statement. Police did not prepare any site plan of the place of incident at my instance. He did not tell the police names of offenders or the numbers of the car and he only told them the colour of the two vehicles. He has also deposed that "It is correct that in Ex. PW1/A it is not mentioned that those 2-3 persons who gave me beatings, came from my backside or started beating me with their bare hands without any rhyme or reason. I did not see face of any of those 3 persons who gave me beatings. I did not state the vehicle number of white colour car to the police. I did not note that number. I did not note the number of black colour car. Someone else from public told me the number of black colour car. I do not know the name of that person who told me the number of black colour car. Vol. The said public person directly told the number of vehicle to SI Manoj in my presence New Sessions Case Number : 51849 of 2016.
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and presence of others. SI Manoj did not record the statement of that person who told the number of black Figo car. Vol. SI Manoj noted down the number on paper by himself. Thereafter, SI Manoj incorporated the number of that vehicle in Ex. PW1/A."
34.Mr.Rajesh Sharma (PW1) and Mr.Rohit (also PW1) have not deposed that the accused persons have caused any injury to them.
It is clear from the evidence of Mr.Rajesh Sharma (PW1) and Mr.Rohit (also PW1) that they have retracted and turned hostile to the prosecution version. They have absolved all the accused persons by failing to identify them as the culprits and have not assigned any criminal role to them.
35.The contradictions in the statements of Mr.Rohit (PW1) and Mr.Rajesh Sharma (PW1) and their evidence as well as the part examination in chief of Mr.Rohit recorded on 09.05.2014 before the Court of the learned Metropolitan Magistrate are regarding the number of cars, the details of the cars including the make and registration numbers, the colour of the cars, the persons in the car, the role of the accused persons, the manner in which the alleged offences were committed, etc. The prosecution has neither been able to explain the contradictions nor justify them. The contradictions and inconsistencies are so major that the same cannot be ignored and they give a fatal blow to the prosecution New Sessions Case Number : 51849 of 2016.
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case.
36.The evidence of Ms.Kamini Kaur (PW7), mother of accused Mr.Harpreet and superdar of the offending vehicle, is also not of any assistance to the prosecution. She has deposed that she is the registered owner of Ford car bearing registration number DL 4CAF 8510 and it used to be driven by her son, accused Mr.Harpreet and it was driven by him on 31.01.2012. Her evidence is of no help to the prosecution considering the hostile nature of the evidence of Mr.Rajesh Sharma (PW1) and Mr.Rohit (also PW1) who have neither assigned any criminal role to the accused persons nor identified them to be the culprits.
37.A feeble attempt has been made by the prosecution by arguing that Mr.Rohit (PW1) had supported the case before the Court of the learned Metropolitan Magistrate in his examination in chief recorded on 09.05.2014. However, it may be mentioned here that it was only his examination in chief partly which was not completed and he was not even cross examined on behalf of the accused persons. Therefore, much importance or reliance cannot be given to his said testimony.
38.Here, it would also be relevant to refer to the cross examination of Mr.Rohit (PW1) on behalf of the accused persons which was New Sessions Case Number : 51849 of 2016.
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recorded before the Court of Sessions. He has deposed that "It is correct that in Ex. PW1/A it is not mentioned that the Ford Figo car was at a very high speed, as deposed by me in my examination in chief dated 09.05.2014. It is correct that in Ex. PW1/A it is not mentioned as to who was driving that car, whereas I claimed in my deposition dtd. 09.05.2014 that it was being driven by Harpreet. It is correct that in Ex. PW1/A it is not mentioned that Harpreet drove his car while trying to ram against me or while trying to mow me down, as claimed by me in my deposition dtd. 09.05.2014. It is correct that in Ex. PW1/A it is not mentioned that the driver of offending Ford Figo car enhanced the speed of the car or tried hard to push me down from the bonnet of the car but fortunately I held wipers of the car for a distance of two kms, as claimed by me in my deposition dtd. 09.05.2014."
39.Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, retracted from their earlier respective statements and were declared hostile by the prosecution. In the light of the aforesaid nature of deposition of Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, who happen to be the most material witnesses, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as they have retracted and resiled from their earlier statements. Reliance can also be placed upon the New Sessions Case Number : 51849 of 2016.
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judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
40.Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
41.In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
42.If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no New Sessions Case Number : 51849 of 2016.
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conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
43.Consequently, no inference can be drawn that all the accused persons are guilty of the charged offence as Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, have made different inconsistent statements due to which their testimonies become unreliable and unworthy of credence.
44.Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution witnesses is found to be improbable, prosecution case becomes liable to be rejected. If evidence of prosecution is read and considered in totality of circumstances along with other evidence on record, in which offence is alleged to have been committed, their deposition does not inspire confidence. Prosecution has not disclosed true genesis of crime. (Reliance can be placed upon the judgment of the hon'ble Supreme Court reported as Narender Kumar v. State (NCT of Delhi), 2012 (5) LRC 137 (SC).
45.Consequently, no inference can be drawn that Mr.Arjun Rana, New Sessions Case Number : 51849 of 2016.
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Mr.Anshuman and Mr.Harpreet, all the accused persons, are guilty of the charged offences that they had beaten Mr.Rohit amd accused Mr.Harpreet had attempted to kill Mr.Rohit as the most material witnesses Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, have made inconsistent statements due to which their testimonies become unreliable and unworthy of credence and strike a fatal blow to the veracity of the prosecution story.
46.Towards the end, it is essential that the investigation conducted in the present case should be mentioned. The police witnesses have deposed about the investigation and the documents have been proved by their authors and signatories to the same.
47.However, it must be mentioned here again that the prosecution story is unreliable and not worthy of credence, as discussed above.
48.It is the actual crime which is important than the investigation.
Where the actual crime is being elaborated and proved in the evidence of the prosecution witnesses, then the investigation becomes less important.
49.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the New Sessions Case Number : 51849 of 2016.
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investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
50.The Investigation Officer has failed to associate some very material witnesses who are the father of Mr.Rohit who had come to spot and accompanied him, Mr.Shray who had also come to the spot and had taken the motorcycle of Mr.Rohit. He has failed to associate the public person who had disclosed the registration number of the offending vehicle. He has failed to associate any independent witness in the investigation at the time of accident, investigation and arrest. He has failed to get clarity regarding the colour of the offending vehicle, whether it was black or white. He has failed to get clarity of the offending vehicle, whether it was a sedan or a smaller car, whether it was Ford Icon, Corolla or Ford Figo. No explanation was the same has come forth from the prosecution and the same makes the prosecution story doubtful.
51.Therefore, the investigation is not being taken into consideration although it is material but not very relevant as the evidence of the prosecution witnesses especially Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, itself is not reliable and believable. New Sessions Case Number : 51849 of 2016.
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52.In the present case, it is clear from the evidence led by the prosecution that the charges for the offence under section 307 of the IPC of attempt to kill against accused Mr.Harpreet in the alternative offence under section 279/337 of the IPC against him; and offence under section 323/34 of the IPC against accused persons namely Mr.Arjun Rana and Mr.Anshuman has not been proved.
FINAL CONCLUSION
53.The prosecution has failed to furnish any explanation in respect of the numerous contradictions and inconsistencies in the statements of its witnesses. The inherent contradictions strike at the very root of the prosecution story making it unbelievable and improbable. In the instant case, the evidence and different statements of the witnesses suffers from such infirmities and the probabilities due to which the prosecution has come out with a story, which is highly improbable. The overwhelming contradictions are too major to be ignored and they strike a fatal blow to the prosecution version. In fact what emerges from the evidence of the most material prosecution witnesses namely Mr.Rohit (PW1) the victim/injured/complainant and Mr.Rajesh Sharma (PW1) the injured, and other prosecution witnesses is that all the accused persons have not committed the alleged offences. Prosecution must lead positive evidence to give rise to inference beyond reasonable New Sessions Case Number : 51849 of 2016.
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doubt that the accused have committed the offences.
54.Since the evidence of the prosecution is neither reliable nor believable as there are overwhelming contradictions in its evidence as well as in totality with the other evidence on record, the conscience of this Court is completely satisfied that the prosecution has not been able to bring home the charge against all the accused persons. The prosecution story does not inspire confidence and is not worthy of credence.
55.In the case of Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; ii. The facts so established should be consistent onlywith the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; iii. The circumstances should be of conclusive nature and tendency; iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the New Sessions Case Number : 51849 of 2016. Old Sessions Case Number : 44 of 2014. First Information Report Number :22/2012 Police Station : South Rohini Under sections 323/279/336/337/34 of the Indian Penal Code. State versus Arjun Rana and others -:: Page 29 of 29 ::-
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accused and must show that in all human probability the act must have been done by the accused.
56.Applying the above principles of law to the facts of present case, it stands established that all the accused persons have not committed any offence. There is no incriminating evidence against all the accused persons. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incident ever took place. Consequently, no inference can be drawn that all the accused persons are guilty of the charged offences as the testimony of the prosecution witnesses is unreliable and unworthy of credence.
57.In the judgment Partap v. The State of Uttar Pardesh, AIR 1976 Supreme Court 966 has reported that the burden is on the accused to establish a plea of self defence and that on the prosecution to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.
58.All the accused persons namely Mr.Arjun Rana, Mr.Anshuman and Mr.Harpreet have submitted that they are innocent but have not led any evidence in their defence. The defence of the accused although New Sessions Case Number : 51849 of 2016.
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is not proved but considering the unreliable evidence of the prosecution which suffers from overwhelming contradictions and glaring inconsistencies, the prosecution version is neither believable nor reliable nor trust worthy.
59.The case of the prosecution has to stand of its own legs and is required to prove all its allegations against all the accused and all the ingredients of the offence alleged to have been committed by the accused. Onus is always on the prosecution to prove and accused is entitled to the benefit of reasonable doubt. Case of the prosecution is to be proved beyond reasonable doubt and cannot take support from weakness of case of defence. In case the evidence is read in totality and story projected by the prosecution is found to be improbable, prosecution case becomes liable to be rejected.
60.If the prosecution evidence is read and considered in totality of circumstances along with other material on record, in which offence is alleged to have been committed, the deposition does not inspire confidence and is unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. Prosecution has not disclosed true genesis of crime.
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61.It is a case of heinous crime of attempting to kill which carries grave implication for the accused, if convicted. Therefore, for convicting any person for the said offence, the degree of proof has to be that of a high standard and not mere possibility of committing the said offence. In a criminal case, the prosecution has to prove its case beyond reasonable doubt against the accused. The prosecution story does not inspire confidence and is not worthy of credence. The gaps in the prosecution evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such incidents ever took place. The prosecution witnesses have given different statements and made numerous contradictions and inconsistencies which remain unexplained.
62.The prosecution has miserably failed to prove that 31.01.2012 between 06:30 pm and 07:00 pm, near G-29 DDA Market, Sector 3, Rohini, Delhi, the accused persons, in furtherance of their common intention, voluntarily inflicted simple hurt to complainant Mr.Rohit. On the same date, place and time, accused Mr.Harpreet was driving Ford Figo car bearing registration number DL 4CAF 8510 in a rash and negligent manner so as to endanger human life or to be likely to cause hurt or injury to any other person. On the above said date, time and place, while accused Mr.Harpreet was driving the above said vehicle in a rash and negligent manner, he hit against complainant Mr.Rohit and thereby he caused simple hurt to him.
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63.All the above facts indicate that there is no veracity in the prosecution case in respect of the offence of attempting to kill Mr.Rohit (PW1) by accused Mr.Harpreet and offence of causing hurt to Mr.Rohit (PW1) by the accused persons namely Mr.Arjun Rana and Mr.Anshuman merit to be acquitted.
64.Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charges against all the accused persons namely Mr.Arjun Rana, Mr.Anshuman and Mr.Harpreet.
65.Accordingly, Mr.Harpreet, the accused, is hereby acquitted of the charges for the offence of attempting to kill Mr.Rohit under section 307 of the IPC and/or in the alternative the charge of rash and negligent driving and causing injury to Mr.Rajesh Sharma and Mr Rohit under sections 279/337 of the IPC. Mr.Arjun Rana and Mr.Anshuman, the accused persons, are hereby acquitted of the charges for the offence of causing hurt to Mr.Rohit under section 323/34 of the IPC.
COMPLAINCE OF SECTION 437-AOF THE CR.P.C. AND OTHER FORMALITIES
66.Compliance of section 437-A Cr.P.C. is made in the order sheet of New Sessions Case Number : 51849 of 2016.
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even date.
67.Case property be confiscated and be destroyed after expiry of period of limitation of appeal.
68.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
69.After completion of the formalities and expiry of the period of limitation, the Ahlmad/Junior Judicial Assistant of this Court is directed to consign the file to the record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 27th day of February, 2017. Special Judge (NDPS) North-West, Additional Sessions Judge, Rohini Courts, Delhi.
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