Delhi District Court
State vs 1. Sonu S/O Sh. Raj Kumar on 20 September, 2022
IN THE COURT OF ARUN SUKHIJA: ASJ-03 (EAST):
KARKARDOOMA COURTS: DELHI.
S.C. No: 139/2020
State Versus 1. Sonu S/o Sh. Raj Kumar
R/o 2/125, Trilokpuri, Delhi.
2. Govinda S/o Sh. Prabhu Dayal
R/o 2/146, Trilokpuri, Delhi.
3. Manish S/o Sh. Ishwar Singh
R/o Indra Camp, Trilokpuri, Delhi.
(discharged vide order dated 08.01.2016
passed by ld. ACMM)
FIR No. 510/2013
P.S. New Ashok Nagar
U/s. 392/394/34 IPC
Chargesheet Filed On : 15.05.2015
Chargesheet Allocated On : 05.03.2020
Case transferred to this
Court On : 12.03.2020
Court Presided over On : 22.07.2021
Judgment Reserved On : 26.08.2022
Judgment Announced On : 20.09.2022
::- J U D G M E N T -::
1.Filtered allegations, briefly, as per report under Sec. 173 CrPC, are that police set in motion on receipt of DD No. 68-B, dated 12.10.2013 and reached LBS Hospital, where one Jaipal Singh was found admitted in Operation Theater. No eye witness was found at that place and then, on putting endorsement, case was got registered under Sec. 307 IPC. Exhibits were lifted and seized. On 16.10.2013, injured Jaipal had SC No. 139/2020 State Vs. Sonu etc. Page - 1 of 11 gone to PS to know progress about the matter pertains to him and then, he got lodged his statement under Sec. 161 CrPC.
2. During investigations of this case, on 19.10.2013, on the tip off, accused persons Manish, Sonu, Vicky and Govinda were apprehended and all of them confessed their guilt. Except Manish, all these apprehended persons, claimed their juvenility. Accused Manish was arrested and he even pointed-out the place of incident. Formal proceedings were conducted against him while formalities were also conducted qua remaining apprehended persons and on conclusion of the investigations, charge-sheet was filed against the accused persons before the Court of ld. Metropolitan Magistrate for the offences punishable under Sections 394/392/34 IPC.
3. It is pertinent to mention here that in view of the offences alleged against the accused persons, vide order dated 08.01.2016 passed by ld. ACMM, accused Manish was discharged while it was ordered that charges under Sections 392/394/326/34 IPC are made out against accused persons Sonu and Govinda and pursuance to the same, on 12.02.2016. Thereafter, vide order dated 28.11.2019, a Charge under Sec. 174-A IPC was also made out against accused Sonu @ Monu. To the said charges, both these accused persons pleaded not guilty and claimed trial. Thereafter, while at the stage of prosecution evidence, during the evidence of injured/complainant, ld. court of Metropolitan Magistrate committed the case to the Court of Sessions.
4. Thereafter, on being committal to the present case before the Court of Sessions, vide order dated 13.03.2020 passed by the ld. predecessor, SC No. 139/2020 State Vs. Sonu etc. Page - 2 of 11 Charges under Secs. 392/394/34 IPC read with Sec. 397 IPC and 326/34 IPC were framed against accused persons Sonu and Govinda and vide same order, separate charge under Sec. 174-A IPC is also framed against accused Sonu. To the said charges, both accused persons pleaded not guilty and claimed to be tried.
5. With the help of seven witnesses, prosecution has tried to prove the guilt of these above mentioned accused persons. Those seven witnesses as under:-
(i) PW-1 Const. Omjeet Yadav deposed that on 12.10.2013, after examination of one injured, one sealed pullanda with sample seal was handed-over to him and in turn, he handed-over the same to the IO in intact condition, which was seized and proved the memo Ex.PW1/A;
(ii) PW-2 Jaipal Singh is complainant/victim. He proved his statements as Ex.PW2/A & Ex.PW2/B;
(iii) PW-3 Dharmender, stated to be son of the complainant, rushed the injured to hospital, on being informed about the incident;
(iv) PW-4 HC Sandeep and ASI Pravendra Kumar joined the investigations of this case on 19.10.2013 with ASI Yatinder and are witnesses to the arrest of culprits and proved memos Ex.PW4/A to Ex.PW4/F prepared in their presence;
(v) PW-5 Head Const. Virender, accompanied with ASI Yatinder and is a witness to the memo Ex.PW1/A (Ex.PW1/A1) and also got the case registered on ruqqa being handed-over to him and this witness also proved the memo Ex.PW5/A and SC No. 139/2020 State Vs. Sonu etc. Page - 3 of 11
(vi) PW-7 ASI Yatinder is the Investigating Officer, who conducted the investigations of this case and proved endorsement Ex.PW7/A; site plan Ex.PW7/B and other documents Ex.PW7/C to Ex.PW7/F prepared in the present matter.
6. During the prosecution evidence, both these accused persons, vide their statement recorded under Sec. 294 CrPC on 01.12.2021, do not dispute the contents of FIR; DD no. 68-B; MLC; TIP and proceedings qua accused Govinda as Ex.C-1 to Ex.C-5 respectively. Detailed testimonies of witnesses will be discussed at appropriate stage.
7. Statements of accused persons were recorded under Sec. 313 CrPC and the incriminating evidence was put to them during the said statement. Both these accused persons pleaded their innocence.
8. Accused Sonu further pleaded that he was implicated in this case after being lifted from his house, for the reasons best known to the police. Accused Govinda also toed the same line.
9. Neither of these accused persons opted to lead Defence Evidence.
10. I have heard learned Addl. PP for the State and ld. defence counsel as well and also scrutinized the record in view of the law laid down.
11. Learned Addl. PP for the State argued that prosecution has been able to prove the charge through evidence of all material witnesses coupled with other material on record. He also drew the attention of the Court towards the fact that earlier, case was being tried by ld. MM and only on deposition of PW-Jaipal Singh-the complainant/injured, matter was committed to the Court of Sessions and during examination before the Court of ld. MM concerned, said witness clearly identified both these SC No. 139/2020 State Vs. Sonu etc. Page - 4 of 11 accused persons further stating that there may be various reasons for for not identifying the culprits. However, ld. Addl. PP for the State also stated that said witness, during his examination before this Court, in clear terms, stated that on account of his age being septuagenarian and also on account of lapse of time, he is unable to identify the culprits. Apart from that, there is no dispute to the fact that on the date and time of incident, injured sustained injuries and even there is no remotest suggestion that injuries are self-inflicted injuries. One of the contentions of ld. Addl. PP for the State is that mere simple denial of the allegations for their false implication is of no value in the eyes of law and all this creates a doubt on the story of accused persons and puts a stamp on the prosecution case. Ld. Addl. PP, thus, prayed for conviction to both these accused persons.
12. Learned defence counsel contended that first of all, the injured/victim of the case failed to identify either of these accused persons in clear terms during his statement recorded before this Court and same is a major blow on the prosecution case. It is further contended by learned defence counsel that admittedly, remaining witnesses are either of formal nature or joined the investigation and as such, are of no help to the prosecution case. It is also contended by ld. defence counsel that mere confession by the accused persons is of no value in support of any independent evidence. Ld. defence counsel drew the attention of the Court towards statement of PW-6 ASI Pravendra Kumar wherein, during examination-in-chief conducted on 19.07.2022, earlier, this witness did not furnish the names of accused persons correctly and SC No. 139/2020 State Vs. Sonu etc. Page - 5 of 11 argued that all this shows that prosecution case is built on sand and benefit of the doubt must be given to the accused persons. Ld. defence counsel prayed for acquittal of the accused persons, further stating that if two views are possible, benefit of the doubt must be given to the accused persons.
13. This Court has considered the rival submissions and scrutinized the record with judgments on the point in issue in the case.
14. Admittedly, the star and key witness of this case is only PW-2 Jaipal Singh. This witness earlier appeared before the Court of ld. MM as PW-2 on 24.12.2019 and 28.02.2020. Pursuance to statement made by this witness on 28.02.2020, this case was committed to the Court of Sessions. Before the Court of Sessions, PW Jaipal Singh appeared and on 22.11.2021, he deposed about the incident. To facilitate the matter, his testimony is reproduced as under:-
"xxxxxxx On 05.10.2013, at about 6 p.m. while I was on way to my home from Ghazipur Dairy Farm and was present near Vasundhara Enclave Pul, near Ambedkar Stadium. I was having bicycle at that time and at that place, when I had gone to answer the call of nature, someone came from my back and pushed me. I fell down around 10 feet down towards Naalah (drain) on account of that push and became unconscious. After sometime, I regained consciousness and noticed that four persons had surrounded me and they were taking me towards Naalah by dragging. I tried to rescue myself and in that process, those persons put some chloroform like to me and even they attacked me on various parts of my body with knives.
I was put in a pit filled with sand by those persons, however, I came out from that pit by ramp there. Those persons robbed me for a cash amount of Rs.6,000/- and SC No. 139/2020 State Vs. Sonu etc. Page - 6 of 11 my mobile phone was also found missing in that process. Later on, I came to main road. Dharmender, my son and his friends also came there as Dharmender has to also come to home from dairy farm. They enquired the matter from me and I narrated the incident to them. I was rushed to LBS Hospital by them where I was medically treated. From there, as per medical advice, I should take treatment from another hospital, I went to Trauma Centre of AIIMS from where I was retired myself. Police met me there. I narrated all the facts to the police personnel. Police showed 20-25 photos from their mobile and I failed to recognize anyone of them as responsible for the crime committed with me. Next day, police again came and showed other photos of some persons and out of those photographs, I recognized four of them as responsible for the crime committed with me.
Witness identified a person wearing black and red jacket stating that one of them is assailant at that time and on being asked, said accused stated that his name is Govinda. Witness stated that no other person is now present responsible for that crime.xxxxxxxx"
15. From the above statement, it is clear that at the first instance, the PW-2 has not narrated the correct date of incident and even after declaring hostile, during the cross-examination, this witness has stated that the incident may have occurred on 12.10.2013 and only after the MLC was shown to him, then, he has stated that the incident had occurred on 12.10.2013. Further, he has failed to identify all the culprits responsible for the crime in question. Even after cross-examination and confronting with the earlier statement made before the Ld. MM, the injured PW2 has remained on his stand that Sonu was not the assailant of the crime. If, testimony of PW2 is looked as a whole, then, SC No. 139/2020 State Vs. Sonu etc. Page - 7 of 11 he appears to be oscillating witness and his testimony is niddle-noddle. As per his deposition, he was pushed from back and fell down towards Nallah (drain), which was about 10 feet deep and he became unconscious. Thus, at the first instance, he has not seen any of the accused persons. Further, as per his deposition, after sometime, he has regained consciousness and at that time, he was surrounded by four persons and the said persons starting taking him towards Naalah by dragging and when he tried to save himself, those persons put some chloroform. The perusal of statement under Section 161 Cr.PC of this witness reveals that at that time it was dark. PW2 in his deposition has stated that firstly, police showed 20-25 photos from their mobile phone but he failed to recognize anyone of them as responsible for the crime and next day, police again came and showed other photos/photographs of some persons and out of those photographs, he recognized four of them as responsible for the crime committed upon him. However, in the entire prosecution case, there is no mention how the prosecution came to know that the accused persons were assailants and even statement of PW-2 under Section 161 Cr.P.C. is silent about the same. It is observed in catena of judgments of various Courts that it is only after considering the entire statement of a witness, the Court has to come to a conclusion that whether the testimony of the witness was credit worthy or not. The Court has to silt grain from the chaff. In all such cases, the Court has to see whether the overall testimony of the same was truthful and whether the incident, as claimed by the prosecution, had happened or not.
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16. Besides the above, it is clear that the standards of proof in criminal case have to be beyond reasonable doubt. This expression is of higher standard stating degree of proof. This could depend upon the facts of a given case. Doubts would be called reasonable, if they are free from zest to abstract speculation. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence. (Ref.: Geeta Keshav Shankar Vs. The State of Maharashtra, 2009 (111) BomLR 1163 para 62).
17. Now, considering other facts i.e. arrest of accused, it is to be seen that prosecution took help of three witnesses to prove their arrest and other proceedings qua that aspect and these witnesses are PW-4 HC Sandeep & PW-6 ASI Pravendra Kumar with PW-7 ASI Yatinder. It is very surprising that even during examination-in-chief PW-6 mentioned the names of accused persons wrongly. Another rusted factor is that even PW-7 ASI Yatinder again mentioned the wrong names of accused persons and without explanation of the same, though, he identified the accused persons with their correct names. PW-6, during his cross examination, has stated that they left for patrolling duty and they were on foot at that time. He further stated during the cross-examination that they came back to police station on foot with accused Manish only as remaining assailants were juvenile. On the other hand, PW-7, during his cross-examination, has stated that total three bikes were there on that date with the police party and he was on his bike alone, while, other police staff was on other two bikes. He further stated in SC No. 139/2020 State Vs. Sonu etc. Page - 9 of 11 the cross-examination that all four culprits were taken to the police station by hiring an auto. Thus, there is serious and glaring contradiction between PW-6 and PW-7 about the arrest of the accused persons. It is not mandatory that at the time of any proceedings, public witnesses must be joined but in the facts and circumstances of this case, it seems doubtful when public witnesses have not been joined at the time of the arrest of accused persons. The explanation of the accused persons that they were lifted from their houses does not seem to be improbable after looking into the cross-examination of PW6 and PW7. Another major blow in the present matter is that admittedly, on Ex.PW-1/A i.e. Seizure Memo of articles, only name of Const. Omjeet Yadav is mentioned and same did not bear his signatures. Though, not important but it is also to be kept in mind that one of the culprits namely Manish, who was apprehended first, has been discharged in the present matter vide order dated 08.01.2016 passed by ld. MM and the same has attained finality as the same was not challenged at any point of time.
18. All this clearly indicate that prosecution case is shrouded with doubts and benefit of the same must be given to the accused persons. In view of the overall discussion and material placed on record, this Court is of the view that prosecution has failed to prove its case beyond all reasonable doubts and as such, accused persons are entitled for their acquittal. Accordingly, accused persons namely Sonu and Govinda are hereby acquitted for the offence/offences punishable under Secs. 392/394/34 IPC r/w Section 397 IPC and also Sec. 326/34 SC No. 139/2020 State Vs. Sonu etc. Page - 10 of 11 IPC.
19. Apart from the above, it is also clear that accused Sonu has also been charged with the offence punishable under Sec. 174A IPC. No witness has been produced by the prosecution to prove any ingredient of the said offence. The perusal of record reveals that Ld. MM has declared him Proclaimed Offender without examining the Process Server. No opportunity was given to the accused person to contradict his version by cross-examining as he was not even called to prove the report.
20. In view of this discussion, this Court is of the view that prosecution has also failed to prove its case beyond all reasonable doubts, the offence punishable under Sec.174A IPC against the accused Sonu, for which, he has been charged with and as such, accused Sonu is entitled for his acquittal under Sec. 174A IPC.
21. Sum up of the above discussion is as - (i) both accused persons namely Sonu and Govinda are acquitted for the offences under Secs. 392/394/34 IPC r/w Sec. 397 IPC and Sec. 326/34 IPC and (ii) accused Sonu is also acquitted for the offence punishable under Sec. 174A IPC.
22. Case property, if any be confiscated to State, after the expiry of period of appeal/revision, if any.
File be consigned to Record Room.
Announced in open court on this 20 th day of September, 2022.
(ARUN SUKHIJA) Addl. Sessions Judge-03 (East):
KKD Courts: Delhi.
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