Delhi District Court
State vs . Gaurav Sharma @ Nippal And Ors. on 13 November, 2018
FIR No.544/13
State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.486/17
CNR No. : DLNW010078922017
State
Vs
1. Gaurav Sharma @ Nippal
S/o. Subhash Chand Sharma
R/O H.No. B34, Surat Vihar
Mubarak Pur Dabas Delhi
2. Sushil Kumar
S/o. Heera Lal
R/O H.No. B50, Surat Vihar
Mubarak Pur Dabas, Delhi
3. Nandu
S/o Sh. Bhim Singh
R/O H.No. A11, Gali no. 1,
Surat Vihar,
Mubarak Pur Dabas, Delhi
FIR No. : 544/13
Police Station : Aman Vihar
Under Section : 307/34 IPC
Date of Institution in Sessions Court : 08.08.2017
Date when judgment reserved : 03.11.2018
Date when judgment pronounced : 13.11.2018
Page No. 1 of 20
FIR No.544/13
State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar
JUDGMENT
1. Present FIR was registered on the complaint of complainant Naresh s/o Late Ganga Ram in which he alleged that he alongwith his wife Devki was residing on rent at B84, Surat Vihar, Mubarak Pur Dabas, near Veer Bazar Road, Delhi and car driver by profession. Around 34 months prior to the incident in question he had a quarrel with Nandu. On 11/11/2013 around 1:15 p.m. he was present in his house along with his wife Deviki @ Anu. At that time someone had knocked the door and when he opened the door he found that Nandu, Sushil and Gaurv @ Nippal were standing outside his house and they all told him that they had come together to avenge the beatings given to Nandu by him. Sushil stabbed him with the knife on his left thigh and right side chest. Hearing the commotion, his wife screamed "bachaobachao". All the accused persons ran away from the spot and Thereafter his wife and his maternal uncle Kishan Lal took him to hospital in the PCR van. His statement was recorded by the police. Investigation was carried out. Accused persons were arrested during investigation. On completion of the investigation, chargesheet was filed in the Court.
Page No. 2 of 20 FIR No.544/13State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar
2. On compliance of Section 207 Cr.P.C, the charge sheet was committed to the Court of Sessions by the Court of Ld. MM.
3. Charge under Sections 307/34 IPC was framed against all the accused persons vide order dated 13/09/2017, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined in total 11 witnesses.
PUBLIC WITNESSES
5. Complainant Naresh, Smt. Devki, wife of complainant have been examined as PW2 and PW7 respectively. Their testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
6. PW1 HC Sanjeev is the Duty Officer, who proved the copy of FIR, endorsement on rukka and certificate u/s 65B of Indian Evidence Act, DD no. 86B as Ex.PW1/A, Page No. 3 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar ExPW1/B and ExPW1/C respectively.
7. PW3 Ct.Rajpal has deposed that on 11/8/2014 on the instructions of the IO SI Sandeep Yadav the accused Sushil was taken to SGM Hospital, where the doctor concerned took the blood sample of the accused in a vial in his presence and handed over to him along with sample seal. After coming to the PS, heI handed over the blood sample and sample seal to the IO which the IO seized vide seizure memo Ex. PW3/A.
8. PW4 Ct. Sandeep is the Photographer, Mobile Crime Team who visited the spot along with ASI Ajit Singh, Incharge and took 7 photographs. He relied upon 7 photographs and negatives and proved the same as Ex.PW7/A colly and ExPW4/B colly respectively.
9. PW5 Ct. Anoop Singh has deposed in sync with PW8 SI Sandeep with whom he remained in the investigation.
10. PW8 SI Sandeep Yadav has deposed that on 11.11.2013, on the receipt of DD No. 17 A, he alongwith Ct. Anoop went to the spot i.e. B87, Surat Vihar, Delhi where they came to know that Naresh had been stabbed by three Page No. 4 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar boys and had been taken to SGM Hospital. Outside the house at the spot blood was lying splattered and the knife was also lying. He left Ct. Anoop at the spot for safeguarding purpose and proceeded to SGM Hospital. At the hospital, he met the injured Naresh and after certified by the doctor concerned to be fit for statement he recorded his statement Ex. PW2/A. At the hospital, he also met wife and maternal uncle of the injured. The doctor concerned handed over to him the pullindas which he took into possession vide seizure memo Ex. PW8/A. Thereafter, he reached at the spot and by that time, beat constable Shri Krishan had already arrived at the spot and he conducted further proceedings in his presence. He called the crime team and made the endorsement on the statement of injured Naresh vide Ex. PW8/B and get the FIR registered through Ct. Anoop. Thereafter, crime team reached at the spot and took photographs of the spot. Site plan ExPW8/C was prepared at the instance of Annu. Thereafter, he collected the "blood earth" and the earth control vide separate seizure memos Ex. PW8/D and Ex. PW8/E and took the knife and prepared its sketch Ex.PW8/F and seized the same vide seizure memo Ex. PW8/G. On the receipt of the secret information that accused Nippal @ Gourav involved in the present case was present in nearby DDA park he alongwith Ct. Shri Krishan and Annu reached at DDA Park, Surat Vihar, Delhi, where on the pointing out of Annu, they apprehended Page No. 5 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar accused Nippal @ Gourav and arrested him vide arrest memo Ex. PW8/H, his personal search was carried out vide memo Ex.PW8/I. Accused Nippal @ Gourav led them to the place of incident and at his instance he prepared the pointing out memo of the place of incident Ex. PW8/K. On 13.11.2013, accused Sushil surrendered in the PS and he was arrested vide arrest memo Ex. PW8/L. His personal search was also carried out vide Ex.PW8/M and accused Sushil, led them to place of occurrence, and on his pointing out, he prepared the pointing out memo Ex. PW8/O.
11. PW9 SI Jitender has deposed that the investigation of the case remained with him from 1/7/2016 to 31/8/2016 and so long as it remained with him he had not done anything substantial in it.
12. PW10 ASI Baljeet Singh had prepared the chargesheet and filed in the court through SHO.
MEDICAL EVIDENCE
13. PW6 Dr. Bina, CMO SGM Hospital, Delhi had medically examined the patient Naresh S/o Late Sh. Ganga Ram vide MLC Ex. PW6/A. She has deposed that after examination patient was referred for surgery and ortho Page No. 6 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar opinion and after their opinion he opined the injury as grievous in nature. She has identified the signatures of doctor Ortho Dr. Mohnish and doctor surgery Dr. Ashish and Dr. Madhur as well.
14. PW11 Dr. Manoj Dhingra, HOD, SGM Hospital, Delhi had examined one knife and gave his opinion that injuries mentioned in the MLC could be possible by the said weapon of offence i.e. knife. He proved his opinion is from point X to X on Ex. PW8/Q. The opinion given by Dr. Vivek Rawat under his supervision and after examining the contents of MLC, that the injuries were not likely to be self inflicted injury. The opinion is Ex. PW11/A. STATEMENT OF ACCUSED
15. After completing the prosecution evidence, statement of both the accused persons was recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence was put to them, which have been denied by them in toto. The accused persons stated that they are innocent and have been falsely implicated in this case and they were not present at the spot when the incident took place.
Page No. 7 of 20 FIR No.544/13State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar ARGUMENTS OF BOTH SIDES
16. I have heard Sh. Rajat Kalra, Ld. Addl. PP for the State and Sh. B.D.Sharma, Ld. Counsel for accused Guarav Sharma, Sh. Manoj Kumar Mahavir, ld. Counsel for accused Sushil Kumar and Sh. Shazeb, Ld. Counsel for accused Nandu and have perused the material available on record.
17. It is argued by Ld. Counsels for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is submitted that both the public witnesses i.e. PW2 Sh Naresh and his wife PW7 Smt. Devki @ Annu have not supported the case of prosecution and they are completely unreliable and there are lot of contradictions in their statements which make the case of the prosecution highly doubtful.
18. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to establish its case beyond any shadow of doubt. It is stated that PW2 Sh Naresh i.e. the complainant had fully supported the case of prosecution in his examination in chief but in his cross examination by the defence, he retracted from his initial Page No. 8 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar statement as some settlement must have taken place between the parties and the accused cannot be allowed to have benefit of the same. It is further stated that his wife Devki @ Annu i.e. PW7 came at the spot only after hearing the screams of her husband and she had no occasion to see the accused persons as they had left by that time and hence the defence cannot take much advantage of the testimony of PW7. It is further stated that having regard to the testimony of the complainant in his examination in chief, whose testimony is truthful and reliable and coupled with the other evidence on record in the form of investigation conducted by the police, the prosecution has been able to prove its case.
FINDINGS OF THE COURT
19. After going through the entire material on record and the evidence led by the prosecution, at the outset, it may be said that the prosecution has failed to prove its case beyond reasonable doubt.
Ocular Evidence:
20. Ocular evidence/ eye witness count is the best Page No. 9 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
21. In the present case the entire case of the prosecution is based upon the eye witness account given by the complainant/victim Naresh (PW2) who has proved the incident which had taken place at the spot. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witness, hence it is necessary for this Court to first determine whether he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 Page No. 10 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
22. Complainant/Victim Naresh (PW2) has deposed in court that he was a driver by profession and around 56 months Page No. 11 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar earlier, he had a quarrel with accused Nandu on the issue of theft of cycle of his nephew but that controversy had subsided amicably with the intervention of his brother as well as brother of Nandu. He has further deposed that on 11/11/2013 at about 11:0012:00 noon while he was present in his house Nandu knocked the door of his house and he pulled him out and accused Nippal who was standing by his side, twisted his hand and the third accused namely Sushil stabbed him with the knife above the ribs and when he tried to save himself accused Nippal @ Gaurav struck the knife on his thigh near the testicles as a result of which he fell down on the road bleeding profusely and hearing the commotion and his screams, his wife came from terrace and she helped the PCR in taking him to the hospital where his statement was recorded which is ExPW2/A.
23. He was cross examined by Ld. Counsels for the defence in which he has taken total somersault. In the cross examination he answered that in his statement to the police, he did not tell the name of the assailants as he did not know who had committed the said offence with him as he had become unconscious. He further stated that rather he had given the name of 7 of his friends namely, Nandu, Page No. 12 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar Sushil, Nippal, Nitin, Jabbar, Guddu and Rajbir. He further answered that the accused present in the court namely Gaurav @ Nippal, Sushil and Nandu did not commit any offence with him on that fateful day and that in the hospital, he was given a paper slip by the police disclosing the name of all the accused persons as the assailants and since then, he bore a feeling of revenge against them and hence he deposed in that manner.
24. His wife Smt. Devki @ Annu has been examined as PW7 and she has also not supported the case of prosecution at all. She has deposed that on the fateful day her husband Naresh was given knife injury by someone and at that time she was in house upstairs and she came down after hearing the screams of her husband and thereafter he was taken to SGM Hospital where he was treated. Since she was not supporting the case of prosecution she was cross examined in length by Ld. Addl. PP for the State in which she denied the suggestion of the state that on the fateful day Nandu, Sushil and Gaurav knocked their door which was opened by her husband and thereafter he was attacked by the said accused persons. She furthr denied the suggestions that she had seen Sushil carrying kife with him and they all were saying that they had come together to avenge the beatings Page No. 13 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar given to Nandu earlier by her husband Naresh or that she had seen them beating her husband or that she had seen Sushil giving knife blows to her husband or that these accused persons had run away from the spot after assaulting her husband.
25. In view of the above, in my view the testimony of PW2 and PW7 is not creditworthy and same is full of doubts. The convenience with which complainant sh. Naresh has changed his version in court from the initial statement ExPW2/A, does not make him a dependable witness and his testimony is not reliable.
26. It is argued by the Ld. Addl. PP for the State that since injured Naresh had supported the case of the prosecution in his examination in chief and he has resiled only in his cross examination, in view of the authoritative judgment of Hon'ble Supreme Court titled as Khujji Vs. State of MP AIR 1991 SC 1853, the court can disregard the cross examination and hold the accused persons guilty believing the testimony of the witness deposed in his examination in chief. He has further relied upon Ugar Ahir Vs. State of Bihar AIR 1965 SC 277, State of Saravanan AIR 2009 SC 152 and State of UP vs. Krishna Master AIR Page No. 14 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar 2010 SC 3071 where it has been held that it is the duty of the court to separate falsehood from the truth in sifting the evidence and the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice and therefore, it is the duty of the court to scrutinize the evidence carefully in terms of the felicitous metaphor and separate the grain from the chaff.
27. This court fully agrees with the contention of Ld. Addl. PP for the State and the ratio laid down in the judgments relied upon by him. But it is relevant here to state that in the present case,there are several other contradictions which are narrated below, in the statement of complainant PW2 Sh. Naresh and in view of the same, it would not be safe to rely only on his examination in chief to convict the accused persons.
28. There are several contradictions in the statement of complainant/injured Naresh and the same are as under:
(i) there is doubt about the reason of animosity between the complainant and the accused persons. In his initial statement ExPW2/A he had stated that around 34 months back he had quarrel with his neighbour Nandu while playing gilly danda in which he had given beatings to the Page No. 15 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar said Nandu and hence Nandu had grudge against him but in his testimony before the court as PW2 he has deposed that around 56 months prior to the incident he had a quarrel with Nandu on the issue of theft of the motor cycle of his nephew. Hence, there is contradiction in his statement about the reason for the tiff between him and Nandu.
(ii) In his testimony before the court he deposed that when he was pulled out by Nandu from his house, accused Nippal who was standing by his side held his left hand and twisted it but he is completely silent about the same in his initial statement ExPW2/A.
(iii) In his initial statement ExPW2/A he had attributed the role of hitting him with knife upon accused Sushil only but in his testimony before the court he attributed the role of assaulting with knife not only upon Sushil but also upon Nippal @ Gaurav who allegedly struck the knife on his thigh.
29. There are certain other aspects in the testimony of PW2 Sh. Naresh which make him unreliable and the same are as under
(i) In his examination before the court, he failed to identify the knife with which he was allegedly assaulted by Page No. 16 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar the accused persons.
(ii) It is understandable that looking at the nature of the offence, he may not be able to remember the identity of the knife but it is relevant here to state that he also failed to identify his clothes. Ld. Addl.PP for the State showed him the clothes seized by the police which he was wearing at the time of the incident but he was not able to identify the said clothes.
(iii) In his deposition before the court PW2 was asked about the size of the knife with which he was assaulted and he had shown his right palm to tell the size of the knife and the court observed that as per the witness the knife was about 9 to 12 inches but the sketch of the knife ExPW8/F shows that the knife used in the commission of the offence was much bigger and it was measuring 40.3 cm. i.e. 16 inches.
30. It has been held in Mritunjay Biswas vs. Pranab @ Kuti Biswas and Anr. (2013) 12 SCC 796 :
" It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of lieu of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is Page No. 17 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantages of such inconsistencies."
31. In my view, there are various material improvements and inconsistencies in the statement of complainant/victim Naresh which go to the root of the matter and in view of the said contradictions, inconsistencies in his statement, his testimony is not reliable and the same is full of doubts. As stated above, even his wife PW7 Smt. Devki has also not supported the case of prosecution and her testimony is also of no help to the prosecution.
32. The testimony of the remaining witnesses, apart from both the public witnesses as discussed above, only relates to the medical examination of the injured and the investigation conducted by the police officials and the testimony of the said witnesses is of no help to the prosecution, in view of the above, in proving its case.
33. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between Page No. 18 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State. Of Uttrakhand AIR 2011 Supreme Court 200.
34. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
35. In view of the above discussion, in my view, Page No. 19 of 20 FIR No.544/13 State Vs. Gaurav Sharma @ Nippal and ors.
Police Station : Aman Vihar prosecution has not been able to prove its case beyond reasonable doubt and hence the accused persons are acquitted of the charges framed against them.
36. The accused are on bail, their bail bonds are cancelled and sureties discharged.
37. All the accused persons are directed to furnish personal bond in the sum of Rs.10,000/ with one surety each of the like amount u/s 437A CrPC. Requisite bonds are furnished and accepted.
38. The case property, if any, is confiscated to the State and same be destroyed after the period of appeal, and if appeal is filed, subject to the order of the Ld. Appellate Court.
Digitally
signed by
DEEPAK
DEEPAK GARG
Announced in the open court GARG Date:
2018.11.13
th 16:07:27
on this 13 day of November, 2018. +0530
(DEEPAK GARG)
ASJII, NORTHWEST
ROHINI: DELHI
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