Delhi District Court
State vs . on 6 July, 2011
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 88/10
Unique Case ID No. 02402R0169122010
State Vs.
1. Lokesh S/o Sh. Mahender, R/o H1/203, New Seelampur, Delhi.
2. Dinesh S/o Late Sh. Ram Saran, R/o CPJ H.No. 237, New Seelampur,
Delhi.
FIR No. 56/2009
PS Seelampur
U/s 308/34 IPC.
Date of Institution : 29.09.2010
Date of reserving the Order : 30.05.2011
Date of Pronouncement : 06.07.2011
J U D G E M E N T : Prosecution case emanates from the fact that on 12.02.2009 Harish and his brother Rajender Yadav were attending a marriage function at Community Centre, CPA Block. At about 11pm after taking their meals, they came out of the Pandal. At that moment, some boys wielded hockey stick and club blows on the head, ear, hand and legs of Harish. Lokesh and Dinesh were among those boys, who wielded blows on him. During the course of scuffle, he found that his purse containing a sum of Rs.1,500/ were missing. His brother S.C. No. 88/10 Page 1/19 2 Rajender Yadav intervened in the fight. He was removed to GTB Hospital. His statement was recorded by the police, which became bedrock of the case. During the course of investigation, accused persons were arrested. Investigation culminated into a charge sheet against accused Lokesh and Dinesh.
2. Charge for offence punishable under section 308 read with section 34 IPC was framed against the accused persons, to which charge they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Harish (PW1), Rajender Singh Yadav (PW2), SI Satyadev Singh (PW3), HC Umesh Kumar (PW4), SI Shailender (PW5), Dr. P.K. Shah (PW6), Dr. Divesh Gulati (PW7), SI Harbhajan Singh (PW8) and Dr. Neeru Chugh (PW9) in the case.
4. Harish (PW1) is the complainant.
Rajender Singh Yadav (PW2) is the brother of complainant. SI Satyadev Singh (PW3) recorded FIR and proved copy of it as Ex.PW3/A. HC Umesh Kumar (PW4) joined investigation of the case on intervening night of 12/13022009. He took rukka to PS and got recorded the FIR. He detailed those investigative steps, which took place in his presence.
SI Shailender (PW5) was handed over investigation of the case on S.C. No. 88/10 Page 2/19 3 04.01.2010. He obtained final opinion regarding nature of injuries on the MLC of injured Harish. He searched for other accused persons, but they could not be traced. Later on, he prepared the challan and filed the same before the Court.
Dr. P.K. Shah (PW6) proved MLC of injured Harish as Ex.PW6/A, which was prepared by Dr. Khushwant Singh under his supervision.
Dr. Divesh Gulati (PW7) gave opinion regarding injuries sustained by injured Harish. He proved his endorsement in this regard as Ex.PW7/A and Ex.PW7/B. SI Harbhajan Singh (PW8) conducted investigation of the case. On receipt of DD No.33A Ex.PW8/A, he along with HC Umesh Kumar went to the spot i.e. CPA block, Community Centre, New Seelampur. On reaching there, they came to know that injured had been removed to GTB Hospital. He along with HC Umesh went to GTB Hospital and obtained MLC of injured Harish. He recorded statement of Harish Ex.PW1/A. He made endorsement Ex.PW8/B on the statement of complainant and prepared rukka for getting the case registered. He along with Rajender Yadav, brother of injured, went to the spot. He prepared site plan Ex.PW8/C at the instance of Rajender Yadav. HC Umesh got the case registered.
In the evening of 13.02.2009, he again went to house of Rajender Yadav with HC Umesh. At the instance of Rajender, accused Lokesh was S.C. No. 88/10 Page 3/19 4 arrested. His personal search memo was prepared, besides the disclosure statement. At about 6.55pm, accused Dinesh was also arrested in the case. His arrest memo, personal search memo and disclosure statement were recorded. At the instance of accused Dinesh, weapon, that is, hockey was recovered from behind the community centre. The case property was deposited in Malkhana. He recorded statement of witnesses. He completed the investigation and submitted challan in the case. He detailed those very investigative steps, which were taken by him during the course of investigation.
Dr. Neeru Chugh (PW9) opined nature of injures sustained by Harish after examining ENT clinical treatment, as simple in nature and proved the same as Ex.PW9/A.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simpliciter. They claimed themselves to be innocent. However, accused Dinesh Kumar projected that injured had sustained injuries due to fall from scooter under influence of liquor. They have examined Riazuddin (DW1) and Mukesh (DW2) in support of their defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Prosecutor for the State S.C. No. 88/10 Page 4/19 5 and Sh. S.K. Ahluwalia, Advocate, for the accused persons and have perused the record.
7. It was submitted by ld. counsel for the accused that testimony of injured and his brother are not reliable, inasmuch as, both these witnesses have deposed that they have given the name of the accused to the doctor, but the name of the accused does not find mention in MLC. Further more, according to both witnesses, clothes were smeared with blood, but no clothes of injured or his brother were taken into possession by the police. Further more, according to PW1 Harish when the incident had taken place, many persons had collected at the spot. However, neither any witness, who had collected at the spot or from vicinity or from marriage pandal was examined by the investigating officer. It was further submitted if as per version of the witnesses, they had gone to police station first, then why their statement was not recorded there. Moreover, as per MLC injured was found to be under the influence of Alcohol. The injured himself initially did not speak about consumption of alcohol. It was only in cross examination that he tried to give explanation that he was forced to consume the liquor by the accused. However, his testimony in this regard does not find corroboration from PW2, Rajender Yadav, brother of injured. The recovery is alleged to have effected from the open space and therefore cannot be relied upon. Moreover, no blood stain was found on S.C. No. 88/10 Page 5/19 6 the weapon of offence. Accused persons are alleged to have been apprehended at the pointing out of Rajender Yadav. However, he is neither the witness to the disclosure statement nor of the recovery. Further more, while PW2 deposed that he had removed his injured brother to hospital. According to PW4 HC Umesh Kumar, when they went to spot they came to know that injured has been removed to GTB Hospital by PCR Van. Further more, injured has tried to show that due to past enmity, accused persons had assaulted him. It cannot be believed that for a incident, which had taken place about three or four years ago, accused will try to take revenge on that day. Accused have examined two defence witnesses, who have deposed that injured sustained injuries by fall from the scooter and even the doctor has deposed that injuries are possible due to fall from the scooter. It was submitted that defence witnesses are entitled to same weightage as that of prosecution witnesses. As such it was submitted that prosecution has not been able to establish its case beyond reasonable doubt. Therefore, accused are entitled to be acquitted.
8. Per contra, it was submitted by ld. Prosecutor that there is no plausible reason as to why injured would falsely implicate the accused persons. No reliance can be placed on the testimony of defence witnesses, inasmuch as, DW1 has deposed that he had gone to attend the marriage, but in marriage card produced by him, his name does not find S.C. No. 88/10 Page 6/19 7 mention. DW2 has not seen the incident. There is no material contradiction in the testimony of material witnesses. As such it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt. As such both accused are liable to be convicted of the offence.
9. I have given my considerable thought to respective submissions of the ld. counsel for the parties and have carefully perused the record.
10. PW1 Harish is the injured. This witness has deposed that on 12.02.09 there was a marriage at community centre, CPA Block. At about 11pm, he along with his brother Rajender Yadav came outside the Pandal after attending the marriage. At that time, accused Lokesh and Dinesh along with their associates assaulted him with lathi and hockey sticks, as a result of which he sustained injuries on his elbow, head, right ear and legs. His brother Rajender intervened and rescued him from clutches of the accused persons. His elbow was got operated due to injuries. Three or four years prior to the incident, a dispute had taken place between him and the accused persons and he had asked them not to come near his house. At that time, matter was intervened by respectable. During the incident, his mobile phone and Rs.1,500/ were found missing. He was removed to GTB Hospital by his brother Rajender. Police came in the hospital and recorded his statement Ex.PW1/A. He identified hockey S.C. No. 88/10 Page 7/19 8 sticks Ex.P1 and danda/lathi Ex.P2 to be the same by which he was assaulted by the accused.
11. PW2 Rajender Singh Yadav is the brother of PW1 Harish and this witness has unfolded that on 12.02.09 he had gone to Community Centre, situated at Seelampur to attend a marriage with his brother Harish. At about 11pm they came outside the Pandal, accused Dinesh and Lokesh with their associates met them. They were armed with hockey sticks and dandas in their hands. They assaulted his brother Harish, who sustained injuries on his elbow, right hear, head and leg. He intervened and rescued his brother. He took his brother to PS Seelampur, where he was instructed by police officials to take him to hospital. As such he took his brother to hospital. Police reached there and recorded statement of his brother. He had shown place of incident to police. On 13.02.09 both accused persons were arrested from JBlock from near Naveen Public School at his instance. Three or four years ago, a dispute had taken place between his brother and the accused persons and due to this reason they were having enmity. His statement was recorded by police. He had also identified the hockey stick and danda as the same by which accused persons had assaulted his brother.
12. PW8 SI Harbhajan Singh is the investigating officer of the case. He has deposed that on receipt of DD No.33A Ex.PW8/A, he along with HC S.C. No. 88/10 Page 8/19 9 Umesh Kumar went to CPA block, Community Centre, New Seelampur, where they came to know that injured has been removed to GTB Hospital. As such he along with PW4 HC Umesh Kumar went to GTB Hospital and collected MLC of injured Harish, who was declared fit for statement. As such he recorded statement of injured Harish Ex.PW1/A, made endorsement Ex.PW8/B and prepared rukka and sent the same through HC Umesh Kumar for registration of the case. Thereafter, he along with Rajender Yadav went to spot and prepared site plan Ex.PW8/C at his instance. He further deposed that in the evening of 13.02.09 he went to house of Rajender Yadav and at his instance accused Lokesh was arrested from ABlock near Naveen Public School vide seizure memo Ex.PW4/A and accused Dinesh was apprehended near Community Centre, CPA Block, New Seelampur, Delhi, who was arrested vide arrest memo Ex.PW4/C. He recorded disclosure statement of accused Lokesh and Dinesh vide Ex.PW4/E and Ex.PW4/F. At the instance of accused Dinesh, hockey was recovered from behind the Community Centre, which was taken into possession vide memo Ex.PW4/G. Accused Lokesh took out danda from the drain situated near community centre, which was taken into possession vide seizure memo Ex.PW4/H.
13. Harish was medically examined by Dr. Khushwant and he prepared his MLC Ex.PW6/A. PW7 Dr. Divesh Gulati gave opinion regarding nature S.C. No. 88/10 Page 9/19 10 of injuries as grievous, while PW9 Dr. Neeru Chugh opined the nature of injuries after examining ENT clinical record to be simple in nature.
14. As regards the legal proposition of testimony of injured witness, same is well settled that testimony of an injured witness has its own relevance and efficacy. It has greater evidentiary value. As observed by Hon'ble Apex Court in Krishna vs. State of Haryana, (2006) 12 SCC 459, if the testimony of an injured witness is consistent before the police and the Court and corroborated by medical evidence then the testimony of such witness cannot be discredited. In the light of this legal proposition, testimony of injured has to be considered.
15. A perusal of initial statement Ex.PW1/A made by the injured goes to show that he has stated before the police that when he came out along with his brother out of marriage pandal, both accused persons along with their associate inflicted injuries on his head, ear, hand and legs with hockey sticks and dandas. Perusal of this statement goes to show that there was no mention about previous enmity between the witness and the accused persons or that he had consumed alcohol. This fact assumes significance because from the very beginning it is the defence of the accused that injured had consumed liquor and he had fallen from the scooter and as such sustained injuries. In crossexamination the witness deposed that he had not consumed liquor. However, when accused S.C. No. 88/10 Page 10/19 11 persons met him outside the Pandal, they forced him to drink the liquor and they poured liquor in his mouth. He admitted that this fact was not stated by him to the police by stating that same was not inquired from him by the police. PW2 Rajender Yadav, who is allegedly eyewitness of the incident pleaded his ignorance, if his brother had taken drink on that day or not. According to him, he had not taken drink in his presence. He also could not say, if his brother was under influence of liquor. As per MLC, the injured was found under influence of alcohol. It is not the case of the injured or of his brother that injured had already consumed alcohol. If the testimony of Harish, the injured, is believed as correct that he was made to drink liquor by the accused persons, then if Rajender Yadav was present at the spot he would have also seen that accused poured some liquor in the mouth of the witness. However, as stated above, Rajender Yadav has totally pleaded his ignorance. Harish himself did not disclose this fact before police in his initial statement and even not in his examinationinchief. It was only during his crossexamination that he tried to give explanation that accused persons poured liquor in his mouth.
Further more, according to PW1 there was light near the place of incident and many persons had collected at the spot, but nobody came to save him as accused had threatened them that in case they come then they would also meet the same fate. However, he admitted that even this S.C. No. 88/10 Page 11/19 12 fact was not stated by him before the investigating officer of the case. His testimony in this regard does not find corroboration from PW2 Rajender Singh Yadav, who deposed that it was dark and nobody had collected at the spot.
Further more, both these witnesses have deposed that they had given name of the assailants to the doctor. Perusal of MLC goes to show that name of the assailants does not find mention in the MLC.
Aforesaid discussion goes to show that injured Harish has made material improvements in his testimony, moreover on material aspects his testimony does not find corroboration from his brother Rajender Yadav. It has further come in the testimony of both witnesses that blood had come on the clothes of injured Harish and his brother had kept a cloth on his head in order to stop the bleeding. The blood also came on the cloth of Rajender Singh Yadav. Meaning thereby that clothes of Harish as well as Rajender Yadav were smeared with blood, but no blood stained clothes were taken into possession by the investigating officer of the case.
16. The incident is alleged to have taken place outside the marriage Pandal and even the Barat had not come at that time. It has been admitted by PW1 that many persons were present in the Pandal and even at that time incident many persons had collected at the spot. There were residential houses nearby, despite that no independent witness have been S.C. No. 88/10 Page 12/19 13 examined as a witness.
17. Further more, it is the case of both the witnesses that a dispute had taken place three or four years prior to the incident. According to injured, at that time he did not make any complaint to police as the matter was pacified due to intervention of elders. However, his testimony in this regard again does not find corroboration from Rajender Yadav, who had deposed that he had called police by dialling 100 number. But he went on stating that no police official had come on that day. It is admitted by both witnesses that during the period of three or four years, they and the accused persons kept on meeting each other and no quarrel took place. Therefore, even if the incident had taken place about three or four years ago, the matter got pacified by that time and there was no plausible reason as to why without any rhyme and reason accused persons would suddenly come and assault the injured.
Moreover, as observed by Hon'ble Apex Court in AIR 1996 SC 3431, Bhagirathi and others vs. State of Haryana, motive is a double edged weapon. Therefore, if case of the prosecution that due to previous enmity accused persons assaulted the injured the submission of defence that due to same reason accused falsely implicated in this case, same also cannot be brushed aside.
Further more, it is the of the prosecution that on 13.02.09 both S.C. No. 88/10 Page 13/19 14 accused persons were arrested at the instance of Rajender Yadav. Testimony of Rajender Singh Yadav is confined to the arrest of accused at his instance. As per the case of the police officials, after arrest of accused persons they made disclosure statement and in pursuance thereof, accused Dinesh got recovered hockey sticks from behind community centre while accused Lokesh got recovered danda from drain situated near community centre. The arrest of the accused persons at the instance of Rajender Yadav is not proved beyond reasonable doubt, inasmuch as, arrest memo of both accused persons does not bear his signatures. Moreover, if the accused persons immediately after arrest made disclosure statement then it is not understandable as to where witness Rajender Yadav had gone. It is not even the case of the prosecution that recovery was effected in the presence of Rajender Singh Yadav. PW8 SI Harbhajan Singh has admitted in crossexamination that there were residential houses near the community centre from where recovery was effected and he did not ask any neighbourer to join the search. 1995 (3) CC Cases 252, Satish Kumar vs. State was also a case where no independent witness was joined either at the time of recording disclosure statement or at the time of recovery. Hon'ble High Court observed that it is not understandable as to how this basic principle of investigation has been lost sight of by the investigating officer that at the time of interrogating the S.C. No. 88/10 Page 14/19 15 accused persons or for making recoveries which are admissible under section 27 of the Evidence Act, sincere efforts must be made by the investigating officer to join the independent public witnesses. It is not the case that no such public witness were available or any sincere effort was made in joining the public witnesses, but without success. Under these circumstances, it was held that genuineness of the disclosure statement and recoveries allegedly effected on the basis of disclosure statement are suspicious. Substantially similar view was taken by Hon'ble Apex Court in 1999 Cr.L.J. 19 Sanspal Singh vs. State of Delhi, where no independent witness was joined at the time of search when recovery was being effected. It was held that no explanation was forthcoming as to why public witnesses were not joined despite availability. As such conviction was set aside.
In the instant case also as per testimony of investigating officer himself, accused persons were arrested at the instance of Rajender Yadav. Meaning thereby that atleast he was available to the police at the time of recording disclosure statement and effecting recovery. No explanation is forthcoming as to why he was not joined at the time of investigation or further recovery. Besides that admittedly, there were residential houses near the community centre, but the investigating officer had admitted that he did not ask any neighbourer to join the search. Here S.C. No. 88/10 Page 15/19 16 again, no explanation is given by him as to why he did not join any neighbourer to join the search. As such recovery becomes doubtful.
18. Further more, investigating officer also admitted in his cross examination that danda and hockey sticks were lying in open. Meaning thereby they were not concealed anywhere. Such seizure from open and accessible place can hardly be said to be recovery on the basis of disclosure statement. For holding this view I am fortified by Arun Kumar vs. State, 1996 (3) CC Cases 109, where relying upon Akhlesh Hazan vs. State of Bihar, III (1995) CCR 24 (SC), it was held that seizure from an open accessible place can hardly be said to be recovery on the basis of disclosure statement. Moreover, there is no specific identification mark on the danda or hockey. Under these circumstances, recovery of weapon of offence at the instance of accused is also not proved beyond reasonable doubt.
19. It is the case of the accused that they are innocent and have been falsely implicated in this case. Acording to them, thei njured had sustained injuries due to fall from scooter under influence of liquor. In order to support their version, they have examined two witnesses in their defence. DW1 Riyazuddin has deposed that on 12.12.09 after attending the marriage of daughter of Amar, he came out of community centre and was standing at the gate. He saw Harish Pehlwan under the influence of liquor. S.C. No. 88/10 Page 16/19
17 He was trying to start the scooter. He was fully drunk and fell down. Public persons lifted him. He again started his scooter, but could not control the same and fell down on the turning of the road. He sustained injuries on his head. After sometime, his brother reached there and took him with him. His testimony has been tried to be assailed by the ld. Prosecutor on the ground that he had brought marriage invitation card Ex.DW1/PA where his name is not mentioned on the invitation card. The mere fact that name of this witness is not mentioned on the marriage invitation card does not ipso facto raise any presumption that he did not attend the marriage because it is possible that invitation card is given in the name of head of family and then some member of the family attend the marriage. Moreover, there is no enmity between him and the injured, inasmuch as, injured was also known to him from before as according to him, he used to join wrestling in the akhara of Harish. As regards DW2 Mukesh, he has also deposed to the same effect as DW1. However, as regards this witness accused does not get any benefit, inasmuch, he admitted that when he reached the spot the accident had already taken place and he had not seen the accident.
20. It is the cardinal principle of criminal jurisprudence that onus of proving its case beyond reasonable doubt squarely lies upon the prosecution and the prosecution has to establish the guilt of the accused beyond reasonable doubt. In the instant case, the accused persons have S.C. No. 88/10 Page 17/19 18 been able to raise suspicion regarding the case set up by the prosecution, inasmuch as, besides the testimony of these two defence witnesses, who have deposed that injured Harish sustained injuries due to fall from the scooter and he was under influence of liquor same finds support from MLC prepared by Dr. Khushwant, and perusal of the same goes to show that it gave positive finding regarding alcohol. Dr. P.K. Shah, who had come to prove MLC on behalf of Dr. Kushwant Singh, who has left the services of hospital, has not ruled out the possibility of sustaining injuries as mentioned in MLC due to fall from scooter. Similarly, Dr. Divesh Gulati, who has opined nature of injuries to be grievous has also deposed in crossexamination that injuries mentioned in MLC can be possible due to fall from the scooter.
21. The aforesaid discussion goes to show that two views are forthcoming, the case set up by the prosecution is that injured sustained injuries having been assaulted by the accused persons, while the case set up by the accused is that injured was under influence of liquor and due to fall from scooter he sustained injuries. The defence taen by the accused is not totally rule out from the prosecution version, inasmuch as, as per MLC the injured was found to have consumed alcohol and even the doctoer have not ruled out the possibility of injuries due to fall from the scooter. It is settled principle of law that if two views are possible, then the S.C. No. 88/10 Page 18/19 19 view favourable to accused has to be taken. For holding this view I am fortified by 2010 (III) CC Cases (SC) 10, M.C. Ali and another vs. State of Kerala. In State of Rajasthan vs. Islam, 2011 (VI) AD (SC) 86 also Hon'ble Apex Court observed that the principle throughout which runs through administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and other to the innocence, the view which is favourable to the accused should be adopted.
22. In view of the discussions made above, prosecution cannot be said to have prove the guilt of the accused beyond reasonable doubt, and as such accused persons are entitled to benefit of doubt. Accordingly, they are acquitted of the charge. In compliance of provisions of section 437A Cr.P.C, accused persons are directed to furnish personal bond in the sum of Rs.5,000/ each with one surety each of the like amount, which shall remain in force for a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 6 day of July, 2011. District JudgecumASJ, I/C Karkardooma Courts, Delhi.
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