Delhi District Court
State vs 1. Sher Singh on 31 May, 2022
IN THE COURT OF ARUN SUKHIJA: ASJ-03 (EAST):
KARKARDOOMA COURTS: DELHI.
S.C. No: 2996/2019
State Versus 1. Sher Singh
S/o Sh. Ram Swaroop
R/o 28/165, Trilokpuri, Delhi.
2. M. Sandeep
S/o Sh. Radha Krishan
R/o 28/474, Trilokpuri, Delhi.
3. Suraj @ Mishri
S/o Sh. Mulai Ram
R/o 13/265, Trilokpuri, Delhi.
FIR No. 462/2018
PS. Kalyanpuri
U/s. 308/34 IPC
Chargesheet Filed On : 27.06.2019
Chargesheet Allocated On : 19.08.2019
Court Presided over on : 22.07.2021
Judgment Reserved On : 28.05.2022
Judgment Announced On : 31.05.2022
::- J U D G M E N T -::
1.As per the report under Sec. 173 CrPC, briefly, facts of the present matter are that Shri Dinesh Kumar S/o Late Shri Jung Bahadur, the complainant/one of the injured, lodged a report with the police inter alia alleging therein that on 09.09.2018 at about 8.35 p.m., while he and his brother Ajay were present in 23 Block in front of House no. 301 to 310, Sandeep @ Anna and Suraj @ Mishri came there and SC No. 2996/2019 State Vs. Sher Singh etc. Page - 1 of 12 attacked with rod and dandas on Ajay and him (complainant) and after causing injuries, fled away from there. He (complainant) made a call at 100 number and they themselves rushed to LBS Hospital, where they were medically examined. It is also alleged in the said statement that they suspect that attack has been done on them by Sher Singh.
2. On the basis of statement of the complainant and circumstances, present FIR bearing No. 462/2018 under Sections 308/34 of Indian Penal Code, 1860 (hereinafter referred to as "IPC"), P.S. Kalyan Puri was registered.
3. During investigation of the present matter, statement of Ajay, brother of Dinesh, was also recorded and he named Sandeep @ Anna, Suraj @ Mishri and Sher Singh for the crime in the present matter. It is also case of the prosecution that on 16.09.2018, accused Sandeep was arrested. Accused persons Suraj @ Mishri and Sher Singh obtained anticipatory bail and formal proceedings were conducted in the present matter. On conclusion of the investigations, charge-sheet was filed against these accused persons before the Court of ld. Metropolitan Magistrate for the offence punishable under Sections 308/34 IPC.
4. After compliance of provisions of Section 207 of Code of Criminal Procedure, 1973 (in Short "CrPC") by the Court of learned MM, case was committed to the court of Sessions, as the offence under Section 308 IPC is exclusively triable by it.
5. Vide order dated 04.09.2019, passed by the ld. predecessor, Charge under Sec.308/34 IPC was framed against all these accused persons. To the said charges, all accused persons pleaded not guilty and SC No. 2996/2019 State Vs. Sher Singh etc. Page - 2 of 12 claimed to be tried.
6. To prove the guilt against this accused, prosecution examined total seven witnesses in support of its case, who are as follows:
(i) PW-1 Dinesh Kumar is complainant/one of the victim. He proved his statement as Ex.PW1/A;
(ii) PW-2 Ajay Kumar is another victim;
(iii) PW-3 Dharam Singh is one public witness in the present matter;
(iv) PW-4 Ms. Muskan made a PCR call for the incident.
(v) PW-5 Const. Vishnu Kumar is a witness to the arrest of accused Sandeep and proved the memos.
(vi) PW-6 HC Jitender joined the investigation of this case with IO and got the case registered on being ruqqa handed-over to him.
(vii) PW-7 ASI Gabbar Singh is the Investigating Officer, who conducted the investigations of this case and proved the memos of this case.
7. During the prosecution evidence, all these accused persons, vide their statement recorded under Sec. 294 CrPC on 08.04.2021, do not dispute the contents of DD No. 71A; MLCs No. 12728 & 12729 and FIR as Ex.C1 to Ex.C4 respectively. Detailed testimonies of witnesses will be discussed at appropriate stage.
8. Statement of accused persons were recorded under Sec. 313 CrPC and the incriminating evidence was put to them during the said statement. All these accused persons pleaded their innocence.
9. Accused Sher Singh further pleaded that his name has been arrayed in the case on account of political rivalry. He also pleaded that two days' SC No. 2996/2019 State Vs. Sher Singh etc. Page - 3 of 12 prior to the alleged date, his father has expired and on the date and time of alleged incident, he was present in his house.
10. Accused Sandeep further pleaded that he was implicated in this case being worker of Sher Singh and that PWs Dinesh and Ajay started new business of Cable Operator in the area.
11. Accused Suraj @ Mishri further pleaded that he has been named in this matter falsely. He has stated that since 2010, he was in a business of Cable Operator being partner of Atar Singh, who was running the business under the name and style of "Sahil Cable", but in the year 2018 in April-May, he started his own business of Cable operator. Four persons namely Ajay, Dinesh, Dharam Singh and Rajesh, who were working with Atar Singh, used to come to him, after starting of his business and they used to threaten him that he should not run his own business separately. Further, he has mentioned various incidents, which the said persons had done with him and also deposed about lodging of complaints and FIR for the same.
12. All these accused persons opted to lead Defence Evidence. Shri Sher Singh and Sandeep had examined DW-1 Sunil Pandey, who proved Death Certificate of father of Sher Singh as Mark DW1/A further stating that on 09.09.2018, he remained with Sher Singh entire day at his house and even took dinner there, further stating that M. Sandeep and 2-3 more persons were also with them. Accused Suraj @ Mishri examined himself and reiterated his stand and proved various documents as Ex.DW2/A to H, to prove his defence.
13. I have heard learned Addl. PP for the State and ld. defence counsels as SC No. 2996/2019 State Vs. Sher Singh etc. Page - 4 of 12 well and also scrutinized the record in view of the law laid down.
14. 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 submitted that PW-1 and PW-2 in clear and unequivocal terms narrated the incident and identified all these accused persons for the crime committed upon them and for sustaining injuries at the hands of the accused persons. Ld. Addl. PP for the State further argued that there is no dispute to the fact that both injured persons sustained injuries on the date and time of incident and particularly, this fact is to be seen that all the accused persons have admitted the MLCs of the injured persons vide their statement under Section 294 Cr.P.C. as Ex.C2 and Ex.C3 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. Besides the above, it is also argued by ld. Addl. PP for the State that this is undisputed fact that injured would be the most interested persons to see the actual culprit(s) behind the bars and this all makes the prosecution case more strengthen and ld. Addl. PP, thus, prayed for conviction to all these accused persons.
15. First and foremost contention of the ld. defence counsel is that testimony of the defence witnesses be treated at par and it demolishes the prosecution case as it is clear from the documents produced by SC No. 2996/2019 State Vs. Sher Singh etc. Page - 5 of 12 accused persons. It is contended by ld. defence counsels that all accused persons proved that they were not present at the place of incident on the date and time of alleged incident. Ld. counsel for accused Suraj @ Mishri submitted that even as per the bail record and other material on record, this accused has clearly established that he has been implicated falsely in the present matter only on account of business rivalry.
16. Learned counsel for these accused persons submitted that case is full of contradictions and improvements, which is a major blow on the prosecution case. It is contended by learned defence counsels that very interestingly, in the initial statement of complainant, he only mentioned about presence of two accused persons and admittedly, further stating that Sher Singh might have instrument for the crime and when PW-2 appeared in the dock, during his examination-in-chief, he named all the three accused persons present there with 30-40 more associates and all this makes the case fall flat only for this reason. It is also contended by ld. defence counsels that it is natural principle of justice that when two views are possible, benefit of the same must be given to the accused and hence, accused persons are entitled for benefit of doubt. Ld. defence counsels, thus, prayed for acquittal to the accused persons. It is also argued that out of ill will, grudge and enmity, the injured persons, with help of his friend/partner, has lodged the complaint against the accused persons.
17. This Court has considered the rival submissions and scrutinized the record with judgments on the point in issue in the case.
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18. Qua first and foremost contention of ld. defence counsel that testimony of the defence witnesses be treated at par with prosecution witnesses, this Court is of the view that it is an undisputed fact that defence witnesses tendered by defence, cannot always be termed to be a tainted one and they are entitled to equal treatment and equal respect, as that of the prosecution witnesses, but it must be kept in mind that their evidence must be reliable and credible and for holding this view, Court is taking shelter of the cases reported as State of Haryana Vs. Ram Singh 2002 (1) JCC 385 (Supreme Court of India) and Anil Sharma & Ors. Vs. State of Jharkhand [2004 (3) RCR (Cri) 774]. However, this issue is kept open and will be considered with other material on record.
19. The material witnesses of the present case are PW-1 Dinesh Kumar and PW-2 Ajay Kumar. Both these witnesses pointed-out towards accused persons stating that these are the persons, who are responsible for the injuries caused to them. PW-1 Dinesh Kumar, during his cross- examination conducted on 08.03.2021, in clear words, stated that accused Suraj @ Mishri was also working with Atar Singh @ Billu and also admitted that said person had made a complaint against him and his brother Ajay, Rajesh, Dharam Singh and Atar Singh @ Billu prior to the incident. This witness has also admitted that an FIR No. 329/2019 P.S. Mayur Vihar has also been registered against him. The perusal of evidence reveals that after the assault, the injured persons rushed to the police station instead of Hospital and more surprisingly, they got conducted videography in the police station on reaching there.
SC No. 2996/2019 State Vs. Sher Singh etc. Page - 7 of 12 However, in the complaint Ex.PW-1/A, the complainant has alleged that they have called 100 number and they were rushed to LBS Hospital. Moreover, in the said video, they have not named Suraj @ Mishri for the present crime. It is admitted fact that accused persons and complainant side were not on cordial terms or were not known to each other on account of business and political rivalry.
20. Another interesting factor is that in his initial statement, complainant only named two persons i.e. M. Sandeep and Suraj @ Misri for the injuries causing to him and his brother, further stating that he is of the view that this incident has been got conducted at the hands of accused Sher Singh. This clearly shows that accused Sher Singh was not present at the place of incident at that time. The complainant was examined as PW-1 and in the said statement also, he has stated that incident was committed at the instance of accused Sher Singh, who earlier threatened his partner Rajesh to Kill on his mobile phone. But when PW-2 Ajay Kumar appeared in the witness box on 15.10.2019, he stated that - ".....Sandeep @ Anna present in the court today along with 30-40 associates came there and attacked upon me and my brother Dinesh who also came there, with rods and dandas. I was badly beaten by accused Sandeep @ Anna, Sher Singh and Mishri with rod and danda and my brother also beaten by them with rod and danda"... One witness stated that only two persons came and attacked them, while another victim stated that 30-40 persons with three accused persons were present there, how is it possible that one may forget the main culprits and to this aspect, PW-1 Dinesh Kumar is SC No. 2996/2019 State Vs. Sher Singh etc. Page - 8 of 12 conspicuously silent about presence of Sher Singh at the spot, on the contrary, categorically stating that the said alleged incident was done at his instance. Specifically, non-presence of one of the accused, at the spot, by one witness and role attributed and presence of said accused, at the spot by another witness, raises a finger on the trustworthiness of the witnesses. Furthermore, there is not even iota or scintilla of evidence to connect Sher Singh from the alleged incident.
21. One other interesting point in the present matter is that qua accused Suraj @ Mishri, while he applied for anticipatory bail, observations have been made in the order passed by ld. ASJ and same are also important and fatal to the prosecution case. Undisputedly, various complaints were also made by Suraj @ Mishri against complainant side with more persons for incidents committed upon him at various points of time. It is not out of place to mention here that even on the complaint dated 09.10.2018 of Suraj @ Mishri, after due verification and proper investigation, an FIR No. 609/2018, dated 03.12.2018, lodged at P.S. Kalyan Puri, against both injured persons, in the present matter and some more persons.
22. Furthermore, at the time of preparation of MLC, none of the injured persons has named any of the accused persons, although, they were aware about the accused persons. It cannot be ruled out that on account of that grudge, ill will and enmity, complainant, with the help of his partners/friends, deliberately named accused persons for the alleged incident. Moreover, the witnesses produced by the defence coupled with documents have demolished the case of prosecution.
SC No. 2996/2019 State Vs. Sher Singh etc. Page - 9 of 12 Considering the peculiar facts and circumstances of the present case, this Court is of the considered view that prosecution was also required to record evidence of some independent person(s) from the place of incident, which is admittedly thickly populated area. All this casts a serious doubt on the prosecution story and is clear indication that prosecution case is shrouded with mist.
23. In a case reported as C.S. Aggarwal Vs. State, Test. Case 8/1995 decided on 29.03.2019 by Hon'ble High Court of Delhi , it has been observed that in Dalip Singh V. State of UP (2010) 2 SCC 114, Hon'ble Supreme Court observed that a new creed of litigants has cropped up in the last 40 years, who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of Hon'ble Supreme Court are as under:-
"For many centuries, Indian society cherished two basis values of life i.e. Satya (truth) and Ahimsa (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in the pre- independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
In last 40 years a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and SC No. 2996/2019 State Vs. Sher Singh etc. Page - 10 of 12 unethical means for achieving their goals. xxxxxxx it is now well established that a litigant who attempt to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief xxxxxxxx. (emphasis laid)."
24. 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. It is well recognized that minute details of incident, with the passage of time, go out of memory. 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. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence.
25. 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 for 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).
26. In view of the overall discussion and material placed on record, this SC No. 2996/2019 State Vs. Sher Singh etc. Page - 11 of 12 Court is of the view that prosecution has miserably failed to prove its case beyond all reasonable doubts and as such, accused persons are entitled for their acquittal. Accordingly, accused persons namely Sher Singh, M. Sandeep and Suraj @ Mishri are hereby acquitted for the offence punishable under Sec. 308/34 IPC.
27. Case property 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 31 st day of May, 2022.
(ARUN SUKHIJA) Addl. Session Judge-03 (East):
KKD Courts: Delhi.
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