Delhi District Court
State vs Yogesh @ Yashpal @ Pintu on 29 April, 2019
In the Court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District, Saket, New Delhi.
Session Case No. 7167/2016
In the matter of :
State
Versus
Yogesh @ Yashpal @ Pintu
S/o Banwari Lal
R/o Village & P.O Dhantoli, P.S Gonda,
District Aligarh, Uttar Pradesh.
FIR No. : 402/2014
Police Station : Sangam Vihar
Under section. : 328/325/406/34 IPC
Date of assignment : 04.07.2015
Reserved for judgment : 29.04.2019
Date of decision : 29.04.2019
JUDGMENT
1. Prosecution story as per chargesheet in brief is that on 30.07.2014 complainant Mohd. Sabir reached police station where ASI Dharamvir Singh recorded his statement in which he alleged that he works as a driver, and he received a call from mobile no. 07351672097 on 25.07.2014 enquiring that they had the information regarding the sale of vehicle, then, they called him at Bandh Road, Chauhan Complex, Sangam Vihar. At around 4.00 p.m., he in his Swift Dzire reached Chauhan Complex where he met two persons who asked him for trial of the car, thereafter during trial at M. B. Road near village Tuglakabad, they purchased Pepsi and made him to drink, pursuant to which he felt dizziness and asked them to leave him at his house but got unconscious. When he regained State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 1 of 10 consciousness found himself in the area of Neem Gaon, P.S Raya, District Mathura, thereafter, one person called at his home, his family members came there and took him to AIIMS Trauma Center, Delhi. He further stated that one of the person who had taken him is Yogesh @ Pintu @ Yashpal, and further requested that his car be also traced. Pursuant to his statement, present FIR was registered.
2. During investigation, site plan was prepared. The rehdiwala from whom the Pepsi was purchased was searched but could not be found. Result over MLC was obtained. The call details records of the mobile phone were searched. Accused Yogesh @ Yashpal found absconding, thereafter proceedings u/s 82 CrPC were initiated against him. On 21.03.2015, accused surrendered in the court and then arrested. During his PC Remand, coaccused Vinod was searched but could not be found. The stolen vehicle Swift Dzire also could not be traced. On completion of investigation, chargesheet was filed.
3. On committal, vide order dated 11.01.2016, charges u/s 328/406/325/34 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution in order to substantiate its case examined seven witnesses. The summary details of their deposition is as under:
5. PW2 Mohd. Sabir stated that on 25.07.2014 while working as Driver in Sangam Vihar, he received a phone whether he wish to sell his vehicle, however, he do not remember the phone number. Thereafter, the caller called him at Bandh Chowk Chauhan complex alongwith vehicle. He reached there and met two persons and had a conversation with them. Then those persons asked him to give trial, thereafter, they came to M B Road near Tuglakabad. When they reached Tuglakabad, those persons State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 2 of 10 bought Pepsi from a rehri and gave it to him. They also consumed the same. After consuming Pepsi, he felt giddy. Then, they asked him that they will drop him at his house, thereafter, he lost his consciousness and regained it at Neem Gaon Mathura. One person in that village gave his mobile phone, then, he called at his home. Thereafter, his family members reached Neem Gaon and took him to AIIMS Trauma Center from where he was discharged on the next day. Thereafter, he made a complaint at P.S Sangam Vihar on 30.07.2014. On enquiry, police came to know about the name of one of the assailant as Yogesh @ Yashpal. Police prepared the site plan and also took him to the place from where the accused persons bought Pepsi and also at Neem Gaon where accused had thrown him and went away with his Swift Dzire car. Police also made enquiries from public persons regarding the car and about accused persons. The public persons informed the police that he was found unconscious. Thereafter, they came back to Delhi. He further stated that police apprehended accused Yogesh and he was informed about the arrest of accused when he visited the police station. He further stated that accused Yogesh is the same person who had taken the car for test drive and offered him Pepsi. He further stated that on regaining consciousness found that he suffered injuries on his head and his nasal bone was also fractured.
6. In crossexamination stated that he might have left with car at about 3 / 4 p.m on the day of incident and M B Road was about 3 kms from the Bandh Road, and it took about 20 minutes to reach M B Road. He also stated that he went to P.S Neem Gaon but they did not take his complaint and told him to make complaint in Delhi. He further stated that his family members reached Mathura around 12 noon. He further stated that after State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 3 of 10 coming to Delhi, he did not call 100 number, and was taken to AIIMS Trauma Center, therefore, he was not in a position to make a call. He further stated that he reached trauma center at about 5.00 p.m and remained admitted there for 34 hours and was discharged at 12 midnight. He went to the police station Sangam Vihar on 27.07.2014 but had not given any written complaint, however, police recorded his statement on that day itself. He further stated that he visited Police Station 34 times. He thereafter went to the place of incident with police on 30.07.2014 and went to Neem Gaon on 03.08.2014. He further stated that he do not know whether any site plan was prepared. He denied suggestion that he know the accused prior to the incident. He also denied that the accused had dispute with his uncle Saifi, therefore, he was falsely implicated. He however stated that he had no uncle by the name of Saifi.
7. PW6 IO ASI Dharamvir Singh stated that on 30.07.2014, complainant Sabir gave him the complaint and on the basis of the said complaint, FIR was registered, then, he went to the place of incident alongwith the complainant, prepared site plan, name of one of the assailant was revealed as Yogesh @ Pinto. He collected his MLC, obtained the MLC result. Accused was searched but could not be traced. Thereafter proceedings u/s 82 CrPC were initiated. On 21.03.2015, accused Yogesh surrendered in the court. Accused Yogesh disclosed the name of coaccused as Vinod and also stated that he had taken the stolen vehicle but Vinod could not be traced. The CDR of mobile phones were obtained. In crossexamination stated that the complainant came to the police station in the morning and he recorded his statement and name of accused came to the knowledge of complainant when they were talking by name with State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 4 of 10 each other. He could not find any CCTV footage at Chauhan Complex. He further stated that he had not collected the CAF of mobile numbers however accused Yogesh accepted that the said mobile number belongs to him. He further stated that he did not visit P.S Neem Gaon and also not recorded the statement of person who provided phone to the complainant as that person could not be traced. He denied suggestion that he had not conducted the investigation properly.
8. PW1 HC Avdesh Duty Officer recorded the FIR. PW3 Dr. Inderjit exhibited the MLC and transfer out form of the injured. PW7 Dr. Adarsh Kumar exhibited the subsequent opinion given by Dr. Mahesh Kumar. PW4 Ct. Mukesh is the witness to the arrest of accused Yogesh and accompanied IO during investigation to Mathura. PW5 HC Ramesh Kumar accompanied IO to Neem Gaon during investigation. Material Exhibits
9. Ex. PW 1/A is the FIR. Ex. PW 2/A is the statement of injured/complainant Mohd. Sabir. Ex. PW 1/B is the endorsement on the rukka. Ex. PW 6/A is the rukka. Ex. PW 2/B is the site plan. Ex. PW 3/A is the MLC. Ex. PW 6/B is the subsequent opinion. Ex. PW 3/B is the discharge summary/ transfer out form. Ex. PW 4/C is the disclosure statement of accused. Ex. PW 4/A is the arrest memo of accused. Mark PW 6/C1 to Mark PW 6/C6 are the CDRs of mobile numbers 7351672097 and 9966640324.
10. Accused in his statement u/s 313 CrPC denied all the incriminating circumstances put to him and not opted to lead defence evidence.
11. Ld counsel for the accused submitted that the testimony of PW2 State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 5 of 10 Mohd. Sabir is not at all credible. His statement is even not corroborated through medical evidence regarding giving of any stupefying substance in the cold drink. Ld counsel submitted that as per the MLC the injured is found to have suffered fracture injuries however he has not deposed anything in his testimony that he was assaulted by the accused. Ld counsel submitted that prosecution not able to prove the call details record of mobile phones, and even not examined the family member of the injured who brought him to Delhi from Mathura. No intimation was given to any police station at Mathura. Ld counsel submitted that prosecution miserably failed to prove its case, hence, accused is entitled to be acquitted.
12. Ld. Addl. PP on the other hand submitted that the testimony of injured witness PW2 is corroborated with the MLC. Ld Addl. PP submitted that the testimony of PW2 cannot be brushed aside because any stupefying substance is not found in the MLC. Ld. Addl. PP submitted that merely on the basis of defects in the investigation, the testimony of PW2 cannot be ignored. Ld Addl. PP submitted that it is settled law that on the basis of sole testimony of injured witness the conviction can be accorded. Ld Addl. PP submitted that prosecution able to prove its case beyond reasonable doubt and accused is liable to be convicted for the offences charged.
13. Arguments heard. Record perused.
14. Brief background of the prosecution story is that on 25.07.2014, PW2 injured Mohd. Sabir received a call regarding sale of his Swift Dzire car no. DL 3C CA 3526. Thereafter, he went to Chauhan Complex where he found two persons who took him with his car for trial, and during trial at M. B. Road, Tuglakabad Village, they took Pepsi which was given to him and also State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 6 of 10 consumed by them. Thereafter, he became unconsciousness and regained consciousness in Neem Gaon, Mathura on next day i.e. 26.07.2014. From Neem Gaon, he called his family members who brought him to Delhi and got him admitted at AIIMS Trauma Center where he was treated and found to have suffered minor injuries on head and fracture of nasal bone. He was discharged from the hospital on the same day i.e. on 26.07.2014 and finally made a police complaint on 30.07.2014 pursuant to which FIR was registered. Police during investigation found involvement of accused Yogesh and one Vinod, however, Vinod alongwith stolen Swift Dzire car was not found traceable.
15. The entire prosecution case is dependent upon the testimony of injured PW2 Mohd. Sabir. Injured PW2 Mohd. Sabir in his deposition also stated that he was called at Bandh Chowk, Chauhan complex where he met two persons who brought Pepsi during the trial of the car and on consuming the same, he became unconscious and regained consciousness at Neem Gaon, Mathura on the next day. This witness deposed about receiving of a call regarding the sale of his Swift Dzire car. However, there is nothing on record to suggest that the said Dzire car was owned by him. There is unexhibited document on record showing that the said car was in the name of one Nisar Ahmed, however, the said Nisar Ahmed is neither examined during investigation nor nor in the court. PW2 in his statement before the police Ex. PW 2/A stated that he had received the call from mobile no. 7351672097 alleged to be that of accused Yogesh. However, there is nothing on record to suggest that the said mobile phone belongs to the accused. PW6/IO Dharamveer Singh stated that he had not collected any Customer Application Form. PW6/IO exhibited the call details record of mobile numbers 7351672097 State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 7 of 10 and 9911640324 for the period from 24.07.2014 to 26.07.2014. However, there are number of calls between these two numbers which is contrary to the statement of injured who stated that he received call only on 25.07.2014. Injured PW2 in his testimony not deposed about his mobile number or the mobile number of accused. He was also not shown the CDR details by the prosecution during his testimony.
16. It is pertinent to notice in this context that this witness in his statement Ex. PW 2/A recorded by the police stated that he came to know about the name of accused Yogesh on enquiry when he was brought back to Delhi. He nowhere stated that from whom he enquired about the name of accused. Number of alleged mobile calls between accused Yogesh and injured on the other hand suggest that the injured must be knowing the accused, however this is not the case as per the testimony of the injured.
17. Injured PW2 in his testimony nowhere stated that the accused persons also beaten him, however as per MLC, he is found to have suffered fracture injuries of nasal bone and minor injuries on forehead. The MLC as well as the discharge summary only depicts the injuries suffered in assault. It is nowhere mentioned in these medical documents that he was also administered any stupefying substance in Pepsi. There is no corroborating investigation as to from whose mobile at Mathura, he contacted at Delhi. There is no consequent report at Mathura. None of the family members of injured were examined to corroborate his story.
18. The incident took place on 25.07.2014, however there is no missing report of that day. PW2 brought back to Delhi and admitted in AIIMS for injuries, however there is no corresponding police intimation. This witness informed the State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 8 of 10 police about the incident on 30.07.2014 i.e. after about 4/5 days of the incident but his explanation regarding nonreporting of incident to police immediately not appears credible. The delay in lodging the FIR also in present facts and circumstances also creates doubt over the credibility of his version.
19. It is settled law that the accused can be convicted on the sole testimony of injured witness, however the said testimony should be credible on the material aspects. The testimony of injured regarding the factum of receiving of call regarding the sale of car is not found corroborative through the owner of the car, recovery of car or call detail record of mobile phones. His testimony regarding taking of Pepsi having stupefying substance is also not corroborated through the MLC or any other witness. This witness in his statement Ex. PW 2/A to the police or in his testimony before the court nowhere stated that any of the accused had assaulted him however found to have suffered fracture injuries. The mobile call details suggests acquaintance with caller but found contrary to version of PW2/injured. Delay in FIR also creates doubt that whether true version reported or not. Admittedly, neither the stolen Swift Dzire car could be recovered nor the coaccused found traceable. On overall appreciation of evidence, the testimony PW2 do not appear to be credible over the story as projected by him. It is settled law that the prosecution has to prove the case in the manner as projected by the prosecution. However, prosecution unable to prove its case in the manner as projected. The case appears to be that PW2 was assaulted in conscious state and not that he was administered stupefying object in cold drink.
20. Ld. Addl. PP submitted that the conduct of the accused that he absconded and later on surrendered himself also suggests that he State v. Yogesh @ Yashpal@ Pintu, SC No. 7167/2016, FIR No. 402/14, P.S Sangam Vihar 29.04.2019 Page no. 9 of 10 is involved in the said incident but the circumstance of absconding itself, when the prosecution could not stand on its legs, cannot be considered as incriminating against the accused.
21. In view of the above discussion prosecution not able to prove its case beyond reasonable. Hence, accused Yogesh @ Yashpal @ Pintu is acquitted of the offences charged by granting benefit of doubt. He is directed to furnish bail bond in the sum of Rs.25,000/ with one surety each in the like amount in terms of Section 437A CrPC.
22. After compliance, file be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN)
On 29th April, 2019. ASJ02 (South)
Saket / New Delhi
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