Delhi District Court
State vs . Anil Bhardwaj on 11 July, 2012
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI.
(Sessions Case No. 102/09)
Unique ID case No. 02404R0110042008
State Vs. Anil Bhardwaj
FIR No. : 185/07
U/s : 307 IPC
P.S. : Adarsh Nagar
State Vs. Anil Bhardwaj @ Kala
S/o Late Sh. Megh Raj
R/o C43, Nehru Road,
Adarsh Nagar, Delhi.
Date of institution of case 23.02.2008
Date on which, judgment has been reserved11.07.2012
Date of pronouncement of judgment 11.07.2012
JUDGMENT:
1 The case of the prosecution, as briefly stated in the charge sheet, is that on 28.03.2007 at 11:52 PM information was received at PS Adarsh Nagar which was reduced to writing vide DD No.59D wherein it was stated that one person had informed from phone No.9810729207 that Badmash had given a blow with bottle on stomach of S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 1/ 10 2 the informant at Adarsh Nagar, Indra Nagar (Mere peth mai badmash ne bottle mar di). The said DD No.59 D was handed over to ASI Gopi Ram for investigation, who proceeded to the place of occurrence along with Ct. Ram Karan. At the spot injured was stated to have been taken to hospital. In the meantime, DD No.60B dated 29.03.2007 was also received from which ASI Gopi Ram came to know that injured Moti Lal Gupta s/o Radhey Shyam had been admitted in Pentamed Hospital with history of injury with glass bottle. Accordingly, ASI Gopi Ram proceeded to Pentamed Hospital, where injured Moti Lal was found admitted vide MLC No.345/07 whereupon the doctor opined injured to be "unfit for statement". However, despite the said opinion given by doctor, ASI Gopi Ram made inquiries from the injured, who told him that he had been given a blow with a broken bottle by Anil Bhardwaj @ Kala. Thereafter injured is stated to have been taken for operation by the doctor. ASI Gopi Ram prepared a rukka on DD No.59D and got a case u/s.307 IPC registered against the accused. After completion of investigations, charge sheet was prepared and filed in the Court. 2 Upon committal of this case to the court of Sessions, charge for the offence under Sections 307 IPC was framed against the accused Anil Bhardwaj. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3 In order to prove its case, prosecution has examined 8 witnesses, out of which PW5 Krishan Haldar, PW6 Anil Aggarwal and PW7 Sumit Gupta are material public witnesses, all of whom have failed to support the prosecution case. The injured Moti Lal Gupta himself is reported to have expired on 27.09.2011. The remaining S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 2/ 10 3 witnesses i.e. PW1 HC Shivdhan, PW2 HC Ram Karan, PW3 HC Ashok and PW4 HC Mukesh Kumar are formal witnesses being witnesses to post incident investigations carried out in the case while PW8 SI Ram Kanwar Dahiya is the second IO, who had carried out investigations after 10.04.2007 and filed the charge sheet in the present case. Considering that all the material public witnesses failed to support the prosecution case as regards the incident and the identity of the accused, no fruitful purpose would have been served by examining the remaining witnesses, who too were witnesses to post incident investigations and proceedings, hence, PE was closed. 4 Statement of accused was not recorded as nothing incriminating has come on record against the accused.
5 Arguments have been put forward by Ld. Addl. PP for State and Ld. defence counsel for the accused.
6 Learned Additional PP has contended that prosecution has succeeded in proving its case against the accused beyond reasonable doubt despite the fact that complainant has expired. He also contends that the guilt of accused stand proved beyond reasonable doubt.
7 Learned counsel for the accused on the other hand has contended that there are several discrepancies in the testimony of the witnesses and that in their respective testimony PW6 Sh. Anil Aggarwal and PW7 Sh. Sumit Gupta have given a different version than that put forth in by the prosecution. It is further contended that S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 3/ 10 4 since material prosecution witness namely Sh. Moti Lal Gupta has not been examined, prosecution has failed to prove its case against the accused. It is accordingly, prayed that accused be acquitted of the charged offence.
8 Arguments heard. File perused.
9 In the present case, accused is alleged to have assaulted Sh. Moti Lal Gupta, injured with a broken glass bottle with such intention or knowledge and under such circumstances that if by that act he had caused death of Sh. Moti Lal Gupta, he would have been guilty of murder. As already observed hereinabove the injured was not produced for examination before the Court as he was reported to have expired on 27.09.2011. The FIR in the present case has been registered on the basis of DD No. 59B, which as per prosecution case was received at PS Adarsh Nagar, on information given by the injured himself. The incident in the present case is alleged to have occurred at about 11:50 PM on 28.03.2007 and information reduced to writing vide DD No.59B was apparently received at PS at about 11:52 PM and is thus the first information of incident received immediately after the incident. It is noteworthy that though DD No.59B was recorded upon information given by the injured Moti Lal Gupta himself, the injured has not given name of his assailant, even though accused Anil Bhardwaj was well known to him, and he only stated that he was given blow "by a badmash".
10 Further as per MLC No.345 of Pentamed Hospital, the injured Moti Lal Gupta was admitted in hospital on 29.03.2007 at 00.05 AM by his friend Sumit S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 4/ 10 5 Gupta. In the said MLC also the name of assailant has not been mentioned. As per the notings on the MLC, the patient was conscious and oriented and all his vital statistics, as detailed in MLC (now marked as "PX" for reference), were found stable. There was only one injury reflected from mark "PX" i.e. a laceration of 2 cm of 1 cm with depth present in left para umbical region of abdomen ( about 2 cm below and 2 cm left to umbilicus ) with no active bleeding / distention. The MLC also finds mentioned of smell of alcohol in the breath of the patient. Though there is an endorsement of "unfit for statement" on the MLC "PX", considering that the patient was conscious and oriented at the time of admission in the hospital, the fact that neither the date nor time of certification of being "unfit" has been given on MLC assumes great importance. It is also surprising that on the one hand the examining doctor opined the patient to be "unfit for statement", and on the other IO was permitted to inquire about the incident from the patient wherein the patient / injured Moti Lal Gupta is claimed to have revealed the name of his assailant as Anil Bhardwaj i.e. the accused.
11 There is nothing on record to show that the injured Moti Lal Gupta was taken for operation thereafter, as has been mentioned by IO in rukka. It, however, appears that Sh. Moti Lal Gupta was declared "fit for statement" on 30.03.2007 and thereafter his statement (s) were recorded u/s.161 CrPC. From record, it appears that there were five such statements of Sh. Moti Lal Gupta recorded on 30.03.2007, 20.04.2007, 01.05.2007, 31.05.2007 and 11.10.2007.
12 In his statement dated 30.03.2007, injured Moti Lal Gupta stated that an altercation had taken place between him and accused Anil Bhardwaj as injured had S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 5/ 10 6 called him "Bhai Kale" and after some time accused, who had drunk liquor, came with a broken glass bottle in his hand and gave a blow on stomach of injured stating "aaj tu nahi, tera kam tamam kar deta hu". After giving him blow, accused ran away from spot and injured was removed to hospital by persons present there. He also stated that he would hand over his clothes to the IO later.
13 Subsequently, injured handed over his clothes, which he was wearing at the time of incident to IO on 20.04.2007 and a supplementary statement of injured dated 20.04.2007 was recorded.
14 Another statement of injured Moti Lal Gupta was recorded u/s.161 CrPC on 01.05.2007 at the time of arrest of accused Anil Bhardwaj.
15 The next statement of injured Moti Lal Gupta u/s.161 CrPC was recorded on 31.05.2007 wherein he made considerable improvement over his statement u/s.161 CrPC dated 30.03.2007. He gave details of the function organized by PW6 Anil Aggarwal and further stated that he and accused Anil Bhardwaj were sitting on one table on different chairs and that he had asked accused Anil Bhardwaj @ Kala for formalities sake "Bhai Kale, kya hal hai" and that on hearing this, accused became angry and did not speak for some time. After having liquor in the party, he called injured Moti Lal Gupta on the road outside the park where an altercation ensued between them over word "Kala" and in the meantime, accused picked up a broken glass bottle lying near the gate and told injured that by repeatedly calling him by name "Kala", instead of his actual name, injured insulted him and he would finish him on that day and while saying so, S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 6/ 10 7 accused gave a blow with said broken glass bottle in the stomach of injured with intention to kill him and thereafter he ran away from the spot. Injured also stated that his driver Krishan Haldar, who was sitting in the car, had seen the entire incident and had immediately come to the spot and informed his family members. The injured was taken to Pentamed Hospital by Sumit Gupta, his son's friend.
16 The last statement of injured u/s.161 CrPC recorded on 11.10.2007 pertains to collection of his blood samples at BJRM Hospital.
17 From the statements of injured recorded on 30.03.2007 and 31.05.2007, as detailed hereinabove, it is seen that complainant has made several improvements in the later statement. Firstly, the place of incident has been shifted to inside the park where the function was being held to road outside the park. Secondly from the statement dated 30.03.2007, the incident appears to have been witnessed by several persons out of whom few took injured to hospital whereas in the statements dated 31.05.2007 name of one specific eye witness namely Krishan Haldar emerges and the name of person, who took injured to hospital, is also revealed. The incident itself has also been elaborated in minute details in the statement of injured recorded on 31.05.2007. 18 It is noteworthy that Sh. Krishan Haldar, driver of injured (now deceased), was examined as PW5. However, he has failed to support the prosecution case. He denies having witnessed the incident and claims that when he came out of the park where function was being held, to search for his employer, he found him lying outside the tent with injury on his stomach and immediately informed son of his employer and S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 7/ 10 8 subsequently family members of his employer Moti Lal Gupta came there and took him to hospital. He denied that Sh. Moti Lal Gupta was assaulted in his presence or that any altercation had taken place between accused and Sh. Moti Lal Gupta in his presence or that the witness i.e. PW5 had himself taken Sh. Moti Lal Gupta to hospital or that he had shown the place of the incident to the Police during investigations. 19 The other eye witness namely Sh. Anil Aggarwal, who was examined as PW6, also failed to support the prosecution case and denied that he had seen accused assaulting injured Moti Lal Gupta with a broken bottle. He also denied that any altercation had taken place between the injured Moti Lal Gupta and accused over address of accused by name of "Kala" by the injured.
20 The public witness Sh. Sumit Gupta, who is stated to have taken the injured to hospital, was examined as PW7. He deposed that he was told by Mannu, son of injured Moti Lal Gupta that his father had received injuries on his person in party organized by PW6 Anil Aggarwal and had thus accompanied him to the place of incident where he found Moti Lal Gupta lying in injured condition with a bleeding injury on his abdomen. He also stated that injured Moti Lal Gupta was under influence of alcohol. He denied that he had come to know that Sh. Moti Lal Gupta had been injured by accused Anil Bhardwaj after an altercation when injured addressed accused by name "Kala".
21 From the foregoing discussions of the evidence and documents placed on record by the prosecution, it is clearly brought out that there are material discrepancies, S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 8/ 10 9 modifications and improvements made by injured Moti Lal Gupta in his statements given to Police specially his statement dated 30.03.2007 and 31.05.2007. Even otherwise Sh. Moti Lal Gupta has not been examined to prove the incident as put forth by the prosecution. The remaining prosecution witnesses namely PW5 Krishan Haldar and PW6 Anil Aggarwal, who have been put forth as eye witnesses to the incident, have also failed to support the prosecution case. Sh. Sumit Gupta, who had taken the injured to hospital and is also claimed to be a hearsay witness of the incident denied having heard about the incident in the manner put forth by the prosecution. In these circumstances, the fact that DD No.59B, recorded at 11:52 PM, within two minutes of the incident, which had taken place at 11:50 PM and the history of assault mentioned on MLC do not find mentioned of the name of the assailant become very material considering that accused was admittedly well acquainted with and also known by name to the injured Moti Lal Gupta. The circumstances in which IO proceeded to make inquiries from the injured Moti Lal Gupta about the assailant, even though the injured was opined to be "unfit for statement" by the doctor, and the haste with which IO proceeded on the basis of DD No.59 B and his own inquiries to register a case against the accused instead of waiting for condition of injured to stabilize or to find out if there were any eye witnesses to the incident also casts a doubt about the prosecution case. 22 Thus, in view of the above discussions and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the charges u/s. 307 IPC against accused Anil Bhardwaj on record, beyond the reasonable doubts. Accordingly, I acquit accused - Anil Bhardwaj of the charged offences, giving him the benefit of doubt.
S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 9/ 10 10 File be consigned to the record room. (Announced in the open Court ) (Illa Rawat) (Today on 11.07.2012) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 10/ 10 11 FIR No.185/2007 P.S.Adarsh Nagar State Vs. Anil Bhardwaj 11.07.2012 Present: Addl. PP for the State. Accused Anil Bhardwaj on bail with proxy counsel.
PW6 Anil Aggarwal, PW7 Sumit Gupta and PW8 SI Ram Kanwar Dahiya, IO, are present. They are examined, crossexamined and discharged.
PW6 Anil Aggarwal and PW7 Sumit Gupta have failed to support the prosecution case. PW5 Krishan Haldar, who was examined on 09.05.2012 also failed to support the prosecution case. All public witnesses stand examined and they did not depose anything favourable for prosecution. Injured has already expired and no fruitful purpose would be served by examining remaining witnesses, who are either public witnesses or witness to post incident in investigations. Hence PE closed.
Matter be put up for SA/FA at 2:00 PM today itself.
(Illa Rawat)
Addl. Sessions Judge (NW)01
Rohini/Delhi
At 2:15 PM
Present: Addl. PP for the State.
Accused on bail with proxy counsel.
Now matter is listed for SA/FA. File perused. As there is no incriminating material on record, statement of accused against the accused is dispensed with.
S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 11/ 10
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Final arguments heard.
Be listed for judgment today i.e. on 11.07.2012 at 3:30 PM.
(Illa Rawat)
Addl. Sessions Judge (NW)01
Rohini/Delhi
At 3:30 PM
Present: Addl. PP for the State.
Accused on bail with proxy counsel.
Vide separate judgment, announced today in the open Court, accused - Anil Bhardwaj has been acquitted of the charged offence.
Accused - Anil Bhardwaj requests that his previously furnished bail bond may be accepted in compliance of Section 437A Cr.PC. Request allowed. Accordingly, previous bail bond of accused is extended for a period of six months from today in terms of Section 437A CrPC.
File be consigned to Record Room.
(Illa Rawat)
Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C No. 102/09 State vs. Anil Bhardwaj Page Nos. 12/ 10