Delhi District Court
State vs . 1. Naveen, on 4 September, 2020
FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 IN THE COURT OF SHRI MOHINDER VIRAT: ADDL. SESSIONS JUDGE03 & SPECIAL JUDGE (COMPANIES ACT) : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Reg. No. SC/440617/2016 Unique Case ID No. DLSW010000582012 State Vs. 1. Naveen, S/o Sh. Dev Raj, R/o H.No.WZ25 D, Palam Village, New Delhi. FIR No. : 323/2011 Police Station : Dwarka South Under Sections : 307 IPC Date of committal to Sessions Court : 01.08.2012 Date on which final arguments heard: 11.08.2020 Date on which Judgment pronounced : 04.09.2020 JUDGMENT
1. In nutshell, the case of prosecution, as mentioned in the charge sheet, is that on 23.11.2011 on receipt of DD No.3, ASI Shiv Naresh went to Muthoot ground, where he came to know that injured had been shifted to Ayushman hospital. Thereafter, he went to Ayushman hospital where he obtained the MLC No.2330/11 of injured/complainant Amit Sharma from the doctor concerned wherein the doctor had opined six injuries caused with sharp weapon. On receipt of DD No.6, ASI Shiv Naresh reached at Appolo Hospital where the injured/complainant Amit Sharma was found admitted and he got recorded his statement, wherein he stated that he is running his own business at Gurgaon, Haryana and on 23.11.2011, at about 10:00 pm, he alongwith his friends namely Kuldeep, Ravi and Vinay had gone to attend a State Vs.Naveen Page 1 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 marriage function at Muthoot Park, Sector10, Dwarka but at about 12.30 am, when he alongwith his friends had started eating food, then one Naveen Sehrawat, who was earlier known to his friends, came there alongwith his three friends and sat on a table next to them and started abusing his own friends. However, when complainant and his friends asked Naveen not to abuse his friends, then Naveen went away from there in anger and again came there after half an hour and assaulted him with knife several times and fled away from there. Thereafter, the friends of complainant took him to the hospital in injured condition.
On the basis of above statement of the complainant, ASI Shiv Naresh prepared rukka and got the FIR registered u/s 307 IPC. During investigation, ASI Shiv Naresh prepared the site plan at the instance of Kuldeep Singh. On 29.11.2011, accused Naveen Sehrawat was arrested, his personal search was carried out and his disclosure statement was recorded. Efforts were made to recover the weapon of offence but the same could not be found. The clothes worn by accused at the time of incident were seized by the Investigating Officer. One Honda City car bearing No.DL3CAK0783 was got recovered at the instance of accused Naveen from C4F 289, Janakpuri and was also seized. The case properties were then deposited in Malkhana. The result on MLC of injured was obtained from Ayushman hospital from the doctor concerned which was opined as simple blunt/sharp. All the exhibits were sent to FSL for examination and later on FSL result was also obtained.
Further, statements of witnesses u/s 161 CrPC were recorded and after completion of investigation, chargesheet was filed before the Court of Ld. M.M.
2. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions in terms of Section 209 CrPC.
State Vs.Naveen Page 2 of 20FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020
3. After hearing arguments on the point of charge, vide order dated 16.10.2012, charge for offence punishable u/s 307 IPC was framed against accused Naveen to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined 16 witnesses namely PW1 ASI Azad Singh, PW2 ASI Shiv Naresh Mishra, PW3 Dr.Manoj Kumar, PW4 Dr.K.K.Pandey, PW5 Amit Sharma, PW6 Kuldeep Singh, PW7 Ravi Sharma, PW8 Constable Sharvan, PW9 ASI Birbhan Singh, PW10 Constable Satyapal Singh, PW11 Constable Mukesh Kumar, PW12 Constable Satya Narayan, PW13 Inspector Deepak Kumar, PW14 Ms. Seema Nain, PW15 ASI Virender Singh and PW16 HC Vijay Singh during trial.
5. Thereafter, statement U/s 313 CrPC of accused was recorded, during which all the incriminating evidence which came on record, was put to him. He denied the same and claimed that he is innocent and has been falsely implicated in this case. Accused opted to lead evidence towards his defence. However, lateron accused submitted that he does not want to examine any witness in his defence.
6. Additional statement U/s 313 CrPC of accused was recorded wherein he opted not to lead any defence evidence.
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under:
8. PW1 ASI Azad Singh who is the Duty Officer has deposed that on 24.11.2011 he was working as Duty Officer from 12:00 midnight to 8:00 am. On that day, Ct.Satpal (PW10) handed over to him rukka on the basis of which he had registered the FIR in question. He made endorsement on rukka Ex.PW1/A. He had proved the photocopy of FIR as Ex.PW1/B. State Vs.Naveen Page 3 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020
9. PW2 ASI Shiv Naresh Mishra has deposed that on 24.11.2011, he was on emergency duty from 8:00 pm to 8:00 am and at about 1:00 am, on receipt of DD no. 3, he reached at Muthoot ground, Sector10, Dwarka, where he came to know that injured had been shifted to Ayushman hospital. Thereafter, he alongwith Ct.Satpal (PW10) went to Ayushman hospital and it was informed that injured had been shifted to some other hospital. On receipt of DD no.6 regarding admission of injured at Apollo hospital, they went to Apollo hospital, where he recorded the statement of injured Amit Sharma Ex.PW2/A and prepared rukka Ex.PW2/B and got the FIR registered through Ct.Satpal. He seized the sealed pulanda handed over by the doctor vide seizure memo Ex.PW2/C. He prepared site plan Ex.PW2/D at the instance of Kuldeep (PW6) and recorded statement of witnesses.
10. PW3 Dr. Manoj Kumar has deposed that on 24.11.2011, he was working in Ayushman Hospital, Sector12, Dwarka and at about 12:45 am, he examined one patient namely Amit Sharma who was brought by Ravi Sharma with alleged history of assault followed by injury over face and left side of the chest and thereafter he prepared MLC Ex.PW3/A and subsequently, Dr. Shailender Jain had given further treatment to the patient and opined the nature of injuries to be simple blunt/sharp.
11. PW4 Dr.K.K.Pandey has deposed that the discharge summary of patient Amit Sharma was prepared by him and one Dr. I.P.Singh. He further deposed that on 24.11.2011, on local examination of the patient Amit Sharma, stab injury on the left side of the chest was found upon which they operated the patient on the same day and the patient was discharged on 29.11.2011 vide discharge summary Ex.PW4/A.
12. PW5 Sh.Amit Sharma is the complainant/victim in the present case. He deposed that he is running his own business at Gurgaon, Haryana State Vs.Naveen Page 4 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 and on 23.11.2011, at about 10:00 pm, he alongwith his friends namely Kuldeep (PW6), Ravi (PW7) and Vinay had gone to attend a marriage function at Muthoot Park, Sector10, Dwarka, New Delhi. He further deposed that at about 12.0012.30 am, he alongwith his friends had taken a table for dinner and at the same time, accused Naveen came there alongwith his friends and started abusing his friend Vinay. When he objected and asked accused Naveen not to abuse, then accused left the spot and again came back after about 2530 minutes and attacked on him 45 times with a knife and thereafter, accused fled away from the spot. He was shifted to Ayushman hospital by his friends and lateron was taken to Appolo hospital where police recorded his statement Ex.PW5/A. PW1 further deposed that his clothes, which he was wearing at the time of incident, were taken by the doctor. Further, he identified his clothes i.e. one blood stained jeans pant with belt, one blood stained upper jacket of green colour, one blood stained underwear, one pair of socks and one blood stained banyan as Ex.P1 collectively.
13. PW6 Kuldeep Singh and PW7 Ravi Sharma Both these witnesses were the friends of injured Amit Sharma (PW5) who were present on the alleged day of incident. It was deposed by them that on 23.11.2011, they alongwith their friends namely Amit and Vinay had gone to Muthoot Ground, Sector10, Dwarka to attend a marriage function and at about 12:00 12:30 am, when they were taking dinner while sitting around a table, accused Naveen alongwith his friend came there and started abusing each other. Thereafter, accused Naveen started abusing their friend Vinay and when they and Amit Sharma objected, accused become furious and left the spot. They further deposed that after half an hour, accused Naveen again came back at spot and gave knife blows to Amit Sharma due to which Amit Sharma sustained injuries and became unconscious and thereafter they took Amit State Vs.Naveen Page 5 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 Sharma to Ayushman Hospital, from where he was referred him to Apollo hospital as his condition was critical. PW6 further deposed that on 24.11.2011, police recorded his statement and thereafter accused was arrested by the police and pointing out memo of the spot Ex.PW6/A was prepared at the instance of accused and disclosure statement Ex.PW6/B of accused was also recorded by the police. PW6 further deposed that accused got recovered one Honda City Car bearing registration No. DL3CAK0783 from Janakpuri and accused also got recovered his clothes i.e. lemon colour Tshirt, one black colour Jacket and one blue colour jeans, which were worn by him at the time of incident, from a house situated in Janakpuri and the said clothes were seized by police vide seizure memo Ex.PW6/C.
14. PW8 Constable Sharvan deposed that on 24.11.2011, he was posted at PP Dwarka, Sector10 at PS Dwarka South and at about 1:00 am, he received call from G50 that friend of caller, calling from number 9810100974, had received knife injuries at Muthoot ground, Sector10, Dwarka and thereafter, he recorded the said information vide DD no.3 (Ex.PW8/A) and made relevant entry in the register at serial no.3 vide Ex.PW8/B. He further deposed that at about 1:10 am, he received an information that Amit Sharma was admitted in Ayushman hospital and he recorded the said information vide DD no. 4 (Ex.PW8/C) and also made relevant entry at serial no. 4 vide Ex.PW8/D. PW8 further deposed that at about 2:30 am, he received information from duty Constable at Apollo hospital that injured Amit was admitted in said hospital and he recorded the said information vide Ex.PW8/E and made relevant entry vide Ex.PW8/F.
15. PW9 ASI Birbhan Singh deposed that on 24.11.2011, he was posted in PCR, Dwarka South Zone as Head Constable and his duty was on Z81 and at about 12:0012:30 am, on receipt of call regarding quarrel, he State Vs.Naveen Page 6 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 alongwith his staff reached at Muthoot ground in the area of Dwarka South, where one person namely Amit Sharma was found lying in injured condition and they got him admitted in Ayushman hospital.
16. PW10 Ct. Satyapal Singh deposed that on 24.11.2011, he alongwith ASI Shiv Naresh (PW2) went to Muthoot Ground, Sector10, Dwarka, and it was informed that the injured had been shifted to Ayushman hospital by the PCR officials. He further deposed on the identical lines with regard to relevant investigation carried out on 24.11.2011, as deposed by PW2 ASI Shiv Naresh. He testified that PW2 recorded the statement of injured Amit Sharma and prepared rukka on the basis of which he got registered the FIR of present case and further deposed that PW2 seized the blood gauge vide memo Ex.PW10/A.
17. PW11 Ct. Mukesh Kumar deposed that on 28.12.2011, he had deposited the exhibits of present case to FSL, Rohini and handed over the receipt to the MHC(M).
18. PW12 Ct. Satya Narayan deposed that on 29.11.2011, at about 12:40 pm, accused Naveen had surrendered before the Incharge, Police Post and his disclosure statement was recorded and thereafter, accused was arrested and personally searched vide memos Ex.PW12/A and Ex.PW12/B respectively and during PC remand, accused had disclosed that he had thrown the weapon of offence i.e. knife in the ganda nala (drain), Kakrola and thereupon his supplementary disclosure statement Ex.PW12/C was recorded. He further deposed that accused pointed out the place of commission of crime and pointing out memo Ex.PW6/A was prepared. He further deposed that thereafter, accused got recovered his clothes i.e. one lemon colour Tshirt, black colour jacket and blue colour jeans and one Honda City car bearing registration No.DL3CAK0783 from C4F/289, Janakpuri and the same were State Vs.Naveen Page 7 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 seized by the Investigating Officer vide memos Ex.PW6/C and Ex.PW12/D respectively. Further, PW12 identified the aforesaid seized clothes of accused vide Ex.P2 collectively.
19. PW13 Inspector Deepak Kumar deposed that on 26.11.2011, the investigation of present case was entrusted to him whereupon he raided the house of accused i.e. WZ25D, Palam Village and his parents informed that accused is residing at unknown place. PW13 further deposed that on 29.03.2011, accused had surrendered before him at Police Post, Dwarka Court and thereafter he was interrogated and arrested. He further deposed that during investigation eye witness Kuldeep Yadav identified the accused as culprit and during PC remand, accused led the police party to Kakrola drain but the weapon of offence could not be found. PW13 further deposed that another disclosure statement of accused was recorded and thereafter, accused led the police party to C4F289, Janakpuri from where he got recovered his clothes worn at the time of incident and the said clothes were seized vide memo Ex.PW6/C. He further deposed that accused also got recovered one Honda City car bearing registration No.DL3CAK0783 used by accused during commission of offence and the said car was taken into possession vide memo Ex.PW12/D. He further deposed that on 28.12.2011 seized clothes of injured and accused were sent to FSL for examination and thereafter chargesheet was prepared and filed before the Court concerned. During trial PW13 identified aforesaid seized clothes as Ex.P2 (colly.) and also identified the photographs of aforesaid seized car vide Ex.PW13/3 (colly.)
20. PW14 Ms. Seema Nain was the Assistant Director (Biology), FSL who deposed that on 28.12.2011, she examined the three sealed parcels which were received in the office of FSL and prepared detailed report Ex.PW14/1 and Ex.PW14/2.
State Vs.Naveen Page 8 of 20FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020
21. PW15 ASI Virender Singh deposed that on 24.11.2011, he was discharging his duty as MHC(M) at PS Dwarka South and on that day, ASI Shiv Naresh deposited in Malkhana 2 sealed parcels alongwith sample seal of Apollo hospital vide entry no. 1279 in register no.19 as Ex.PW15/1. He further deposed that on 30.11.2011, SI Deepak Kumar deposited in Malkhana one sealed parcel and one Honda City car bearing No.DL3CAK0783 vide entry no. 1285 as Ex.PW15/2.
22. PW16 HC Vijay Singh deposed that on 24.11.2011, ASI Shiv Naresh deposited in Malkhana a sealed parcel containing blood stained clothes of injured Amit and blood exhibits vide entries no.1279 and 1285 as Ex.PW16/1 and Ex.PW16/2. He further deposed that on 28.12.2011, the blood gauge and sealed pulanda containing clothes of accused and injured alongwith sample seal were sent to FSL, Rohini vide RC No.76/21/11 Ex.PW16/3.
ARGUMENTS ADVANCED AND CASE LAW CITED
23. While opening the arguments, Ld. Addl. PP for the State has submitted that all the public witnesses examined during trial, have fully supported the case of prosecution on all material points and accused could not impeach their testimony during cross examination. Hence, the prosecution has been able to establish its case against him beyond reasonable doubt. It is further contended by ld. Addl.PP that the complainant/PW5 Amit Sharma has categorically proved the incident and the role of the accused being the assailant, who had given him various knife injuries. The said factum has also been corroborated by two eye witnesses i.e. PW6 Kuldeep Singh and PW7 Ravi Sharma, who have also supported the version of the complainant and also proved the fact that they had taken the complainant to Ayushman hospital and then to Appolo hospital for treatment. He further submitted that State Vs.Naveen Page 9 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 the medical evidence in respect of the MLC of the victim also proved the fact that he was assaulted with a sharp object and he remained hospitalized for about five days in Appolo hospital where he was also operated. He also submitted that there is no lacuna in the investigation.
24. Per contra, ld. defence counsel vehemently argued that prosecution has not been able to establish charge against the accused in this case. He contended that the story of the prosecution is totally false and case has been manipulated and framed by the complainant in collusion with police and doctors concerned. He submitted that there are material contradictions appearing in the testimonies of witnesses examined during trial and the important/relevant material witnesses have not been examined by the prosecution in order to withheld the relevant and material evidence from the Court, which is fatal for the prosecution story. He also assailed the case of prosecution by submitting that no independent witness had joined during proceedings despite their availability at or near the spot. It is further contended by him that the medical evidence does not support the case of prosecution and there is no scientific or independent evidence which could corroborated the statement of injured and other interested witnesses who were the friends of the injured. It is further contended by him that the conduct of the injured and his friends is suspicious and they might have involved the accused in the present case intentionally.
25. I have considered the rival contentions of both the counsels. I have perused the record of the case minutely.
26. It is the case of the prosecution that injured/PW5 Amit Sharma was assaulted by the accused Naveen in a marriage function and thereafter, he ran away from the spot. Admittedly, the weapon of offence has not been recovered in the case. Furthermore, during the investigation, Investigating State Vs.Naveen Page 10 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 Officer has seized the clothes of accused, which he was alleged to be wearing at the time of incident and same were sent to FSL. As per the FSL report Ex.PW14/1, no blood was detected on the clothes which were stated to be of accused and were seized during the investigation of the present case. It is worthwhile to observe here that there is no independent eye witness present in the said function who could ascertain the incident in question or to the fact that any such incident had happened over there in the said function. It is also an admitted position that no CCTV footage/videography/photograph of the marriage function was taken on record by the Investigating Officer. In the light of these facts, the testimony of injured and his friends, stated to be eye witnesses, needs to be appreciated very cautiously as held by the Hon'ble Apex Courts in catena of its judgments.
27. At the foremost, it is found that after the incident, when the call was made to the police, which is recorded in DD No.3, dated 24.11.2014, Ex.PW8/A, PCR official PW9 ASI Birbhan reached at the spot, where he found PW5 Amit Sharma, lying in injured condition. He stated that he had taken the injured to the Ayushman hospital but during the crossexamination of present witness, it is admitted by him that he did not find any person other than injured Amit Sharma at the spot. Also injured/PW5 Amit Sharma and his friends PW6 Kuldeep and PW7 Ravi had stated that injured/PW5 was taken to Ayushman hospital by PW6 and PW7 in the Fortuner car of PW5. The said factum of taking the injured to the Ayushman hospital by PW9 is contradictory with the statements of PW5, PW6 and PW7 and it creates doubt as to how the injured had reached Ayushman hospital.
28. Furthermore, in the testimony of PW6 and PW7 it is mentioned that the rear seat of Fortuner car, where the injured was lying while going to the hospital, got blood stained. However, neither the Investigating Officer State Vs.Naveen Page 11 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 seized the said Fortuner car nor photographs of the blood stained rear seat of the car were taken nor any exhibits were lifted from said car. It is worthwhile to observe here that none of the clothes of PW6 and PW7 were seized by the Investigating Officer which could have any blood stains of PW5/injured and could have appeared on them while transporting the injured to the hospital in the said car. Thus, it creates doubt as to how the injured was taken to the hospital in the light of testimony of PW9 as well as PW5, PW6 and PW7.
29. PW5, injured Amit Sharma had stated in his testimony that he had received various knife blows on his face and chest and he was initially taken to Ayushman hospital and thereafter, he was taken to Apollo hospital by PW6 and PW7. However, during the crossexamination, PW5 stated that he refused the treatment at Ayushman hospital as there was no senior doctor in said hospital at that time and further that he was referred to Apollo hospital by the doctor of Ayushman hospital after giving him first aid. PW6 had stated in his crossexamination that injured was not admitted in the Ayushman hospital as doctor refused to admit him over there. Further, PW7 stated that PW5 was referred to Apollo hospital as his condition was critical. Whereas, in the MLC Ex.PW3/A of the injured, it is written by doctor that patient/attendant refused for treatment and took the injured to other hospital. Thus, the statements of PW5, PW6 and PW7 stands vitiated in the light of the noting done by the doctor on MLC Ex.PW3/A that the patient was referred to Apollo hospital or that there was no senior doctor at Ayushman hospital at that time.
30. It is the case of the prosecution that from Ayushman hospital, the injured PW5 was taken to Apollo hospital, Sarita Vihar, Delhi. However, no substantial explanation has come on record as to why the injured was taken from Ayushman hospital at Dwarka to Apollo hospital at Sarita Vihar, Delhi leaving all the other major hospital on the way. The contention of ld. Defence State Vs.Naveen Page 12 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 counsel that the injured PW5 was taken to Apollo hospital situated at the other end of Delhi from Dwarka is only to create an evidence as the doctor at Apollo hospital could have been known to them, is worth consideration as no prudent man would leave all the major hospitals in the way to go to a specific hospital without any specific purpose or genuine explanation.
31. PW5, PW6 and PW7 have stated that accused had inflicted knife blow injuries on PW5. However, nature of injury mentioned in MLC Ex.PW3/A, is shown as simple, blunt/sharp. It is not clarified as to how the injury came to be simple/blunt when the case of the prosecution is that PW5 was assaulted by accused with knife. The statements of PW5, PW6 and PW7 regarding the explanation given by them of not getting treatment at Ayushman hospital and further the referring of injured to Apollo hospital, Sarita Vihar, is completely against the documentary evidence i.e. Ex.PW3/A MLC of injured, which creates doubt on the version of the injured and his friends i.e. PW6 and PW7.
32. Admittedly, the incident happened in the marriage function where the videography was also being conducted and PW6 and PW7 have stated that there was blood at the spot where the incident had happened. However, the first Investigating Officer of the present case i.e. PW2 ASI Shiv Naresh, had not picked any exhibits from the spot or even photographs of the spot were not got clicked by him. It is pertinent to mention here that during the whole investigation, no evidence either in documentary or independent oral testimony or in the form of videography/photographs, etc., came on record that there was any function at the site where the incident had happened. In the light of the said fact, the contention of ld. Defence counsel that injured was assaulted at some other place is quite probable.
33. A cojoint reading of the testimonies of PW5, PW6 and PW7, State Vs.Naveen Page 13 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 brings out lot of contradictions interse between them. PW5 Sh. Amit, the complainant has stated in his examinationinchief that accused came in the function alongwith his friends and he started abusing his friend Vinay and when he objected and asked him not to abuse, thereafter accused left the spot and came back after about 2530 minutes and attacked him with knife. A bare perusal of the first statement Ex.PW5/A given by the complainant to the police, (on the basis of which FIR in question was registered), reveals that the complainant has modified the entire incident in question as in the statement Ex.PW5/A, it is specifically stated by him that accused Naveen came alongwith his friends and started abusing his own friends, whereupon when the complainant and his friends objected for the same, then accused left away from the spot.
Thus, the entire factum of abusing the friend of complainant i.e. Vinay is entirely missing in Ex.PW5/A for which he was also rightly confronted by ld. defence counsel in his cross examination. Similarly, to the lines of above fact, PW6 had tried to cover up by saying in his examination inchief that initially the accused and his friends started abusing each other and then accused started abusing his friend Vinay whereas the factum of abusing Vinay is nowhere in his statement recorded under Section 161 CrPC as evident when he was also confronted from his statement under Section 161 CrPC Ex.PW6/D1 by the learned defence counsel regarding this fact. Similar is the case of PW7 as he also improved his version by introducing the fact of accused starting abusing Vinay whereas it is not mentioned in his statement under Section 161 CrPC for which he was also confronted by learned defence counsel with his statement under Section 161 CrPC vide Ex.PW7/X1. Thus, the entire basis of initiation of the incident as well as abusing Vinay comes into doubt as the same is never mentioned in the complaint Ex.PW5/1 or State Vs.Naveen Page 14 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 statement under Section 161 CrPC of the witnesses as noted above.
34. PW5 has categorically stated that he was not known to accused Naveen Sehrawat prior to the incident. Whereas, PW7 has stated during his crossexamination that accused Naveen Sehrawat was known to all of them prior to the incident. Thus, it is clear that the identity of the accused Naveen Sehrawat was known to PW5, PW6 and PW7 and the stand of PW5 that he was not aware about accused Naveen prior to the incident, got falsified by PW7.
35. Now, the role of Vinay who is pivotal to the entire case of prosecution is to be considered. Perusal of the record shows that the person namely Vinay never came into picture in the incident in question or during entire investigation of alleged incident. However, the testimonies of PW5, PW6 and Pw7 makes out the case which started from abusing of their friend Vinay, who strangely never comes into picture or was never interrogated by the Investigating Officer or never came in the witness box as prosecution witness.
Infact, the whole chargesheet is completely silent about the presence of witness Vinay at the time of incident or thereafter. It is very strange that the said witness remained with the complainant and PW6 & PW7 at the time of incident, however, after the incident the presence of said Vinay to the other proceedings i.e. taking away the complainant to Ayushman Hospital or to Apollo Hospital or participating in the investigation, is not shown anywhere. It is very strange that the said Vinay who allegedly accompanied the complainant and his friends to the function and to whom the initial abuses by Naveen were given has left his friend in lurch after the assault. It is further very strange that he never came into picture during the entire investigation.
State Vs.Naveen Page 15 of 20FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 Thus, the presence of said witness at the spot is very doubtful and the very basis of prosecution case that it were the abuses given to their friend Vinay due to which incident started, creates a doubt in the manner in which the incident had happened.
36. Furthermore, PW6 has stated that it was Ravi (PW7) who was driving the Fortuner Car and he (PW6) was sitting alongwith injured Amit (PW5) at the rear seat of the car. Whereas, PW7 Sh. Ravi has stated that it was PW6 (Kuldeep) who was driving the car and he was sitting at the rear seat with injured Amit (PW5). It is very strange that even a simple fact was not categorically proved by PW6 and PW7 as to who was driving the car.
37. It is the case of defence that there was an altercation between accused and PW6 Kuldeep prior to the incident for which he threatened to get him implicated in a false case. Right through the whole cross examination of material prosecution witnesses, the said fact was put to all the said witnesses which though they had denied but in the light of the fact that the defence from the beginning projected an altercation between PW6 and accused Naveen cannot be overlooked simply because there is a denial to the said suggestion by the prosecution witnesses. The said plea cannot be overlooked simplicitor as there are material contradictions in the statements of PW5, PW6 and PW7 and introduction of new person i.e. Vinay. Further, in the statement under Section 313 CrPC, the accused also relied upon the said fact that there was an altercation between him and PW6 and PW6 had threatened him that he would implicate him in a false case. Thus, the defence of the accused cannot be thrown out in the light of the material contradictions/improvements in the testimonies of PW5, PW6 and PW7 and absence of any scientific or corroborative evidence against the accused.
38. It is also pertinent to mention here that as per the witnesses of the State Vs.Naveen Page 16 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 prosecution the weapon of offence in question was dropped at the site of the incident, however as per the disclosure statement alleged to be made by accused, it has been mentioned that it was ganda nala (drain), Kakrola.
39. It has also come on record that PW5 i.e. complainant/victim Amit Sharma is also having criminal case pending against him and PW6 also admitted that one criminal case is also pending against him in PS Sector9, Dwarka. The defence has also put the suggestion to PW5 that he sustained injuries by someone with whom he was having litigation and enmity for which he obviously denied the same and the said fact also put to PW6 and PW7. Since the complainant i.e. PW5 Sh, Amit and PW6 Sh. Kuldeep were having criminal cases pending against them, as such the possibility of the said assertion of the defence cannot be ruled out.
40. In case law reported as Sadhu Singh v/s State of Punjab, 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
41. It is settled law that adverse inference can be drawn when no independent eye witness, though available, was examined and even an explanation was not furnished for this omission. This omission assumes more significance when the testimony of alleged eye witness (complainant in this case) is inconsistent and full of doubts, as discussed above. In such circumstances, without independent corroboration, it would not be safe to act on the testimony of sole eye witness to punish the accused. Reliance can be placed on the decision given by the Supreme Court of India in the case of State Vs.Naveen Page 17 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 "Hem Raj & Others Vs. State of Haryana", (2005) 10 SCC 614 wherein it is held as under: "9. Nonexamination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in "Takhaji Hiraji Vs. Thakore Kubersing Chamansingh", 1 (2001) 6 SCC 145 (SCC p. 155, para19) "[I]f already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of nonexamination of other witnesses."
42. It is settled proposition of law that if the only eye witness makes material improvements before the Court in order to make the evidence acceptable, the Court would be justified in not placing reliance on such witness. The following observation of the Supreme Court of India in the decision of "A. Shankar Vs. State of Kanataka" Crl. Appeal No. 1006 of 2007, date of decision 09.06.2011, are worth to be reproduced here:
"17. In all criminal cases, normal discrepancies are bound to occur in the deposition of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in State Vs.Naveen Page 18 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions."
The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
43. Having regard to the totality of the circumstances as proved by the prosecution during trial, certain questions are left unanswered i.e. how the victim Amit was taken to hospital i.e. either by PW6 and PW7 in Fortuner Car or by PW9 ASI Bir Bhan in PCR Van? what was the requirement of taking injured PW5 from Ayushman Hospital, Dwarka to Apollo Hospital, Sarita Vihar i.e. at the other end of Delhi leaving all the hospitals in the way? the reasons given by PW5, PW6 & PW7 of going from Ayushman Hospital to Apollo Hospital which is not confirming/supported with record of Ayushman Hospital i.e. MLC Ex.PW3/A; why the exhibits were not lifted from the Fortuner Car or from the spot? why the photographs/videography/other oral evidence of any witness who was present at the function (to prove any kind of alteration happened in the function), was not collected? material contradiction in the testimonies of PW5, PW6 and PW7; how Vinay came into picture in the incident when he was not shown at any point of time as concerned with the incident during the investigation by the Investigating Officer? nonfinding State Vs.Naveen Page 19 of 20 FIR No.323/2011; U/s 307 IPC; P.S. Dwarka South D.O.D.: 04.09.2020 of blood on the clothes of accused in FSL test reports; non recovery of weapon of offence and absence of any scientific or corroborative evidence against him. These material unanswered questions brought the case of prosecution in doubt. Thus, the testimonies of PW5, PW6 and PW7, which are the sole material against the accused, do not inspire confidence of this Court to bring the guilt of the accused beyond reasonable doubt.
44. In the light of aforesaid discussion, Court is of the considered view that the prosecution has failed to establish the charges levelled against accused Naveen beyond reasonable doubt. Consequently, said accused is acquitted of the charges levelled against him by giving him benefit of doubt. File be consigned to Records after compliance of Section 437A Cr.P.C.
Digitally signed by MOHINDER MOHINDER VIRAT VIRAT Announced in open Court today Date: 2020.09.04 16:44:35 +0530 on 04.09.2020 (Mohinder Virat) ASJ3 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi State Vs.Naveen Page 20 of 20