IN THE COURT OF SH. SANJAY BANSAL: SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST: KARKARDOOMA COURTS: SHAHDARA: DELHI. Sessions Case No. 44457/2015 CNR No. DLNE01-000137-2014 STATE Versus (1) HIMANSHU S/o Rajender Singh R/o D-Block, Gali No. 2, Ambedkar Vihar, Johripur, Delhi-94. (2) NITIN S/o Surendra Singh R/o D-28, Gali No. 2, Ambedkar Vihar, Johripur, Delhi-94. (3) PARAS S/o Om Prakash R/o D-47, Gali No. 4, Aman Colony, Ambedkar Vihar, Johripur, Delhi-94. FIR No. : 352/2012 PS. : Karawal Nagar U/s. : 308/452/427/506/34 [ACT] Chargesheet Filed On : 21.07.2014 Date Of Allocation : 09.10.2014 Judgment Reserved On : 20.12.2017 Judgment Announced On : 20.12.2017 JUDGMENT:
1. On receiving DD No. 3A on 25.09.2012, SI [ENTITY] alongwith Ct. [ENTITY] reached the spot i.e. A-11, Gali No. 1, Ram Vihar, Johripur, Delhi where he found that injured had already been taken to hospital. He also found that there were some marks of bricks on the walls. He reached hospital and found one [ENTITY] lying admitted vide [CASE NUMBER]. He recorded statement of injured [ENTITY]. The said injured alleged that on 25.09.2012 at about 12:45 am, he was sleeping in the outer room of his house. At that time various bricks struck against door of the room. When he asked who were doing this, in the meantime one [ENTITY], [ENTITY], [ENTITY] and many unknown persons broke the door of the room and entered in it. Complainant alleged that all the persons were carrying [ENTITY]s, lathies and [ENTITY]s. He alleged that all the said persons gave threats to kill him and started beating him with those weapons. [ENTITY] hit on the head with [ENTITY] and [ENTITY] attacked with [ENTITY]. When he raised alarm, all of them fled away. He alleged that his gold chain also went missing. Someone called at 100 number. On these allegations, FIR was registered u/s [SECTION]
2. During investigation site plan was prepared. On 27.09.2012, accused [ENTITY] and [ENTITY] were arrested. They made disclosure statements confessing to their guilt. Accused [ENTITY] got recovered one [ENTITY] from his house. Accused [ENTITY] got recovered one [ENTITY] from his house. Accused [ENTITY] surrendered in the court and was arrested. Result of injuries was given as simple. After completion of investigation, chargesheet was filed u/s [SECTION]
3. After compliance of [SECTION] [ACT], learned MM committed the case to Court of Sessions as offence u/[SECTION] [ACT] was exclusively triable by it.
4. Vide order dated 05.11.2014, my learned Predecessor framed charges for offences u/[SECTION] [ACT], 457/34 [ACT], 458/34 [ACT] and 506/34 [ACT] against all the accused. Accused persons pleaded not guilty and claimed trial.
5. In order to prove the charges, the prosecution examined around 17 witnesses.
6. [ENTITY]ments of accused persons u/[SECTION] [ACT] were recorded. Accused persons examined 05 witness in defence.
7. Evidence led by the parties may now be discussed.
MATERIAL / INJURED / PUBLIC WITNESS(ES)
8. PW-1 is [ENTITY]. He is injured/complainant. He deposed on the lines of his allegations as made in the FIR. He deposed that on 25.09.2012 at about 12.45 a.m., while he was sleeping in the outer-room of his house, some bricks were hit at the door of his house. He had loudly asked as to who were throwing the bricks. He deposed that in the meantime, accused [ENTITY], [ENTITY] and [ENTITY] alongwith few other persons had entered in his room after forcibly opening the door by pushing the same. After entering in the room, accused persons gave threats to kill him. He deposed that accused [ENTITY] was armed with [ENTITY], accused [ENTITY] and [ENTITY] were armed with [ENTITY]. Other persons were also having [ENTITY]. He stated that accused persons started beating him with [ENTITY] and [ENTITY]. Accused [ENTITY] attacked on his head with [ENTITY] and accused [ENTITY] attacked on his legs with [ENTITY]. He raised alarm, on which accused persons had escaped from there. Someone had made the call to the police at 100 number.
9. He further deposed that PCR officials came to the spot and took him to GTB Hospital. He stated that SI [ENTITY] of police station Karawal Nagar met him in the hospital and recorded his statement which is Ex.PW1/A. He also pointed out the place of incident to IO and site plan was prepared on the next day which is Ex.PW1/B. He identified all the three accused. He also identified the [ENTITY] as Ex.P1 and [ENTITY] as Ex.P2. He also produced some photographs which were only marked as Mark P-1 to P-10.
10. In cross-examination, he stated that he was working as Conductor in Delhi Transport Corporation. He was on duty on 24.09.2012 and returned to his house at about 10:30 pm. It has come that there was no dispute or quarrel with any person while returning to his home nor there was any quarrel with any person or any threat from any person during the last one year. It has come that there are five rooms in his house. Two rooms are on the ground floor, two rooms are on the first floor and one room is on the second floor. It has also come that they are three brothers and two sisters. Total number of family members living in the said house was nine. He stated that other room on the ground floor is on the rear side of the room in which he was sleeping. His mother was sleeping in the said room, and his brothers and sisters were sleeping on the first and second floor of the house. He stated that his father was on duty at that time. His father was in U.P. Police. He stated that he had seen the accused persons throwing bricks at the door of his room through mesh (jali) of the door installed before the wooden door. However, he also stated that he had not told this fact to the police in his statement. He also told that at least two-three bricks hit the door of the room on the ground floor and two-three bricks hit the door at the first floor of the house. Total number of bricks were five-six bricks. The bricks found at the spot were in broken condition. He was unaware whether the bricks were seized by the IO or not. He stated that he had not raised alarm when accused persons were throwing bricks.
11. It has also come that none of his family members had woken up at the time of the incident. He stated that accused persons had entered into his room by breaking the mesh door and bolt of the mesh door. He did not know whether IO has seized the broken bolt or not or whether he had taken photographs or not. He told the size of the iron rod and the [ENTITY] as 3.5 to 4.0 ft. He could not tell whether his family members had woken up after hearing his alarm or not. Similar was his answer regarding neighbours. He denied that he had enmity with [ENTITY] and for this reason he had falsely implicated the accused persons. It has come that PW-1 himself did not make any call to 100 number. He explained that it was one [ENTITY].
12. He admitted that on 25.08.2012, he had moved an application to SHO, PS Karawal Nagar regarding some incident relating to complaint made against him by [ENTITY] and his friends, copy of which is Mark A. He denied that he had implicated the accused persons due to that enmity.
13. PW-2 is [ENTITY]. He is neighbour. He deposed that in the intervening night of 24.09.2012 and 25.09.2012, he was sleeping in his house. After 12.00 a.m., he woke up after hearing noises from the street. He came out and saw that few boys armed with sticks (dande) were fleeing from the street. He made a call at 100 number. Thereafter, PCR van reached there. He returned to his house.
14. This witness was cross-examined by learned Prosecutor. He admitted that the said boys were standing in front of house of [ENTITY] who was his neighbour. However, he denied the suggestion that the boys were giving abuses or pushing the door of the house of [ENTITY] i.e. father of PW-1. He denied the suggestion that the boys were giving abuses or pushing the door of his house. He was confronted with his previous statement Ex.PW2/A.
15. In cross-examination on behalf of accused persons, it has come that PCR officials had arrived at about 01:15 am and that he had made call after 12:30 am. PW-2 has not identified any other accused.
16. PW-3 is [ENTITY]. He is father of the injured. He had not seen the incident. He deposed about investigation conducted on 27.09.2012. He deposed that on that day IO alongwith staff came to his house. He informed them that accused [ENTITY] and [ENTITY] were present in their houses. He had taken the police to their houses at about 10.30 p.m. where [ENTITY] and [ENTITY] were present. Accused [ENTITY] was arrested vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B. Accused [ENTITY] was arrested vide arrest memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW3/D. He identified both these accused.
17. In cross-examination, it has come that he had received information about incident at about 03:00 am and he directly reached GTB Hospital at about 05:00 am. He could not tell the name of the said informant.
18. PW-14 is ASI [ENTITY]. He was the PCR official who had reached the spot after receiving PCR call. He deposed that he found one person in injured condition at the spot i.e. Gali No. 1, Ram Vihar. He told the name of the injured initially as [ENTITY] but later on corrected it as [ENTITY]. He deposed about taking the injured to GTB Hospital.
INVESTIGATION WITNESS(ES)
19. PW-15 is SI [ENTITY]. PW-7 is Ct. [ENTITY]. Both have deposed about arrest of accused [ENTITY] on 01.10.2012 when he had surrendered before the court. Arrest memo of accused [ENTITY] is Ex.PW7/A. His personal search was conducted vide memo Ex.PW7/B. He made disclosure statement Ex.PW7/C.
20. PW-13 is SI [ENTITY]. He is the main IO. He deposed about going to the spot after receiving DD No. 3A. Ct. [ENTITY] (PW-8) was with him. He deposed about going to the spot i.e. H.No. A-11, Gali No. 1, Karawal Nagar. He deposed that he found marks of hitting of bricks on the outer door of house facing the street. He found injured to have been taken to GTB Hospital and reached there and collected MLC of injured [ENTITY]. He deposed about recording his statement and made endorsement Ex.PW13/A and got registered the case. After receiving copy of FIR from Ct. [ENTITY], they again went to the spot. He met caller [ENTITY] and recorded his statement. He deposed about receiving information from father of the injured about discharge of the injured from the hospital. Thereafter, PW-13 went to the spot and prepared site plan Ex.PW1/B at instance of the injured.
21. He deposed that on 27.09.2012, he alongwith [ENTITY] (PW-11) reached house of injured where father of the injured met them and informed that [ENTITY] was again admitted in some private hospital. The father of injured i.e. PW-3 also informed him about presence of accused in their houses. Thereafter PW-13 alongwith PW-11 and PW-3 reached house of accused [ENTITY] and [ENTITY] and arrested them at instance of PW-3. He recorded their disclosure statements Ex.PW11/A and B. PW-13 deposed that accused [ENTITY] disclosed that he could get recovered [ENTITY] used in the offence from his house and led the police team to one room of his house on the ground floor and got recovered the said [ENTITY] which was kept behind the door of the room. He prepared parcel of [ENTITY] with seal of AK and seized the same vide memo Ex.PW11/D. PW-13 further deposed that accused [ENTITY] had also disclosed that he could get recovered the [ENTITY] from his house. Accused [ENTITY] led the police team to one room on the ground floor of his house and got recovered [ENTITY] which was kept under the bed. Parcel was prepared with seal of AK and [ENTITY] was seized vide memo Ex.PW11/C. Both the accused pointed out the place of incident vide memo Ex.PW11/E.
22. PW-13 also collected opinion about nature of injuries. He identified the accused persons and the case property.
23. In cross-examination, it has come that when he reached the spot, there were persons from the neighbourhood present at the said place. It has come that he did not meet any family member of the injured at the spot. It has come that he did not record statement of any such person at the spot. He explained that the family members told him in the hospital that they had woken up after hearing noises and they had not seen the incident. He also stated that he did not seize the bricks nor took the photographs of the marks of the bricks or of the broken latch of the door.
MEDICAL/EXPERT WITNESSES
24. PW-5 is Dr. [ENTITY]. He appeared on behalf of Dr. [ENTITY] who had medically examined the injured. Two injuries were noticed i.e. (1) Lacerations over right parietal region, both measuring 5 c.m. in length and (2) Laceration on left parietal region measuring 4 c.m. [CASE NUMBER] was prepared which is Ex.PW5/A. He identified handwriting and signature of Dr. [ENTITY].
25. In cross-examination, he stated that it could not be ruled out that these injuries could be self-inflicted.
26. PW-12 is Dr. [ENTITY]. He was the doctor who had examined the injured personally. He deposed about preparing the MLC Ex.PW5/A.
27. PW-9 is Dr. [ENTITY]. He had examined C.T. Scan report and gave opinion about nature of injuries as simple.
28. PW-16 is Dr. [ENTITY]. He had also given opinion about nature of injuries as simple. The opinion is Ex.PW16/A. FORMAL WITNESS(ES)
29. PW-4 is SI [ENTITY]. He had collected age proof of the accused persons and submitted the report in the court.
30. PW-6 is ASI [ENTITY]. He was Duty Officer during the relevant time. He deposed about receiving call from Control Room, North-East through wireless about quarrel at H. No. A-11, Gali No. 1, Karawal Nagar. He recorded the said call in rojnamcha register vide DD No. 3A, copy of the same is Ex.PW6/A. Another copy is Ex.PW6/B. He informed SI [ENTITY]. He also deposed about receiving rukka from Ct. [ENTITY] at about 03:20 am. It was by SI [ENTITY]. On the basis of rukka, he got registered FIR No. 352/12 under [SECTION] [ACT]. Copy of the FIR is Ex.PW6/C. He had made [ENTITY] DD No. 7A, copy of which is Ex.PW6/D.
31. PW-17 is W/Ct. [ENTITY]. She was posted in the Control Room. She deposed about receiving PCR call at 00:41:50 hrs. at Extn. No. 135 from mobile No. 9311612455 regarding a quarrel in H. No. A-11, Gali No. 1, Ram Vihar, Karawal Nagar, Delhi. She dispatched the said call to Command Room. She filled PCR form which is Ex.PW17/A.
32. PW-10 is ASI [ENTITY]. He had only prepared draft challan.
STATEMENTS OF ACCUSED PERSONS
33. Incriminating circumstances appearing in evidence against accused persons were put to them as required U/[SECTION] [ACT] All the accused persons stated that they were innocent and were falsely implicated.
34. Accused [ENTITY] stated that on 25.08.2012, injured [ENTITY] had quarreled with him but the matter was compromised in the police station. His MLC was prepared at GTB Hospital. He stated that complainant had falsely implicated him due to this.
35. Accused [ENTITY] stated that he was implicated as he was friend of accused [ENTITY].
36. Accused [ENTITY] also stated the same fact.
DEFENCE EVIDENCE
37. DW-1 is Smt. [ENTITY]. She is mother of accused [ENTITY]. She deposed that in the year 2012, [ENTITY] had quarreled with her son [ENTITY] alleging that [ENTITY] used to talk to his sister. However, [ENTITY] later on admitted his fault and settled the matter. She deposed that after one month, [ENTITY] had quarreled with some persons. At that time, her son [ENTITY] was in the house.
38. In cross-examination, she could not tell the exact date and month of quarrel of [ENTITY] with [ENTITY] but told that it was 25 th of a month.
39. DW-2 is [ENTITY]. She is mother of accused [ENTITY]. She deposed that they received a phone call in the morning of 26.09.2012 from police station and police had called [ENTITY] there. She deposed that [ENTITY] went to police station and did not come back. Thereafter she went there and came to know that [ENTITY] had been arrested. She deposed that [ENTITY] has been falsely implicated. She stated that [ENTITY] was present in the house at the alleged time of offence.
40. DW-3 is [ENTITY]. She is sister of [ENTITY]. She stated that [ENTITY] was at her house from 20.09.2012 to 26.09.2012 as she was not feeling well. She deposed that she received a phone call from her mother that police officials were coming to their house. After that [ENTITY] surrendered before the court.
41. In cross-examination, she denied that [ENTITY] was not present at her house.
42. DW-4 is Dr. [ENTITY]. She was called to prove MLC prepared by one Dr. [ENTITY]. MLC pertains to accused [ENTITY] and was prepared on 25.08.2012. Carbon copy of [CASE NUMBER] is Ex.DW4/A.
43. DW-5 is HC [ENTITY]. He produced the record of DD No. 7A dated 25.08.2012. Copy of the record is Ex.DW5/A. He also produced original Rojnamcha containing DD No. 37B dated 25.08.2012, copy of which is Ex.DW5/B. SUBMISSIONS OF THE PARTIES
44. I have heard Sh. [ENTITY], Ld. Addl. PP for the [ENTITY] and Sh. [ENTITY], Ld. Counsel for all the accused.
FINDINGS
45. The prosecution was required to prove the ingredients of the offences. On the basis of the submissions of the parties, the following points for determination arise in the present case:
i). Whether any such incident as alleged by complainant ever happened?
ii). Whether it were the accused who caused the said incident?
46. All the points for determination are taken up together.
47. The case of the prosecution is centered around evidence of PW-1 [ENTITY]. He is the complainant as well as the injured.
48. The evidence of an injured witness commands greater respect and weightage under the law. In several decisions, such as Jarnail Singh v. [ENTITY] of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. [ENTITY] of Maharashtra, (2010) 6SCC 673; and Abdul Sayed v. [ENTITY] of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court has time and again reiterated the value of an injured witness and has observed:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
49. As per MLC Ex.PW5/A, injured [ENTITY] received the following injuries:
i). Lacerations over right parietal region, both measuring 5 cm in length.
ii). Laceration on left parietal region measuring 4 cm.
50. Whether injured [ENTITY] should be believed or not is the question to be answered. Whether evidence of PW-1 suffers from any major contradictions and material discrepancies which adversely affect his evidence? If it is found that evidence of PW-1 is full of material contradictions and discrepancies, then evidence of PW-1 can be rejected.
51. Incident allegedly happened around midnight. All the family members were sleeping in the house. The date of incident is 25.09.2012. It was around onset of winters. Bricks were allegedly thrown at the house. When so many persons had tried to enter the house by throwing bricks, it was next to impossible that no other family member would wake up at that time. But according to PW-1, no family member woke up. No other family member is a witness except the father. However, the father was not present at the spot. The mother was sleeping on the ground floor. At least she should have been a witness but it is not so. This is quite unnatural. As already mentioned, it was onset of winters. No coolers would be running, therefore, outside sound would be audible. But strangely no family member woke up or came to help of PW-1. This creates doubt about story put up by PW-1.
52. PW-1 received certain injuries. Police also arrived at the house and took him to the hospital. But still no family member came forward. No family member accompanied PW-1 to the hospital. This tends to show that the allegations are afterthought and cooked up. The possibility of PW-1 receiving injuries at some other place in some other manner cannot be ruled out.
53. PW-2 was the person who had made the call to 100 number. However, he only deposed that he made the call as he heard noises from the street and came out from his house and saw that few boys armed with [ENTITY]s were fleeing from there. He did not tell anything else. He did not identify any of the accused as the offenders. As such he was cross-examined by learned Prosecutor but nothing came out.
54. Accused persons have brought on record that some proceedings took place earlier on 25.08.2012. DD No. 7A (Ex.DW5/A) was lodged in this regard. Accused [ENTITY] had received injuries. His MLC Ex.DW4/A was also prepared in this regard. [ENTITY] had alleged that [ENTITY] had quarreled with him and during quarrel he received some injuries. The quarrel happened because [ENTITY] had seen his sister talking with [ENTITY]. These proceedings show that [ENTITY] was having some grudge against accused [ENTITY] due to those proceedings. Motive for false implication is certainly reflected from this material.
55. Prosecution has relied upon recovery of [ENTITY] and [ENTITY] from the house of accused [ENTITY] and [ENTITY] respectively. These recoveries are, however, not reliable. No public witness was joined at the time of recovery. Moreover, merely from recovery of [ENTITY] and [ENTITY], it cannot be said that these are the same weapons which were used in the offence. There is no forensic examination of this [ENTITY] and [ENTITY].
56. Evidence of PW-1 is apparently suffering from major contradictions and material discrepancies. This makes evidence of PW-1 doubtful, unreliable and unsafe to act upon.
57. In view of the above, all the accused persons are hereby acquitted of all the charges. Accused persons are required to furnish bail bonds as per [SECTION] [ACT]. At request of the accused persons, bonds already furnished by them are accepted further for a period of six months for the purposes of [SECTION] [ACT].
58. Case property is confiscated. It be destroyed as per rules.
59. File be consigned to Record Room.
Announced in open court on day of 20th day of December, 2017.
([ENTITY]) Special Judge (NDPS) / ASJ / NE / KKD Courts: Delhi.