Interim Order 8

Order Details: COPY OF ORDER
Pdf Text: 6
10 CA / 203/2024
YOGENDER NATH SHARMA
Vs.
STATE
10.12.2024
Present: Appellants / accused persons with Ld. Counsel Sh. Naveer
Dabas.
Chaudhary Rajender Singh and Sh. Sandeep Kumar, Ld.
Counsels for the complainant.
Sh. Jitendra Sharma, Ld. Addl. PP for the State / respondent.
On the last date of hearing, inadvertently in the order-sheet, the
matter was listed for orders. Arguments were heard only on behalf of the
appellants on the last date and arguments of complainant and Ld. Addl. PP
are yet to be heard. Accordingly, arguments heard.
On the last date of hearing, Ld. counsel for the accused /
appellants had submitted that the accused persons / appellants have been
convicted by the Ld. Trial Court while brushing aside the discrepancies in
the statements of the witnesses as minor. He pointed out that there are
discrepancy in the prosecution story as well as in the testimony of the
witnesses, which go to the root of the case. besides the averments made in
the appeal, he specifically pointed out that as per DD entry bearing no.14A
dated 07.06.2009, on the basis of which the investigating agency came into
action, a PCR call was made at 1.05 p.m. regarding altercation / quarrel
near house no. C-1/705. Ld. Counsel submitted that the said house belongs
to the accused persons, however, from testimony of PW9 ASI Rishi Raj, to
whom the said DD was marked, it can be seen that instead of reaching the
spot, as pointed out in the DD i.e. near House No.C-1/705, he reached the
house of the complainant i.e. House No.716, which is on the end of Gali /
lane. Even in the rukka / tehrir, it is mentioned that the IO directly went to
House No.716 and did not make any enquiry at House No.705, with respect
to which he had received the aforesaid DD. Ld. Counsel has further pointed
out that as per tehrir, the IO had noticed a damaged Santro car at the spot,
but did not notice any tent or cooking taking place there, or chairs lying
there, which may indicate that a Bhandara was organised by the
complainant on that day, as stated in the complaint. In this regard, he
further submitted that in the complaint, it is stated that the complainant was
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organising the said Bhandara in view of the birthday of his son Amit.
However, complainant / PW1 admitted in cross-examination (that the date
of birth of his son Amit is 04.03.1993, with respect to which he had already
filed an affidavit Ex. PW1/D1 in Juvenile Justice Board), though, the
incident is of 07.06.2009. It was also submitted that, though, in the
complaint, it is stated that accused no.1 was abusing the complainant since
morning, but no PCR call was made in this regard. Further, a Santro car
was recovered from the spot, but the same did not belong to Praveen, rather,
it belonged to one Praveen Bharti, who had produced the said vehicle
during the testimony of PW1, as Superdar and with respect to whom, there
is no document on record to show that he had handed over the vehicle to
said Praveen, or his family members for use. Further, as regards the
complaint / tehrir, it is submitted that as per IO, statement of the
complainant was recorded in the hospital, whereas the complainant has
stated that he directly went to the PS, where his statement was recorded. It
is also pointed out that PW7 HC Rajbir, who as per his testimony had
accompanied the IO on 07.06.2009 upon receiving the DD No.14A, was
actually on casual leave on that day, as per the reply of RTI Ex. PW7/DA,
which was also put to the said witness during his cross-examination. Ld.
Counsel further pointed out that even the said witness did not notice any
arrangement of any Bhandara at the spot. Further, he stated that, though,
two nephews were called from 10 kms away for the said Bhandara, but the
complainant admitted in his cross-examination that none of the
neighbourers / relatives were called on that day, which further falsify the
story of prosecution in this regard. As regards the MLCs of the injured, it is
submitted by Ld. Counsel that it is mentioned on the MLCs that injured
persons absconded from the hospital, which shows that the injured persons
were under apprehension that they may be searched by the police in view of
the incident that took place. He further pointed out that the injuries shown
in the MLC are simple in nature and are not possible by danda or lathi, as
alleged in the complaint.
It was further submitted that the present accused / appellants
were framed in the present case by ASI Rishi Raj for the reasons that upon
receiving DD No.14A, instead of going to the spot i.e. at the house of
accused persons at 705, he went to the house of the complainant and
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proceeded to record their statements. When objection in this regard was
raised by accused no.1, he entered into altercation with accused Yogender
Nath, with respect to which a PCR call was made by accused Yogender
Nath at 16.59:40 hours, certified copy of which is Ex. PW9/DX and which
was duly put to PW9 ASI Rishi Raj during his cross-examination.
It is further submitted by Ld. Counsel that even PW15 Dr.
Satish Chand has submitted in his cross-examination that the injuries
received on the persons of complainant are possible from fall and can be
self-inflicted also. He further deposed that, though, it is alleged that the
accused persons entered in to the house of complainant, armed with Danda
and Lathi, but no recovery of any weapon of offence was made in the
present case.
Lastly, it was submitted that there are several discrepancies in
the statement of witnesses, including the injured persons, which have not
been appreciated by the Ld. Trial Court and have been stated to be minor
discrepancies, though, the said discrepancies, if taken together, raise serious
doubt on the prosecution story. In light of the said discrepancies, the
accused persons have been wrongly convicted by Ld. Trial Court and that
accused / appellants are entitled to acquittal.
Today, Ld. Counsel for the complainant submitted that, with
respect to the arguments of the appellants that the incident had actually
taken place at H.No. C-1/705 and the IO had wrongly gone to H.No. C-
1/716. Perusal of DD No.14A reveals that the call alleged that
Gundas have
come at C-1/705 and they are firing at 705, whereas no such incident of
firing took place. He submitted that it shows that the said call was made by
appellant Yogender Nath, in view of the incident that took place at the
residence of the complainant. In this regard, he further submitted that the
appellants also examined DW2 to prove the site plan of Harsh Vihar, but
that too does not help the defence taken by the appellants.
He further submitted that as per the evidence of the police
witnesses, they reached at H.No.705 and found that no incident had taken
place there, as alleged in DD No.14A and that the incident had actually
taken place at the house of complainant. He stated that the testimonies of
police witnesses are consistent on this aspect.
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As regards the organizing of
Bhandara on 07.06.2019 at house
of accused at H.No.716, in view of birthday of his son Amit, Ld. Counsel
submitted that Amit has clarified in his cross-examination that in his
Janampatri, his date of birth is mentioned as 07.06.1994, whereas in his
school record, his date of birth is mentioned as 04.03.1993.
It was further submitted that as regards Bhandara, the non-
seizure of any utensil at the spot does not weaken the case of prosecution as
the occasion to seize the utencils would have come only if the utensils had
been used in the commission of offence.
Ld. Counsel further submitted that three of the accused persons
namely Atul, Sachin and Pradeep for the first time in their statements
u/s.313 Cr.P.C. raised the defence of alibi, by stating that they were not
present at the spot, whereas no question or suggestion in this regard was put
to any of the witnesses during their cross-examination.
Lastly, he submitted that it was argued by Ld. Counsel for
appellants that the injured had absconded, as recorded in the MLC. He
pointed out that PW11 was examined during prosecution evidence, who has
categorically stated that he had examined Amit on 07.06.2019 and as per X-
ray report, he was found to have fracture. Thus, he submitted that the
injured persons never absconded, as alleged.
Ld. Addl. PP also reiterated the submissions made by Ld.
Counsel for complainant.
Ld. Counsel for the appellants, in rebuttal, has opposed the
aforesaid arguments and prayed for acquittal of the appellants / accused
persons. He specifically stated that he has never argued that the utenciles
were not seized, rather, he argued that none of the police witnesses noted
any utencil, tents or chairs at the spot, which may show that complainant
had organised a Bhandara on 07.06.2019.
Arguments concluded.
Now, to come up for clarification, if any / orders on
20.12.2024.
(Saurabh Partap Singh Laler)
Special Judge (NDPS Act),
Shahdara, Karkardooma Courts
Delhi/10.12.2024
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