Delhi District Court
State vs Manoj Kumar @ Kaira on 25 June, 2024
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Manoj Kumar @ Kaira etc.
FIR No : 133/2012
U/s : 147/149/186/332/353/394/427 IPC
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020001112013
2. Date of commission of offence : 18.12.2012
3. Date of institution of the case : 13.08.2013
4. Name of the complainant : SI Praveen Kumar
5. Name of accused, parentage & : 1. Manoj Kumar @
address Kaira
S/o Samay Singh
2. Shri Krishan
@ Hariyal
S/o Hari Singh
3. Sanjay
S/o Chander Singh
4. Balraj @ Rahul
S/o Ram Singh
5. Brahm Prakash @
Bhone
S/o Dharam Singh
6. Narender Kumar
S/o Ram Singh
7. Mukesh @ Monu
S/o Ranjeet Singh
8. Pradeep Kumar @
Jhoney Digitally signed
by Abhinav
Abhinav Ahlawat
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 1 of 62 Ahlawat Date:
2024.06.25
17:41:48 +0530
S/o Hari Singh
9. Shiv Kumar @
Babloo
S/o Samay Singh
10. Dharampal
S/o Hari Singh
11. Amit Kumar
S/o Dharampal
12. Dharam Singh
S/o Amar Singh
13. Rishi Pal
S/o Shri Krishan
14. Shashi Pal
S/o Shri Krishan
15. Subhash
S/o Hari Singh
16. Ranjeet
S/o Amar Singh
17. Deepak Yadav
S/o Laxman Singh
18. Rajpal
S/o Hari Singh
19. Rampal
S/o Hari Singh
20. Raghubir
S/o Hari Singh
21. Ran Singh
S/o Jai Narayan
22. Harpal
S/o Dhanpat Singh
Digitally signed
by Abhinav
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 2 of 62 Abhinav Ahlawat
Ahlawat Date:
2024.06.25
17:41:59 +0530
23. Laxman Singh
S/o Jai Narayan
24. Ramesh Yadav
S/o Dharam Singh
25. Jogender
S/o Raghubir
All R/o VPO Jafarpur,
Kalan, Delhi.
6. Offence complained of : 147/149/186/332/353/
394/427 IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 25.06.2024
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Vipin Sehrawat, Ld. Counsel for accused
persons.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 18.12.2012 at about 09:30 pm near Shiv Mandir, Jafarpur Kalan near the house of Ram Dass, accused persons in prosecution of common object after constituting an unlawful assembly to stop the public servant i.e. Ct. Om Prakash and other police staff after putting them under fear of injury used violence by giving beatings to Ct. Om Prakash and snatched his wireless set and mobile phone being FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 3 of 62 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:42:10 +0530 members of unlawful assembly and in execution of object of the assembly started vandalizing the private property as well as damaged one Honda Accord car bearing registration no.DL- 4CNC-1676 and thereby committed the offences punishable under Sections 147/149/186/332/353/394/427 of IPC, for which FIR no.133/2012 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, a copy of the chargesheet was supplied to the accused persons in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under Sections 147/149/186/332/353/394/427 of IPC was framed against the accused on 24.07.2015. The accused persons pleaded not guilty and claimed trial.
3. Here it is pertinent to mention that accused no.4, 9, 16 and 20 had expired during the pendency of trial and proceedings qua them were abated accordingly. Therefore, case was proceeded qua remaining accused persons only.
Digitally signedAbhinav by Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 4 of 62 Ahlawat Date: 2024.06.25 17:42:22 +0530 PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Ram Dass PW-2 Ct. Rajesh Kumar PW-3 HC Sat Narayan PW-4 HC Om Prakash PW-5 Vinod Kumar PW-6 Mitender Kumar PW-7 Mahesh Yadav PW-8 HC Lokendra Singh PW-9 Dr. L. R. Richhele PW-10 Dr. Bikash Sinha PW-11 HC Mahesh Chand PW-12 HC Inderpal PW-13 Kanchan PW-14 ASI Satish PW-15 HC Anish Kumar PW-16 Inspector Praveen Kumar PW-17 ACP Ranjeet Dhaka DOCUMENTARY EVIDENCE Ex.PW4/A Statement of complainant Ex.PW4/B Seizure memo qua blood stained clothes Ex.PW4/C Seizure memo qua receipt of mobile phone Ex.PW4/C Bill of mobile phone Ex.P1 to P8 Photographs of spot Ex.P9 Uniform Ex.P10 Inner waist Ex.PW5/A Seizure memo qua pelted stones Ex.PW5/B Seizure memo qua damaged car Ex.PW7/A Superdarinama Ex.PW7/B Photographs of car bearing no.
DL4CNC1676
Ex.PW8/PL1 Case property
Ex.PW9/A X-ray
Ex.PW10/A MLC no.5529/12 dated 18.12.2012
Ex.PW11/A Arrest memo qua accused Shiv Kumar
Ex.PW11/B Arrest memo qua accused Pradeep Digitally signed
by Abhinav
Abhinav Ahlawat
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 5 of 62 Ahlawat Date:
2024.06.25 17:42:34 +0530 Ex.PW11/C Personal search memo qua accused Shiv Kumar Ex.PW11/D Personal search memo qua accused Pradeep Ex.PW11/E Disclosure statement qua accused Shiv Kumar Ex.PW11/F Disclosure statement qua accused Pradeep Ex.PW11/G Pointing out memo Ex.PW11/H Seizure memo qua mobile phone Ex.PW11/I Seizure memo qua danda Ex.PW11/J Mobile phone Ex.PW11/K Danda Ex.PW12/A Wireless of motorola company Ex.PW12/B Seizure memo qua case property Ex.PW12/C Arrest memo qua accused Manoj @ Kaira Ex.PW12/D Personal search memo qua accused Manoj @ Kaira Ex.PW12/E Disclosure statement qua accused Manoj @ Kaira Ex.PW12/F Pointing out memo Ex.PW14/A FIR Ex.PW14/B DD no.2A dated 19.12.2012 Ex.PW15/A Destruction order bearing no.5639-
41/HAR/DWD dated 29.03.2019
Ex.PW16/A Tehrir
Ex.PW16/B Certified copies of Arms and ammunition
Ex.PW17/A Sanction under Section 195 Cr. P. C.
ADMITTED DOCUMENTS
Ex.A1 Arrest memo of accused Shashi Pal S/o Shree
Krishan
Ex.A2 Arrest memo of accused Subhash S/o Hari
Singh
Ex.A3 Arrest memo of accused Ranjeet Singh S/o
Amar Singh.
Ex.A4 Arrest memo of accused Deepak Yadav S/o
Laxman Singh
Ex.A5 Arrest memo of accused Rajpal S/o Hari
Singh
Ex.A6 Arrest memo of accused Rampal S/o Hari
Singh
Ex.A7 Arrest memo of accused Ran Singh S/o Jai
Narain
Ex.A8 Arrest memo of accused Harpal S/o Dhanpal
Singh
Digitally signed
by Abhinav
Abhinav Ahlawat
Page 6 of 62
Date:
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Ahlawat 2024.06.25
17:42:44
+0530
Ex.A9 Arrest memo of accused Laxman Singh S/o
Jai Narain
Ex.A10 Arrest memo of accused Ramesh Yadav S/o
Dharam Singh
Ex.A11 Arrest memo of accused Joginder S/o
Raghubir
5. PW1 Ram Dass deposed that on 18.12.2012 at about 07.30 PM, his son was out of his residence. At that time, he found that his son was laying on the gate of his residence. He also found that his son had knife injury in his stomach and blood was oozing out from it. He called at no.100 from mobile of his son and PCR came at the spot. He alongwith his son went to the RTRM Hospital by the PCR. Treatment of his son was conducted. After a long time at about 11.00-12.00 midnight, he returned back to his house. Thereafter, he found an incident of stone pelting had taken place at his residence and residence of his nephew Vinod.
At that time, no person of assailant was present there and he saw that Honda Accord Car of his relative was also damaged by those assailants. He found many police persons were present at his residence. One Police Zypsy also came at his residence and they took photograph of his house. Police had seized the pelted stones available from his residence, residence of his nephew Vinod and the said damaged car. Police brought the same in the Police Station. He could not say as to who were assailants of rioting at his residence and who had caused damage to the car. As PW1 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that at the hospital, he had no information of attacking at his house by the villagers of his village. He stated that accused persons are the persons who are resident of his village. He stated that police took the photographs Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 7 of 62 Ahlawat Date:
2024.06.25 17:42:54 +0530 of spot in his presence and he proved the same as Ex.Pl to Ex.P8 (Colly). Police had not got registered any FIR in his presence.
6. PW2 Ct. Rajesh Kumar deposed that on 18.12.2012, after his uty, he reached his Village where he saw that police were gathered at the house of his brother Vinod Kumar. When he came near to the spot, he saw that a lot of bricks and stones laying inside and outside the house of Vinod Kumar and he saw that Honda Accord car parked before the house of Shri Ram Das was also in damaged condition. In the meanwhile, some police personnel from Zypsy came at the spot and they took the photographs of the spot. SI Praveen Kumar who was already present had seized stones and bricks which were laying at the spot. They also seized damaged car. Nothing more happened except the above mentioned fact. As PW2 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that he had no knowledge about the fact that on 18.12.2012 at about 07:15 PM, one incident of knife blowing to his cousin brother Deepu by Lalit and his associates. Incident of pelting stones and bricks upon the houses of his brother Vinod and Deepu never took place in his presence. He had no knowledge of the above mentioned incident. He stated that he was present in his Village at about 09:45 PM but no incident of attacking by above mentioned persons upon police party was happened. In his presence, no police person was sent in RTRM Hospital who sustained injury.
7. PW3 HC Sat Narayan deposed that on 18.12.2012, he was on QRT duty at QRT vehicle bearing no.DL-3CZ-9307 from 06:00 Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 8 of 62 Ahlawat Date:
2024.06.25 17:43:04 +0530 PM to 06:00 AM. He was in-charge of the said vehicle. Ct. Om Prakash and Ct. Chand Ram were accompanied him on said vehicle. The driver Sonu who was a public person was driver of his QRT Vehicle. They were on area patrolling duty and at about 06:10 PM, they reached at peak of Surera More. At about 07:30 PM, he received wireless message regarding knife blowing in Jaffar Pur Village. Thereafter, they reached at the Jaffar Pur Village where they came to know that injured Deepu had been shifted in the RTRM Hospital by the PCR. At the spot, he received telephonic information from duty officer that aggressive crowd had been collected in the RTRM Hospital and they were directed to reach there. Thereupon, they reached at the RTRM hospital where they found aggressive crowd. They tried to control the aggression of the crowd and try to make understand them. In the meanwhile at about 09:30 PM, he received wireless message regarding firing, quarrel, pelting in Village Jaffar Pur and they were directed to reach there. Thereafter, they reached at the house of Ram Dass situated near SBI Rank where they found 50-60 persons gathered at the house of the Ramdass. They were pelting stones on the house of Ram Dass. He alongwith Constable Om Prakash and Ct. Chand Ram tried to pacify the crowd. He and Om Prakash requested to the crowd for not pelting stones at the house of Ram Dass but crowd stated to them to leave the spot. Constable Om Prakash also tried to make understand those public persons. One person out of the crowd came out and stated that "chalo hum inhi ko dekh lete hai pehle". Upon saying the said person, one person of the crowd gave a danda blow to Constable Om Prakash, some other persons of crowd also thrown stones and bricks upon Constable Om Prakash. Due to attack of said person, Constable Om Prakash Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 9 of 62 Ahlawat Date:
2024.06.25 17:43:13 +0530 sustained head injuries. When injured Om Prakash took out phone to make call at PS, one person from the crowd snatched mobile phone of Constable Om Prakash. Another person from the crowd had snatched the wireless set from Constable Om Prakash. Name of the accused who snatched the wireless set was revealed as Manoj and name of the accused who snatched the mobile phone was revealed as Pradeep @ Jhoney. They anyhow managed to escape from the spot and reached at the RTRM Hospital to admit the Constable Om Prakash where his treatment was done. At about 11:15 PM, SI Praveen Kumar reached there and recorded statement of Constable Om Prakash. The witness identified all the accused persons. The witness stated that he recognized the accused persons by face only, he does know the names of the accused persons. As PW3 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross- examination, wherein he failed to idenfity accused Manoj @ Kaira and Pradeep @ Jhoney who had snatched wireless set and mobile phone. In the cross-examination, he stated that he did not identify the persons who had beaten Constable Om Prakash with danda and lathi. He did not arrest any person at the spot. Constable Om Prakash tried to call for re-enforcement, through wireless however the wireless set was snatched from Ct. Om Prakash. He did not try to call for re-enforcement through his mobile phone. IO had not seized anything at the spot in his presence. Doctor had never seized any cloth of Constable Om Prakash in his presence. No photographs of the spot was ever taken in his presence. All the police officials were in police uniform. The IO has not obtained his signature on any document. A car parked in the street was also not seized by the IO. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 10 of 62 Ahlawat Date:
2024.06.25 17:43:20 +0530
8. PW4 HC Om Prakash deposed that on 08.12.2012 he was on duty at QRT van. At about 06:10 pm he alongwith HC Satyanarayan, Ct. Chandram and the private driver of the QRT gypsy namely Sonu took weapons and WT set from the malkhana in the QRT Van and reached Surhera Mor for checking. The last digits of the gypsy was 9307 again said the registration number of the gypsy was DL 3C Z 9307. At about 07:30 PM, he received information with regard to the quarrel at village J.P. Kalan. On the instructions of the senior officers, he reached near Shiv Mandir, JP Kalan. The information was regarding the quarrel and with regard to stabbing with knife of one Deepu. When they reached there, crowd has already gathered in front of State Bank. On inquiry they came to know that injured Deepu had been taken to the Hospital in a PCR. Thereafter, on the instructions of the senior officers, he alongwith HC Satyanarayan and Ct. Chand Ram with the QRT Driver reached the Hospital. There was huge crowd gathered in the hospital. He tried to make the crowd understand and to control the situation. At about 09:30 PM, he received a call from the senior officers that there is quarrel, stone pelting and gun fire at village J.P. Kalan. Thereafter, he alongwith his staff reached Shiv Mandir, opposite SBI, JP Kalan. There he saw 40-50 persons gathered in front of the Bank and were pelting stones at the house of Deepu. He de-boarded his car and tried to make them understand not to commit such kind of acts. Out of that crowd one accused Shiv Kumar @ Bablu said to him that "Tum police wale yahan se chale jao, hum apne aap dekh lege". He again tried to make them understand and accused persons said that "police walo ko hi dekh lete hai". Out of that crowd 15-20 accused persons started pelting stones on him started beating him with the help of a dunda. Accused Shiv Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 11 of 62 Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:43:29 +0530 Kumar Bablu hit him on his head with the dunda. When he tried to inform about the incident on the wireless set, accused Manoj @ Kaira snatched the wireless set. When he tried to inform the PS about the incident on his phone accused Jhony snatched his mobile phone and started beating him. One Honda City again said Honda Accord was also damaged due to the incident the said car was parked near the house of Deepu. The witness correctly identified accused persons Manoj @ Kaira, Jhony and Shiv Kumar present in the court. The witness stated that he did not know other accused persons by name, as the matter was of the the year 2012. Thereafter, he went to the hospital where his medical examination was got conducted and he was admitted in the hospital. The duty constable present at the hospital informed the police. Thereafter, IO recorded his statement Ex.PW4/A. The witness had correctly identified his Lux Cots wool having blood stain on the neck which was seized by the IO vide seizure memo Ex.PW4/B, his uniform as Ex.P9 and inner waist as Ex. P10. He also handed over to IO one receipt of his mobile phone which was seized by the IO vide seizure memo Ex.PW4/C. The witness correctly identified the photographs of the spot as Ex.P1 to P8 and the bill of the mobile phone as Ex.PW4/D. In the cross- examination, he stated that there was no specific identification mark on the uniform and the inner waist which shows that the same belonged to him. He could not tell whether his blood sample was taken by the doctor. He did not remember whether his uniform and his waist or any other things were seized by the doctor or not. At the time of his medical examination, he was wearing the same cloth. His statement was recorded by the IO at the hospital. His supplementary statement was recorded by the IO but he did not remember the date when the same was recorded. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 12 of 62 Ahlawat Date:
2024.06.25 17:43:37 +0530 He stated that his uniform and inner waist were seized by the IO on the same day of incident after his statement was recorded by the IO. Three- four persons came to his rescue. However, he remember the name of one Ram Dass only who came to his rescue. The car present at the spot was already in damaged condition when he reached the spot. He was semi conscious after the incident. He regained his conscious after 2-3 hours of his admission in the hospital. He did not know the exact time when SI Praveen came to him and met him in the hospital. The incident took place at about 9.30 pm. His statement was recorded when he regained his conscious i.e. about 11.30 pm. He did not remember whether the IO inquired from any other person in his presence or not. He did not know whether Ram Dass was having any enmity with accused persons or any intimacy with him. He did not know when the photographs of the spot were clicked by the IO and whether any site plan was prepared by the IO or not.
9. PW5 Vinod Kumar deposed that on 18.12.2012, at about 07:15 PM, his cousin brother namely Deepu was stabbed with a knife by someone. Police reached the spot and took him to the hospital. At about 9:15 PM some persons pelted stones at his house and house of his uncle(chacha). Thereafter heI made a call on 100 from his mobile no. 9213966840. After about half an hour police reached at the spot. Thereafter he came out of his house and saw that there were many stones lying outside his house and in the street and one car which was parked outside the house of his uncle was also in damaged condition. Crime team reached the spot. Photograph of the spot were taken. IO seized the pelted stones in a plastic sack vide seizure memo Ex.PW5/A and the damaged car was also seized vide seizure memo Ex.PW5/B. He Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 13 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:43:46 +0530 had have not seen any of the accused persons who were involved in the incident. None of the accused persons involved in the incident are present in the court. As PW5 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross- examination, wherein he denied all the suggestions put to him.
10. PW6 Mitender Kumar deposed regarding the use of Tata Indicom phone having sim no. 9266660102 by his relative Om Prakash.
11. PW7 Mahesh Yadav deposed regarding release of bearing registration no.DL-4CNC-1676 on superdari vide superdarinama Ex.PW7/A. He also identified the said vehicle through photographs as Ex.PW7/B (colly).
12. PW8 HC Lokendra Singh deposed that on 18.12.2012, he alongwith SI Parveen Kumar went to J.P. Kalan Village after receiving DD no.47A. After reaching, he saw there were lots of stones lying in the gali of SBI Bank. There were local police force and other police force. The people were gathered there. He remained present there on the instruction of SI Parveen Kumar as he had received a call that Ct. Om Prakash had been admitted in RTRM hospital who was injured. SI Praveen Kumar left the said place for the RTRM hospital. At about 11:30pm, SI Parveen came back and prepared rukka on the basis of statement of a person but he did not remember his or her name and got the FIR registered through him. In the meantime, mobile crime team arrived at the said place. He reached at the place of occurrence at about 01:20 am. SI Parveen Kumar recorded the statement of crime team, police persons. The stones were collected in two plactic katta and same were seized. The said Kattas were sealed Digitally signed FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 14 of 62 by Abhinav Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:43:55 +0530 with the seal of PK. There was a damaged vehicle make Honda Accord bearing registration no.DL-4C-1676 but he did not remember the whole digit. The said damaged vehicle was also seized. On 19.12.2012 in the morning, IO received call from secret informer informed that person who were involved in the present case standing at Dhansa Border, Delhi. He alongwith IO and other police staff went there and found six persons. They apprehended all six persons and formal arrest memo were prepared. During investigation, the disclosure statement of the accused persons were recorded and their personal search were got conducted. Thereafter, the medical examination of accused persons was got conducted at RTRM hospital and after necessary formality they were produced before concerned Court. The witness has correctly identified the case property as Ex.PW8/PL1 (colly). In the cross-examination, he stated that he remained present at the spot for about 7 hours (09:30pm-05:00am). He did not know whether there was CCTV was installed or not.
13. PW9 Dr. LR Richhele proved X-ray report as Ex.PW9/A. As per his report there were no bony injuries seen in the X-ray films regarding skull, right wrist with hand and left arm of the injured.
14. PW10 Dr. Bikash Sinha proved MLC No. 5529/12 dated 18.12.2012 of Om Prakash Ex.PW10/A. The nature of injuries were later on observed as simple blunt. In the cross-examination, she stated that injured Om Prakash was in proper conscious condition when he was brought the hospital. No blood sample of the said injured was taken by her during his medical examination. She had not seized the uniform of the injured Om Prakash as he did not seem to be seriously injured.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 15 of 62 Ahlawat Date:
2024.06.25 17:44:05 +0530
15. PW11 HC Mahesh Chand deposed that on 07.01.2013, he had joined the investigation in the present matter. Upon the directions of SI Praveen Kumar, he came at Dwarka Courts in the court of Sh. Vikram, the then Ld. MM at about 2:00pm. The two of the accused persons in the present matter namely Shiv Kumar @ Bablu and Pradeep @ Johny surrendered before the Hon'ble court on that day, who were formally arrested by the IO after taking permission of the Court vide separate arrest memos Ex.PW11/A and Ex.PW11/B, personally searched vide personal search memo Ex.PW11/C and Ex.PW11/D and recorded their disclosure statements Ex.PW11/E and Ex.PW11/F. Thereafter, the Court was pleased to give one day police custody remand of both the accused persons upon the application by the IO.
Thereafter, they along with both the accused persons went in search of the other co-accused persons but none was found. Thereafter, he along with both the accused persons and the IO reached at village Jaffarpur Kalan at about 05:00 pm where both the accused persons took them to the spot of incident in a street a little ahead of SBI Bank where the accused persons pointed out at the spot of incident and showed them the spot of incident. The pointing out memo of the spot of incident was prepared by the IO Ex.PW11/G. Thereafter, the accused Pradeep @ Johny led them while walking ahead of them to one field having mustered crop in the road going towards village Surhera and got one mobile phone recovered make Spice D-5555 having a Tata Indicom sim and disclosed that the said phone was snatched by him from Ct. Om Prakash on 18.12.2012. Thereafter, the IO put the said mobile phone in a transparent polythene and the said polythene kept in pullanda made of white cloth which the seal of PK. The seal after used was handed over to him the said pullanda was then Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 16 of 62 Date:
Ahlawat 2024.06.25 17:44:12 +0530 seized vide seizure memo Ex.PW11/H. Thereafter, accused Shiv Kumar @ Bablu led them to the street in front of SBI Bank which went towards main Dhansa Road through Dabar Enclave. He lead them through the said street out of the village and towards the fields where mustered crop and got recovered one wooden stick (danda) of about 3 feet long and disclosed that that is the same danda which was used by him to hit Ct. Om Prakash. Thereafter, the said danda was seized vide seizure memo Ex.PW11/I. Thereafter, at about 10:30 pm they came back to the police station and both the accused persons were put to lockup. The seized case property was submitted to Malkhana. The witness has correctly identified the mobile phone as Ex.PW11/J, danda as Ex.PW11/K and accused Pradeep @ Johny present in the Court. In the cross-examination, he stated that he did not remember at what time his statement was recorded by the IO. The seal which was handed over to him by the IO which was never deposited by him to the malkhana. He had identified the danda in the court by seeing its length, thickness and its bud marks. He stated that there was no other specific mark on the said danda which could distinguish it from other such danda. He stated that the path leading to the fields where the danda was recovered was a public road. No site plan regarding spot of recovery of the danda was prepared by the IO in his presence. He could not tell as to whom the said field belonged. There was no public persons present at the spot at the time of recovery of the said danda.
16. PW12 Inderpal deposed that on 21.10.2012, he along with SI Praveen Kumar went to spot of the incident. When they reached there, they found that the incident had already occurred in which the accused Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 17 of 62 Ahlawat Date:
2024.06.25 17:44:21 +0530 persons injured Ct. Om Prakash and his wireless set was stated to be snatched by the accused persons. Thereafter, SHO arrested the accused Manoj. Accused Manoj disclosed that the wireless set was there near the road to Khera Dabar, near the pond (johad) among the bushes. Thereafter, the accused took them to the spot there the wireless set was found at the instance of the accused. At that time the wireless set was kept amongst the bushes in between two bricks. The wireless set was broken into three pieces i.e. the body, the battery and the antena. The wireless set was thereafter, sealed by SI Praveen by keeping the wireless set in a pullanda made of white cloth, by his seal. The sealed case property was brought to PS and submitted to malkhana. The accused was put to lock up after his medical examination. The witness has identified the wireless set as Ex.PW12/A and its seizure memo as Ex.PW12/B. As PW12 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that the accused Manoj @ Kaira was arrested by the IO SI Praveen Kumar on 22.01.2013 vide arrest memo Ex.PW12/C, personally searched vide personal search memo Ex.PW12/D and recorded his disclosure statement Ex.PW12/E. He stated that the accused Manoj @ Kaira had taken the police staff to the spot of incident where the incident took place on 18.12.2012 and the IO prepared the pointing out memo Ex.PW12/F. In the cross-examination, he stated that he reached at the spot of incident at about 4:30/4:45pm on the day of incident. He had stayed at the spot for about 10 to 15 minutes. He stated that the incident in question did not take place in his presence and there was SBI Bank near the spot of incident however, he did not know whether any CCTV camera was installed outside the said bank or not. He stated that there was a guard deputed at the gate of the said bank but no inquiry was Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 18 of 62 Date:
Ahlawat 2024.06.25 17:44:29 +0530 made by the IO from the said guard. About 60 to 70 public persons were present at the spot when he reached there. The IO did not record the statement of any public person in his presence. No notice was given to any public person by the IO in his presence. There were residential houses located at and near the spot. He stated that there was no specific mark of identification on the wireless set identified by him. The finger print experts were called by the IO, who reached at the spot and took the finger prints from the case property. The said finger prints experts were from DCP Office, Dwarka District. No photography of the case property was done by the finger print experts in his presence. IO did not record the statement of finger prints experts in his presence. The case property was seized by the IO in a white cloth pullanda. He had mentioned that the seal was put on a white colour cloth used to seal the case property and he had mentioned the same as Pullanda. The spot from where the case property/wireless set was recovered was access-able to general public as it was an open public place. The seal of PK was never handed over to him. The seal was submitted to malkahan, however, he did not remember the exact date. The same was submitted to malkhana by the IO. They went to the spot from where the case property was recovered by government gypsy. He did not remember the departure entry number or arrival entry number of the said day.
17. PW13 Kanchan deposed that on 18.12.2012, at about 07:00 pm somebody had injured his uncle (chacha) namely Deepu S/o Ram Das by stabbing him with a knife. Thereafter, PCR vehicle came and Police took the injured to the hospital. On that day, at about 09:15 pm some persons came and pelted stones at his house and Digitally signed Page 19 of 62 Abhinav by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Ahlawat Ahlawat 2024.06.25 Date:
17:44:39 +0530 that the house of his uncle Deepu. After sometime, police personnel reached at the spot, they came out of their houses and he saw that there were stones, pieces of bricks lying in their courtyard and on the road. He saw that one Honda Accord Car which was parked outside the house of Deepu was also damaged in the said stone pelting. After sometime, personnel from crime team also reached at the spot. Thereafter, SI Praveen took the stones and pieces of bricks and kept them in a white plastic sack and sealed the same with his seal. Thereafter, SI Praveen seized the case property and the car (Honda Accord) and thereafter, police left the spot. He stated that it was very foggy at that time, hence, he could not see as to who were pelting stones at their houses. As PW13 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he denied the suggestion that he was deliberately not identifying the accused persons as he had been won over by the accused persons and as he wishes to save them as they were his fellow villagers.
18. PW14 ASI Satish deposed regarding registration of FIR Ex.PW14/A and endorsement of the FIR details upon the said tehrir vide DD no. 2A dated 19.12.2012 Ex.PW14/B.
19. PW15 HC Anish Kumar proved the destruction order bearing no.
5639-41/HAR/DWD dated 29.03.2019 vide which the old record of PS J.P Kalan till 31.12.2015 was destroyed including the Arms and ammunition register of the relevant period Ex.PW15/A (colly).
20. PW16 Inspector Praveen Kumar deposed that on 18.12.2012 at about 09:30 pm, he received the information regarding some Digitally signed FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 20 of 62 by Abhinav Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:44:46 +0530 stone pelting and firing at Village J.P Kalan. Thereafter, he along with Ct. Lokender went to the spot of incident I.e. near SBI Bank, Village J.P. Kalan where they saw that there were stones lying at the spot and one Honda Accord Car of white colour was there in damaged condition. Some police officials of PS J.P. Kalan and public persons were also present there. There, they came to know that Ct. Om Prakash had been injured in the incident who had been taken to the hospital. Thereafter, he left Ct. Lokender at the spot and went to RTRM hospital where Ct. Om Prakash was found under treatment vide MLC no.5529/12. He collected the MLC of the injured Ct. Om Prakash and recorded his statement. Thereafter, he came back to the spot and the crime team was already present at the spot when he reached there. The crime team inspected the spot and photographs of the spot was also taken by the crime team. He received the scene of crime report from the crime team and put the same on record. He prepared a tehrir upon the statement of Ct. Om Prakash Ex.PW16/A and got the FIR registered through Ct. Lokender. He prepared the site plan and seized the stones present at the spot along with the Accord car. The stones and brick pieces were kept in plastic sack which were sealed with the seal of PK. He recorded the statement of the members of the crime team and also of independent public witnesses and other police officials. Thereafter, we brought the case property to the PS and submitted the same at malkhana. Thereafter, on 19.12.2012, a total of six accused persons were arrested from Dhansa border at the instance of eye witness namely Vinod Kumar, they were personally searched and their separate disclosure statements were recorded. He received the mobile bill from the complainant Ct. Om Prakash and he also seized the blood soaked shirt and vest of Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 21 of 62 Date:
Ahlawat 2024.06.25 17:44:56 +0530 the injured. The blood soaked cloth were sealed with the seal of PK in a pullanda and the same were deposited to malkhana. The mobile bill/receipt was already on record, shown to the witness, who correctly identifies the same. Since, the sim which was being used by Ct. Om Prakash in the said mobile phone was issued in the name of his brother in law namely Mitender, said Mitender was also examined and his statement was recorded. He took the certified copies of the Arms and ammunition register of PS J. P. Kalan having the record of wireless set issued to Ct. Om Prakash from the ACP concerned Ex.PW16/B. On 07.01.2013, the accused Pradeep @ Johny and Shiv Kumar @ Bablu surrendered before the Court and they were formally arrested, personally searched and their disclosure statement were recorded. One day PC remand of the accused Pradeep and Shiv Kumar was granted by the Court and the accused persons led them to the spot of incident and pointed out the spot of incident. The pointing out memo was prepared by him. The mobile phone of injured Ct. Om Prakash was got recovered by accused Pradeep Kumar @ Johny from a field which was kept in a pullanda by him and sealed with the seal of PK. The said mobile phone was seized. The wooden danda used in the offence by the accused Shiv Kumar @ Bablu was got recovered by him from a field besides the main Dhansa Najafgarh road which was seized. Thereafter, both the accused persons were sent to JC by the Court. On 22.01.2013, the accused Manoj @ Kaira was formally arrested at Dwarka Court Complex when he surrendered before the Court, he was personally searched and his disclosure statement was recorded. The accused was sent on one day police custody by the Court. Thereafter, accused Manoj @ Kaira took them to the spot of incident and pointed out towards the spot. He prepared the pointing out memo Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 22 of 62 Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:45:04 +0530 and he led them to a pond and from there he got recovered the wireless set of the complainant Ct. Om Prakash which was kept in the bushes underneeth two bricks. The case property was submitted to malkhana. The accused was produced before the Court who was sent to JC by the Court. The remaining accused persons were already granted anticipatory bail by the Court. The witness correctly identified the case property. In the cross- examination, he stated that there was no CCTV camera installed near the spot of incident. He had a smart phone with him at that time. He did not take any photograph by using his smart phone. The uniform of the injured victim was seized by him. No empty cartridge was found at the spot of incident. The call was regarding the firing and quarrel at the spot of incident. The caller of the said call did not met him at the spot of incident. When he reached at the spot there were about 40 to 50 persons present there in various groups. He did not inquire about the incident from those persons. The uniform shirt did not have any name plate of the officer when he seized the same. The uniform/shirt was having blood stains upon the same. I did not collect any blood sample of the complainant. He identified the uniform/shirt and the inner vest before the Court during my examination in chief as the same were in a pullanda sealed by his seal i.e. PK. The seal used by him for seizing the case property was never deposited by him to the malkhana. He did not remember whether he had handed over the said seal after use to any other person or not. He dentified the danda as it bears the details of the FIR. He did not call any finger print expert to the spot for lifting any chance prints from the case property at the time of recovery. The complainant did not give any specific number of wireless set which was allotted to him for his duty. He stated that the Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 23 of 62 Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:45:14 +0530 document on record Ex.PW16/B does not bear any specific number of the QRT wireless set. He identified the wireless set before the Court from the number which was mentioned upon the same and the same was also mentioned by him in the seizure memo at the time of the seizure. He did not verify the receipt/bill of the mobile phone (make Spice). He did not collect any CDR or location of the said mobile phone number at the relevant time. No public person was there at the spot at the time of the recovery of the case property as the spot from where the same was recovered is located outside the residential area of the village. I did not notice any blood stains on the spot of incident when he reached at the spot. He could not identify all the accused persons except Manoj @ Kaira, Shiv Kumar @ Bablu and Pradeep @ Johny. The complainant Om Prakash mentioned names of all the accused persons in his statement recorded by him. The site plan was prepared by me on my own and not upon the instance of any other witness. He did not check the location of the wireless set. He stated that there was a State Bank of India Branch. He did not know if there was a CCTV footage there of if any guard was always there at the branch. There was no unique identification mark on the stone/pieces of bricks. The injuries on the head of Om Prakash were visible. He did not click photographs of the injuries. The bill on record is not photocopy, but original computer print out. He did not prepare site plan of the recovery. He did not know as to whom the fields where recovery took place belonged to. Injured never visited the spot second time. He did not seize the keys of vehicle and they brought the vehicle to PS by pushing. The vehicle was opened at that time. He did not remember if he wrote statement of any witness. The first six arrested persons were arrested from main road at Dhansa Road. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 24 of 62 Date:
Ahlawat 2024.06.25 17:45:23 +0530
21. PW17 ACP Ranjeet Dhaka deposed that the present incident was happened on 18.12.2012 and IO SI Praveen verbally requested for sanction u/S 195 Cr. P. C and accordingly, he gave sanction u/S 195 Cr. P. C. for prosecution of accused persons Ex.PW17/A. At that time, he was working as a SHO PS J. P. Kalan. In the cross-examination, he stated that he gave sanction on 25.07.2013. He did not remember whether he had given sanction in any other case being SHO.
22. On account of admission of accused u/s 294 Cr.P.C, remaining in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
23. Thereafter, before the start of defence evidence in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused persons were recorded on 01.12.2023 without oath under section 281 r/w 313 CrPC, wherein they have stated that they were innocent and had falsely been implicated in the present case. They further stated that they did not want to lead defence evidence.
FINAL ARGUMENTS
24. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
Digitally signed by AbhinavFIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 25 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:45:31 +0530
25. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
26. Per contra, the Ld. Counsel for the accused persons has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is the specific defence as stated by the counsel that all the accused persons are falsely implicated being resident of the same village and there is no evidence on record to show that the acts as alleged against them were committed by them. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence.
27. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard to drive home the guilt of accused.
APPRECIATION OF EVIDENCE & FINDINGS Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 26 of 62 Ahlawat Date:
2024.06.25 17:45:40 +0530
28. The allegations levelled against accused persons are segregated into two parts:
Firstly, that accused persons on 18.12.2012 at about 09:30 pm near Shiv Mandir, Jafarpur Kalan near the house of Ram Dass in prosecution of common object after constituting an unlawful assembly to stop the public servant i.e. Ct. Om Prakash and other police personals after putting them under fear of injury and violence by giving beatings to Ct. Om Prakash and snatched his wireless set and mobile phone by accused Manoj and Pradeep being members of unlawful assembly and in execution of object of the assembly started vandalizing the property as well as Honda Accord car bearing registration no.DL-4CNC-1676 and thereby committed the offences punishable under Sections 147/149/427/394 IPC.
Secondly, on the same date, time and place, accused persons in prosecution of common object of the unlawful assembly caused obstruction to the public servant in discharge of his public function by voluntarily causing assault, using criminal force and hurt to public servant to deter him from performing his duty and thereby committed the offences punishable under Sections 186/332/353/ IPC.
29. Let us deal with the first set of allegations against the accused persons regarding the offence punishable under section 147/149/427/394 IPC. Before delving into the merits of case, it is apposite to delineate the ingredients of the offences for which the accused has been tried.
"147. Punishment for rioting - Whoever is guilty of rioting, shall be punished with imprisonment of either description Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 27 of 62 Date:
Ahlawat 2024.06.25 17:45:56 +0530 for a term which may extend to two years, or with fine, or with both."
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
"427. Mischief causing damage to the amount of 50 rupees or upwards - Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
"394. Voluntarily causing hurt in committing robbery - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
The essence of an offence under section 141 IPC which defines the unlawful assembly is the combination of five or more persons, united in the purpose of committing a criminal offence, and the consensus of purpose is itself an offence distinct from the criminal offence which these persons agree and intend to commit. The law does not declare the mere assemblage of men, however large, illegal. What it requires is that in order to be illegal it must be inspired by an illegal object as specified in section 141 of the Indian Penal Code, 1860. Furthermore, use of force or violence by unlawful assembly or by any of its member in prosecution of Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 28 of 62 Ahlawat Date:
2024.06.25 17:46:07 +0530 the common object of such assembly makes the offence of rioting.
30. The main argument of the Ld. counsel for accused persons is that the accused persons have been falsely implicated in the present case by wrongly invoking the provision of unlawful assembly as there is nothing on record to show that accused persons were even present at the spot.
31. It is the case of the prosecution that PW4 complainant Ct. Omprakash on 18.12.12 at about 9:20 P.M after receiving a PCR call regarding pelting of stones and firing in village Jaffarpur Kalan Delhi went there along with other staff, where he saw that a mob of 50-60 persons having wooden sticks and stones, who were pelting stones towards the house of Deepu S/o Ramdass who was also attacked by knife by one Lalit who is neighbour of Deep and having old enmity with him. Thereafter, when he tried to stop the mob and asked them to disperse, then one Shiv Kumar @ Babloo alongwith mob attacked him and gave beatings to him with wooden sticks and bricks. They had also snatched one wireless set and mobile phone from him. As per the case of complainant the above incident was also witnessed by some other villagers and that he somehow managed to escape from the mob and then he was rushed to RTRM Hospital, Delhi by his fellow police staff.
32. Now what is to be seen is whether the said unlawful assembly was actuated by any common object. For applicability of section 149 IPC, there need not be prior meeting of mind. It is enough that each has the same object in view. The elements of section Digitally signed by Abhinav Abhinav Ahlawat Date: FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 29 of 62 Ahlawat 2024.06.25 17:46:15 +0530 149 are (i) commission of an offence by any member of an unlawful assembly;
(ii) commission of the offence in prosecution of the common object of the unlawful assembly;
(iii) the offence must have been such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object.
It is the contention of all the accused persons is that they were not even part of the unlawful assembly and all of them have contended that they were not even present at the spot.
33. As per the prosecution evidence, PW3 and PW4 went to the spot at about 9:30 pm after receiving the wireless message regarding the quarrel, firing and pelting of stones in village jaffarpur. Both PW3 and PW4 along with Ct. Chand Ram (witness not examined, being dropped from PW list) along with driver Sonu (who is not examined in prosecution evidence) reached in-front of the Bank where stones were being pelted at the house of Deepu. PW1 is the father of Deepu and PW5 is the owner of the other house on which the stones were pelted. Both PW1 and PW5 failed to identify the accused persons involved in the incident of pelting of stones and further acts.
34. Further none of the prosecution witnesses that is PW2, PW6, PW7, PW8, PW11, PW12, PW13, IO PW16 were able to identify any of the accused persons during their testimony as they were not present when the alleged incident happened and arrived at the spot afterwards. Interestingly, PW2 Ct. Rajesh who himself is the police official stated that he did not see any such incident happening when he came to the spot after finishing his duty of the day. Even the complainant PW4 could only identify accused Digitally signed by Abhinav Abhinav Ahlawat Date: Ahlawat 2024.06.25 FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 30 of 62 17:46:33 +0530 Shiv Kumar, Manoj and Jhony and stated in his cross examination that he was not able to identify the other accused as the matter pertained to the year 2012.
The point which needs to be taken note of the fact is that complainant/PW4 had mentioned the name of all 25 accused persons by name in his complaint/statement Ex. PW4/A. Furthermore, PW4 admitted in his cross examination that accused Shiv Kumar and 2-3 accused persons were known to him as he had seen them at the police station during his posting at the police station and that there were other cases also pending against these accused persons.
35. Furthermore, PW1 Ramdass at who's residence the incident of stone pelting had happened, stated in his testimony that when after the incident of stabbing on the stomach of his son, he had called police 100 number from his mobile phone and PCR came at the spot and he, along with his son, went to RTRM hospital, where treatment was given to his son and that after sometime, at about 12 midnight, when he returned at his house, he came to know about the incident of stone pelting had happened at his and the residence of his nephew Vinod and that he could not say as to who were the assailants of stone pelting and as to who had caused damage to the car, as he was not present there.
Interestingly, complainant/PW4 in his cross examination stated that PW1 Ramdas only came to his rescue when he was being attacked by the mob of the stone pelters. These two contradictory versions in the testimony of two prosecution witnesses goes to the root of credibility of the prosecution case and brings shadow of doubt over the entire prosecution version.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 31 of 62 Date:
Ahlawat 2024.06.25 17:46:41 +0530
36. At this stage, it is relevant to mention the case of Ranjit singh Vs. State of Madhya Pradesh, AIR 2011 SC 255, wherein it was stated that, "In a case involving an unlawful assembly with a large number of persons, there is no rule of law that states that there cannot be any conviction on the testimony of sole eyewitness unless that the court is of the view that testimony of such eye witness is not reliable. The rule of requirement of more than one witness applies only in a case where a witness deposes in a general and vague manner or in the case of a riot."
37. In the instant case, only injured PW4 and PW3 have stated about the incident of 40-50 persons being gathered in front of a Bank and pelting stones at the house of Deepu and there is no other witness of the said incident, therefore, it becomes all the more important to scrutinise the testimony of both PW4 and PW3 minutely.
It is a settled law that a group attack on the victim is not a decisive factor to infer common object of the unlawful assembly. Common object has to be ascertained from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Prosecution must prove that the accused was not only a member of unlawful assembly but also shared the common object of the said assembly at all the crucial stages. Common object has to be inferred from various factors like the weapons with which the members were armed, their movements, the acts of violence committed by them and from the results thereof.
In the instant case, the members of the unlawful assembly are neither stated to be armed with any kinds of deadly weapons and the only version which has come from both PW3 and PW4 is that 40-50 persons had gathered and they were pelting stones at Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 32 of 62 Date:
Ahlawat 2024.06.25 17:46:49 +0530 the house of Deepu. The motive in the case also became important and the prosecution should have established that the unlawful assembly consisting of all the accused persons wanted to pelt stones and caused damage for some reason. There is nothing on record to establish the reason for which stones were being pelted at the house of Deepu.
38. It would be profitable to mention the case of Baladin and Ors. v.
State of Uttar Pradesh AIR 1956 SC 181, wherein the Supreme Court observed as under:
"It would thus appear that the place of occurrence is surrounded on all the sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in prosecution of the common object of the unlawful assembly."
Furthermore, while an overt act may not be necessary, mere presence does not make the person a member of the unlawful assembly and there should be something more to show that the accused shared a common object with the other members of the unlawful assembly or there was a community of common object. Also, as held in Rajendra Shantaram Todankar v. State of Maharashtra & Ors. AIR 2003 SUPREME COURT 1110, 2003 (2) SCC 257, that, "where the localities to which the accused persons, the deceased and the witnesses belonged were adjoining each other, it was held that the presence of the accused persons at the place of incidence was natural."
39. Therefore, as settled by the Hon'ble Supreme Court that the Courts must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 33 of 62 Date:
Ahlawat 2024.06.25 17:46:57 +0530 assembly and it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages and further the Court must have before it some materials to form an opinion that the accused shared common object. Thus, as observed in Baladin's case (supra) "this kind of omnibus evidence naturally has to be very closely scrutinized in order to eliminate all chances of false or mistaken implication".
40. In the present case, injured/complainant PW4 have only named accused Shiv Kumar, Manoj and Jhony to have used force and violence against him while being member of the unlawful assembly and he was unable to identify other members of unlawful assembly as the incident was old despite naming other accused person by name in his statement. Similarly, PW3 in his testimony stated that he recognized all accused persons by face and not by name, however, when Ld. APP sought permission to cross examine PW3 he identified accused Manoj and Pradeep @Jhoney to be the person who snatched the wireless set and mobile phone of PW4. PW3 categorically stated that he could not tell who gave danda blow to PW4 and who were pelting stones upon PW4.
Interestingly, PW3 in his cross examination stated that he did not try to call from his mobile phone for calling the reinforcement. Now, it becomes disbelieving as why the police official who is accompanying the other police official who is under attack by accused persons not take action to intervene or to take steps to immediately call for help and reinforcements. Also, said PW3 did not sustain any injury in the said act whereas as per the case of prosecution the group of 40-50 persons had stated that Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 34 of 62 Date:
Ahlawat 2024.06.25 17:47:06 +0530 "chalo hum inko pehle dekhlete hain" when both PW3 and PW4 went to the spot. These contradictions and inconsistencies make the version of the prosecution doubtful.
41. Furthermore, there is no material or evidence which was procured during the investigation to show as to what was the main objective with which the five or more persons had gathered there and what would have been the reason of pelting of stones and causing damage to the vehicle. Nothing is no record to point as to what was the common purpose of the persons gathered there. The initial complaint and information to the police regarding stabbing incident, where after the present incident of stone pelting happened, however, there is no material which connects as to whether both the incidents were connected with each other and as to why the incident of stone pelting happened.
In the absence of any such incriminating material the assembly of persons, be it 40 to 50 persons, or the present charge-sheeted accused person cannot be termed as unlawful assembly.
42. Furthermore, as per prosecution version the accused persons had robbed the mobile phone and wireless set from the injured PW4 who stated that when he tried to inform about the incident through wireless set accused Manoj snatched his wireless set and when he tried calling through his mobile phone, accused Jhoney snatched his mobile phone. Also, PW3 who was accompanying PW3 stated that accused Manoj and Pradeep @ Jhoney snatched wireless set and mobile phone of PW4.
43. During the investigation, IO PW16 received the bill of the snatched mobile phone from the complainant and also took the certified copies of the arms and ammunition register of PS J P Kalan which is Ex. PW16/B. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 35 of 62 Ahlawat Date:
2024.06.25 17:47:13 +0530 It is the case of the prosecution that accused Manoj @ Kaira upon being arrested in the present case who gave a disclosure statement Ex. PW12/E upon which the wireless set was recovered by IO vide seizure memo Ex.PW12/B from the bushes near the road leading towards the pond of the village kept below the two bricks which bears the signatures of attesting witness PW12 Ct. Inderpal. Similarly, accused Pradeep @ Joney upon being arrested in the present case who gave a disclosure statement Ex.PW11/F upon which the mobile phone was recovered by IO vide seizure memo Ex.PW11/H from the agricultural field from the road leading to Surhera Village which bears the signatures of attesting witness PW11.
44. Before dealing with the aspect of recovery of article after the recording of disclosure statement of the accused, it is important to lay down the law governing the same. Section 27 of Evidence Act, read as under, "27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
45. This section is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only:
(i) if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and
(ii) if the information relates distinctly to the fact discovered.
46. The broad ground for not admitting confessions made to a police officer under inducement, threat or promise is the danger of Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 36 of 62 Date:
Ahlawat 2024.06.25 17:47:21 +0530 admitting false confessions; but the necessity for the exclusion disappears in a case provided for by this section when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given. The object of this section is to admit evidence which is relevant to the matter under inquiry, namely, the guilt of the accused, and not to admit evidence which is not relevant to that matter. The discovery of a material object is of no relevancy to the question whether the accused is guilty of the offence charged against him, unless it is connected with the offence. It is, therefore, the connection of the thing discovered which renders its discovery a relevant fact. The connection between the offence and the thing discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of the connection by the statement itself. Reliance can be placed on the judgment of Hon'ble Supreme Court as held in the judgment of Bijender @ Mandar vs State Of Haryana CRIMINAL APPEAL NO. 2438 OF 2010, as held in 2021., wherein it was held that, It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. Vijay Thakur vs. State of Himachal Pradesh, (2014) 14 SCC 609 We may hasten to add those circumstances such as
(i) the period of interval between the malfeasance and the disclosure;
(ii) commonality of the recovered object and its availability in the market;
(iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object;
(v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery.
Digitally signed by AbhinavFIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 37 of 62 Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:47:28 +0530
47. Further, in the latest case of Ramanad @ Nandlal Bharti vs. State of Bihar, Criminal Appeal No. 64-65 of 2022, three judge Bench of the Hon'ble Supreme Court held as under in para 53, "If it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence.
When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden.
Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama.
This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
48. Let us see if the disclosure statement of the accused Manoj @ Kaira and Pradeep Kumar @ Joney was recorded as per the aforesaid guidelines as laid down by the Hon'ble Supreme Court. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 38 of 62 Ahlawat Date:
2024.06.25 17:47:36 +0530 It is pertinent to highlight here that the wireless set was taken into police custody vide seizure memo dated 22.01.2013 after recording of the disclosure statement of the accused Manoj on the same date whereas the alleged date of incident is 18.12.2012. Similarly, the mobile phone as snatched from PW4 was taken into police custody vide seizure memo dated 07.01.2013 after recording of the disclosure statement of the accused Pradeep @ Joney on the same date whereas the alleged date of incident is 18.12.2012. Recovery of the abovesaid wireless set from accused Manoj @ Kaira and mobile phone from accused Pradeep @ Joney based upon their disclosure statements are tainted with infirmities. There are a number of reasons for discarding the evidence of the discovery which are as follows.
(a) no independent witness, be it any villager near the pond from where accused Manoj got recovered the wireless set or the owner of the field from where accused Pradeep got recovered the mobile phone other person apart from the police personals were made part of the recovery process. Further, IO PW16 stated in his cross-examination that he did not call any finger print expert to the spot for lifting any chance print from the case property at the time of recovery. IO further stated that the spot from where the case property was recovered is a common public place which is accessible to everyone.
(b) non-recording of the DD entries, whenever the accused Manoj and Pradeep were taken for the recovery of articles. It is admitted fact that both the recoveries were effected after recording of disclosure statements of both accused on their same respective dates whereas as per the arrest memo both accused Manoj and Pradeep were arrested from Dwarka Court Complex as per their respective arrest memos Ex.PW12/C and Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 39 of 62 Date:
Ahlawat 2024.06.25 17:47:46 +0530 Ex.PW11/B. Although, distance between Dwarka Court Complex and Village Jaffarpur is about 30 km and recovery could be effected on the same date, however, no time is mentioned regarding the recovery proceedings nor there is any recording of any DD entry qua taking of accused persons.
At this stage, it is worthwhile to mention the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses as no such record is no record. Also, the relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the instant case, it should be noted that the prosecution has not filed on record any document showing departure of the police officials for taking the accused persons for recovery proceedings.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 40 of 62 Ahlawat Date:
2024.06.25 17:47:57 +0530
(c) no seal handing over memo prepared after the recovery of the articles in question. IO PW16 stated that after preparing the pullanda of the mobile phone from accused Pradeep @ Joney on 07.01.2013 and wireless set from accused Manoj on 22.01.2013, both were sealed with the seal of PK. Later on, submitted to malkhana. However, in his cross-examination IO PW16 Praveen Kumar stated that the seal used by him for seizing the case property was never deposited to the malkhana and that he did not remember whether he had handed over the same after use to anyone. In such a factual backdrop, since the seal was never submitted in malkhana and it remained with IO PW16 i.e. the police official of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. It is relevant to highlight the judgment of Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."Digitally signed by Abhinav
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 41 of 62 Abhinav Ahlawat Ahlawat Date:
2024.06.25 17:48:04 +0530 Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out. In all, as the discovery of alleged wireless set and mobile phone upon the disclosure statement of the accused Manoj and Pradeep are tainted with infirmities and the same are deficient. Since all the witnesses are police personnels and the necessary safeguards in the investigation has not been followed by the IO, Court is of the view that chances of false implication of offence cannot be ruled out at the instance of the police.
49. Furthermore, IO PW16 stated in his cross-examination that there was no specific number on the QRT wireless set as mentioned on the record Ex.PW16B which could have tallied with recovered wireless set. As per the certified copy Ex.PW16/B mentioning the allotment of QRT wireless set to PW4 Ct. Om Prakash there is no specific details of QRT wireless set (be it model number or colour or other ID marks) whereas as per the seizure memo Ex.PW12/B the wireless set which was recovered was Motorola ATS 2500. Therefore, there is no way to show whether the recovered wireless set was the same device which was being allotted to PW4 Ct. Om Prakash which was allegedly snatched by accused Manoj @ Kaira.
Similarly, the mobile phone Spice D 5555 as allegedly recovered from accused Pradeep @ Joney bearing IMEI no.910040840194455 (both CDMA and GSM enabled) as per the case of prosecution belonging to PW4 Ct. Om Prakash. During investigation, IO seized the purchase receipt Ex.PW4/D as handed over by complainant PW4. Perusal of the said receipt reveals that the same is a cash receipt and it does not contain any detail apart from the description as stated as SP 5555. There is no detail mentioned on the said cash receipt of the product for which Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 42 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:48:12 +0530 the said receipt was generated. It does not even mention whether the product was a mobile phone, let alone mentioning of the IMEI number. Therefore, there is no way to show whether the recovered mobile phone set was the same device which was being purchased by PW4 Ct. Om Prakash which was allegedly snatched by accused Pradeep Kumar @ Joney.
50. When both the recovered articles do not match with the article to have been allegedly robbed from the complainant, then a reasonable doubt arises as to whether they are the same article or not and prosecution evidence is deficient in this regard. In light of the above stated legal position, the documentary evidence adduced by prosecution which suffers from serious infirmities and thereby adds up to the pile of contradictions emerging in the prosecution case, thereby leading to the irresistible conclusion that the recovery of the alleged snatched articles is not established and both the accused Pradeep and Manoj are entitled to benefit of doubt.
51. Furthermore, when the presence of accused person being member of unlawful assembly having a common object is not established as discussed in the preceding paragraphs, nothing specifically can be imputed upon the accused persons to have caused damage to the car being damaged as there is not an iota of evidence in the form of eye witness or otherwise who saw any person damaging the car bearing number DL-4CNC-1676. Thereby the prosecution had miserably failed to prove the allegations of offence punishable under Sections 147/149/427/394 IPC.
52. The second set of allegations against the accused persons revolves around commission of offences u/s 186/332/353 IPC wherein all the accused persons are charged for causing hurt to public servant Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 43 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:48:19 +0530 for obstructing him in discharge of his official functions. The relevant provisions are as under:
"186. Obstructing public servant in discharge of public functions. -- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
"332. Voluntarily causing hurt to a public person while discharging his official duty.- It reads as under: "Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public ser ant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
"353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
53. The import of the above sections is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in Durgacharan Naik & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court in the following words:-
"5. It is true that most of the allegations in this case upon which the charge under Section 353, Indian Penal Code is Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 44 of 62 Date:
Ahlawat 2024.06.25 17:48:27 +0530 based are the same as those constituting the charge under Section. 186, Indian Penal Code but it cannot be ignored that Sections 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct.
Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary.
The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with contempts of the lawful authority of public servants, while Section 353 occurs in Ch. XVI regarding the offences affecting the human body."
54. First and foremost, it is the submission of the Ld. defence counsel that the cognizance in the present case has been wrongly taken as the sanction from the concerned public servant was not obtained and that the person who had moved the complaint was not competent to give the said complaint as per the provision of the Crpc. At the outset, the relevant portion of Section 195 of Cr. P.C. is reproduced herein-under for reference:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance--
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Penal Code, 1860, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"Digitally signed by Abhinav
Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 45 of 62 Date:
Ahlawat 2024.06.25 17:48:33 +0530
55. Now, it is a general condition to initiate prosecution u/s 186 IPC to see that the complaint is filed under Section 195 Cr. P. C. by the concerned public servant or his supervisor officer to whom he is subordinate. It is also not possible to bypass the requirement of Section 195 Cr. P. C. At this stage it is worthwhile to highlight the recent case of Santokh Singh Chawla v. State (NCT of Delhi), 2023 SCC OnLine Del 4773, where in Hon'ble Delhi High Court held that,
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr. P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
56. Also, as held in case of Gurucharan Singh Arora v. The State, (2002) 96 DLT 181, relevant observations of which read as under:
"5. ...In order to appreciate the rival contentions, it would be appropriate to quote relevant portion of complaint. It reads:
--
"I Sh. G.L. Mehta, Inspector, SHO, P.S. Patel Nagar, Delhi in pursuance of Section'195 Cr. P.C. hereby give consent to prosecution (1) Gurcharan Singh Arora S/o Jagaj Nath Arora R/o G-29, Bali Nagar, Delhi, FIR No. 557/93, under Section186/332/353/506/34 IPC and 185 & 39/192 M.V. Act, P.S. Patel Nagar, Delhi & (2) Gaurav Arora S/o gurcharan Singh Arora r/o G-29, Gali Nagar, Delhi under Section 186/332/353/506/34 IPCvide case FIR No. 557/93, P.S. Patel Nagar, Delhi."
6. Section 2(d) of Cr. P.C. defines the complaint to mean any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but Abhinav Digitally signed by Abhinav Ahlawat Page 46 of 62 Date:
FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Ahlawat 2024.06.25 17:48:40 +0530 does not include a police report. It is true that no particular form is prescribed in which the complaint should be made and the substance of the complaint that is to be read. It is not necessary that it should categorise elements of the offence to be charged. It is enough that the facts alleged should constitute an offence for which the accused is charged. It does not matter even if the complainant quotes wrong Sections. The complaint is meant to put the machinery of law in motion. Whether allegations were made with a view to take action against the accused would depend upon the facts and circumstances of each case.
7. In this case, there was nothing in the complaint quoted above to indicate that the complaint was made to the Magistrate for taking action under Section 186 IPC. Mere consent of the SHO for prosecution of the accused cannot be construed as the complaint. Further, there is nothing on record to indicate that the cognizance was taken by the Magistrate on the basis of the complaint under Section 195 Cr. P.C. Therefore, the charge under Section 186 IPC against the petitioner is not sustainable. It is needless to observe that in all such cases, the complaint should be filed by the concerned public servant with a prayer to take action against the accused and whenever such complaint under Section 195 Cr. P.C. is filed along with charge-sheet under Section 173 Cr. P.C., the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage..."
57. In the instant case, the complaint under section 195 Cr.PC was made by the then SHO PS J P Kalan as addressed to the Court. The relevant paragraph is reproduced as under:
Now, therefore, I Inspr. Ranjeet Dhaka, Station House Officer, PS Jaffarpur Kalan, New Delhi hereby make this complaint U/s 195 Cr.P.C for prosecution of the above said accused person in the aforesaid case.
It is therefore, requested that Hon'ble court may please prosecute the above said accused persons in this case. As due to pre-occupations in the official duties, I cannot attend the Hon'ble Court on each and every date of hearing in this case. It is therefore requested that I may be exempted from personal hearing in the court and APP attached to the Hon'ble Court may kindly be permitted to pursue the case, in lieu of the undersigned. Digitally signed by Abhinav Abhinav Ahlawat Date:
Ahlawat 2024.06.25 FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 47 of 62 17:48:48 +0530 As per PW17 ACP Rajneet Dhaka, who was then Inspector PS J. P. Kalan stated that on the verbal request of SI Parveen for prosecution of accused persons, he gave sanction for prosecution as per section 195 crpc. It is pertinent to mention here that PW17 gave sanction Ex.PW17/A on 25.07.2013 for the incident which allegedly happened on 18.12.2012. He further admitted that he did not remember whether he had given sanction in any other case being SHO. Now the important point to be scrutinize is whether sanction under Section 195 Cr. P. C. can be granted by SHO of Police Station and whether sanction Ex.PW17/A is valid as per law. Interestingly, PW17 was never cited as a prosecution witness in the prosecution list and he was only called for examination on the application moved by Ld. APP under Section 311 Cr. P. C.
58. Cognizance was taken in the present case once the chargesheet along with the complaint under section 195 Cr.PC was moved by the public servant before the Court. Therefore, there is due compliance of the provision of section 195 Cr.PC as the complaint containing the allegations against the accused persons along with the material was brought on record before the Court at the time of filing of the chargesheet. Therefore, there is no merit in the submission of the Ld. Counsel for accused persons that cognizance was wrongly taken in the present case.
59. Moving further, in the instant case, the Court is posed with following questions for determination to adjudge the veracity of prosecution case: -
(a)whether the complainant namely PW4 Ct. Om Prakash was a public servant at the time of alleged commission of offences in question?Digitally signed by Abhinav
Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 48 of 62 Date:
Ahlawat 2024.06.25 17:48:56 +0530
(b) whether the said person was acting in discharge of his public functions assigned to him?
(c) whether any obstruction or deterrence was caused to the said person in the discharge of his public functions by the act of accused persons?
(c.i) for the purpose of Section 186 IPC , whether the complaint was filed before this court u/S 195 Cr.P.C?
(c.ii) for the purpose of Section 353 IPC, whether the accused had assaulted or used any criminal force to the said person during the execution of his duties?
60. There must be some act or physical means used to constitute voluntary obstruction as it has been held in number of judgments there must be an overt act which could justify conviction under Section 186 IPC. In the present case it is the version of the complainant PW4 HC Om Prakash and PW3 HC Sat Narayan who alongwith Ct. Chand Ram (not examined by the prosecution) that when they received information to reach village J. P. Kalan regarding the incident of firing and stone pelting and they in their quick response QRT van reached at the village at 09:30 pm and when they reached there near Shiv Mandir Opposite SBI Bank, there were some persons who were pelting stones at the house of Deepu. Complainant however, stated that when he de-boarded his car and tried to pacify them, then out of that crowd one accused Shiv Kumar @ Bablu said to him that "Tum police wale yahan se chale jao, hum apne aap dekh lege ". He again tried to make them understand and accused persons said that "police walo ko hi dekh lete hai ". It is the version of the complainant there were 15-20 accused persons out of the said crowd started pelting stones on him started beating him with the help of a danda. Here, it is clear that PW3 alongwith PW4 who Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 49 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:49:11 +0530 both are police officials reached at the spot and try to pacify the crowd there near the house of Deepu and as one of the duty of police official is to maintain peace and order, therefore, the act of the complainant PW4 and PW3 can be stated to be the in discharge of their legal duty.
61. Now the question is whether prosecution by way of examining PW4 and PW3 are able to establish their presence at the spot alongwith accused persons and whether accused persons committed any obstruction in discharge of their public duty and whether accused persons voluntarily caused hurt or assaulted them.
All the accused persons have not led any defence evidence, however, during the recording of statement u/S 313 Cr. P. C. all of them stated that they were not present there at the time of alleged incident. Although the Court is aware of the fact that the statement made by the accused persons without oath during recording their statement under Section 313 Cr. P. C. is not proof. At this juncture, this court seeks to rely on the following observations of the Hon'ble High Court of Bombay in the case of State of Maharashtra Vs. Alister Anthony Pareira 2007 SCC OnLine Bom 1489 (and further affirmed by Hon'ble Apex Court in appeal) as regards the use of statement made by accused without oath during the stage of Section 313 Cr.P.C:-
"While rejecting this contention we would also observe that he admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 50 of 62 Abhinav Ahlawat Date: Ahlawat 2024.06.25 17:49:20 +0530 untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line."
62. Needless to mention that it is the primary duty of prosecution before the onus can be shifted upon the accused. The photographs of the scene of crime Ex.P8 (colly) showcases the stones scattered in or around the spot and one Honda Accord car being damaged. Perusal of testimony of PW1 Ram Dass, the only private public witness, reveals that he was neither present at the spot at the time of incident in question of stone pelting nor he witnessed anything and he arrived after the incident and thereby he did not identify any accused person. Although PW1 was cross examined by Ld. APP but nothing substantial came out of his testimony neither he is the complainant. None of the private witnesses examined by the prosecution were able to identify any of the accused persons or stated to have witness stone-pelting by the accused persons, thereby they have not been able to establish the presence of not only the accused persons but also of the police officials that is PW3 and PW4.
63. As offence under section 186/332/353/ IPC is essentially against the public servant, therefore, the crucial testimony to be examined is of both PW3 and complainant PW4 only. Perusal of their testimonies reveals certain inconsistencies which makes the prosecution case unworthy and unbelievable. These are as follows:
63.1 Firstly, the Criminal law was set in motion upon the statement of PW4 Ct. Om Prakash who gave his statement mentioning the details of incident and name of all the accused persons along with name of their fathers in his statement Ex.
PW4/A whereafter the rukka Ex. PW16/A was recorded. Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 51 of 62 Date:
Ahlawat 2024.06.25 17:49:30 +0530 Whereas when Ct. Om Prakash deposed as PW4 he failed to name all the accused persons except the name of three persons stating that due to lapse of time he forgot the names. Although it is quite natural that with the lapse of time, the name and the parentage of persons gets faded, however it is also quite interesting that when PW4 made his statement regarding the incident, he named all the accused persons along with the name of their father as if he knew all of them. This anomaly creates serious doubt in the version of the complainant regarding the accused being present at the spot or whether they have been named only for being implicated in the case, and whether they had committed any incident or not. Furthermore, PW4 also wrongly mentioned the date of incident during his testimony as 08.12.2012 whereas the correct date was 18.12.2012. Further, PW4 in his testimony stated that he got the wireless device and the arms issued before proceeding to the spot of incident.
However, no such DD entry record has been brought on record during the prosecution evidence to substantiate the said fact.
63.2 Secondly, as per statement of PW4, he sustained injuries when accused Shiv Kumar hit him and thereafter, he became unconscious. However, during his cross-examination he explained that he was wearing his uniform and that he was wearing the same at the time of medical examination as well. But what comes out from the examination of other witnesses i.e. IO PW16 Inspector Praveen Kumar and PW10 Dr. Bikash Sinha who stated that the said blood-stained uniform of PW4 was not seized by the doctor at the time of medical examination but the same was seized by PW16.
Digitally signed by AbhinavAbhinav Ahlawat Date: Ahlawat 2024.06.25 FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 52 of 62 17:49:38 +0530 Interestingly, PW4 stated that he became unconscious whereas treating doctor PW10 stated that PW4 was very much conscious and no blood sustained uniform was seized by him. Further PW8 HC Lokender stated in his cross-examination that he had not seen any blood stains at the spot while his stay for about seven hours. It is unexplained as to why the blood stained uniform, if any, was not seized by the treating doctor as injured was taken to the hospital and as to why the IO seized the same before the medical examination and never took any efforts to obtain the blood sample from the said seized uniform. Furthermore, apart from the uniform there is no other unique ID mark or name plate seized to establish as to whether the same uniform was belonging to PW4 or not.
63.3 Thirdly, the uniform of the injured Ex.P9 seized by the IO bearing his seal and as per the PW16 he never deposited his seal in the malkhana. Here, it if profitable to mention the case as decided by Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"While rejecting this contention we would also observe that he admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line."
Therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. Thereby Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 53 of 62 Abhinav Ahlawat Date: Ahlawat 2024.06.25 17:49:46 +0530 the circumstances under which the seal was obtained and used is under a shadow of doubt. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
63.4 Fourthly, the medical opinion regarding the nature of weapon used for causing injury to the complainant would have helped in explaining how the injuries were sustained by the complainant. Even the examination of the blood-soaked uniform of complainant would have helped in establishing the fact whether the blood on uniform with blood on danda or any stone were of the complainant or not. Failure to produce the expert opinion in such a case affects the creditworthiness of the prosecution case. However, no such evidences were placed on record by the prosecution for the reasons best known to them. At this stage it is worthwhile to mention the case as held by Hon'ble Supreme Court, in Mohinder Singh v.State [(1950) SCR 821], wherein it was held that:-
41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused;
63.5 Fifthly, Court is conscious of the law on the point of injured eye witness which can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 54 of 62 Date:
Ahlawat 2024.06.25 17:49:54 +0530 for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. For an eye-witness to be believed, his evidence, it has been held, should be of sterling quality. It should be capable of being taken at face value. The principle has been discussed in Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi) as follows-
"22. In our considered opinion, the "sterling witness" should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 55 of 62 Ahlawat Date:
2024.06.25 17:50:02 +0530 sieve the other supporting material for holding the offender guilty of the charge alleged.
In the present case, the fact that complainant being a police official and the circumstances under which he sustained injures is under a cloud of doubt, therefore, it becomes all the more important to scrutinize the testimony of complainant. As already held, there is no direct witness or evidence to show that accused caused harm or caused injury to the complainant except the version of the complainant himself. As discussed above, even the presence of the complainant as a public servant at the spot of incident is not established by the prosecution beyond doubt, therefore, in the absence of corroborative evidence, the act of injuries being given by accused to complainant is not established beyond doubt.
63.6 Sixthly, as per the case of prosecution initially a mob of 15- 20 persons gathered at RTRM Hospital and thereafter, they moved towards the house of PW1 Ram Dass where the incident of stone pelting happened causing injury to police officials. It is vehemently argued by the counsel for accused persons that both hospital and PS are located side by side and there is no reason forthcoming from the investigating agency as to why CCTV footage of both the places i.e. hospital and Police Station were not seized. Furthermore, it has been argued that the house of accused Dharampal which is near the SBI Bank is located near the house of PW1 where the incident of stone pelting took place.
Even the CCTV footage of SBI Bank was not collected which could have lend credence to the version of prosecution that mob of 40-50 people had gathered at the house of PW1 Ram Dass.
Digitally signed by AbhinavAbhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 56 of 62 Date:
Ahlawat 2024.06.25 17:50:10 +0530 At this stage, it is profitable to state that amongst the various rules of evidence that have developed over the course of time, the rule of best evidence is one of the foundation stones on which our criminal justice system rests. This rule gains immense prominence in criminal trials, as under the Indian criminal justice system, an accused is considered to be innocent until proven guilty and the guilt of the accused has to be proved beyond reasonable doubt and not on a mere preponderance of probabilities, thus imposing upon the prosecution the obligation to adduce the best possible evidence to prove the guilt of the accused. The rule has been defined to mean " so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it ." In the case of Mohanlal Shamji Soni v. Union of India & Anr., it has been held by the Supreme Court that, "...it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue."
While a duty is cast upon the Courts to arrive at the truth by all means possible, a duty is also cast upon the parties to come to Court with clean hands, i.e. to make a complete disclosure without suppression of any material facts/evidence. In proving the guilt of an accused, the investigating agencies are duty bound to collect the best possible evidence to prove an alleged fact or circumstance leading to the commission of the offence. A failure to lead the best evidence thus makes the prosecution vulnerable to an adverse inference being drawn against it, as such failure amounts to suppression of the best evidence. The principle behind adverse inference being drawn is based on a simple and obvious question that the Court will pose to itself, why would the Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 57 of 62 Ahlawat Date:
2024.06.25 17:50:18 +0530 prosecution not lead the best evidence available to establish it case? Thus, the inference is grounded in the assumption that the best evidence is not relied upon as it may be detrimental to the prosecution's case and may benefit the accused.
In the instant case, as admittedly, despite the availability of SBI bank near the alleged gathering of 40-50 persons for the purpose of stone pelting, investigation is completely silent as to why efforts were not made to procure the footage of the camera installed at the said bank. Further, it is usual practise that such banks are guarded by a security guard round the clock and investigation is absolutely silent as to why the security guard, if any of the said bank, was not joined in the investigation. Furthermore, investigation is also not done to show whether there were public persons also present apart from the accused persons implicated in the present case. Furthermore, the alleged incident of stone pelting happened on two houses but for reasons best known to the IO, the family members of both the houses were not joined in the investigation who could have shed more light as to why and who committed the act stone pelting.
63.7 further, both PW3 HC Satnarayan and PW4 HC Omprakash stated that they both reached the spot of incident in the vehicle driven by private driver namely Sonu. Even PW10 Dr. Bikash stated in his testimony that the said driver had brought injured police to the hospital but again for reasons best known to IO the said private independent witness was never cited as witness nor examined by the prosecution.
81. Taking into account the infirmities as stated above in the version as put forward in the testimony of PW3 and PW4, a doubt is Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 58 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:50:26 +0530 certainly created whether PW4 was restrained by the accused persons. In the absence of any corroborating material the testimony of the complainant does not inspire any confidence, thereby in cumulative making the case of complainant highly suspicious. It is relevant to mention the findings given by Hon'ble Apex Court in case titled as Inder Singh v. State (Delhi Admn.) (1978) 4 SCC 161, which are as follows: -
"A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation".
In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361, the Court observed thus:
"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584."Digitally signed by Abhinav
Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 59 of 62 Date:
Ahlawat 2024.06.25 17:50:33 +0530
82. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the Court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises.
83. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence, the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the Court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.
CONCLUSION:
84. From the above resume of evidence, the following inference of fact naturally follows that numerous contradictions and inconsistencies have borne from record and testimony of the Digitally signed by Abhinav Abhinav Ahlawat FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 60 of 62 Date:
Ahlawat 2024.06.25 17:50:41 +0530 main witness namely PW4, rendering such witness to be unreliable and undependable. As discussed in the preceding paragraphs, prosecution miserably failed to establish by way of cogent evidence that accused persons were part of unlawful assembly and further that accused persons being part of unlawful assembly in prosecution of their common object restrained PW4 and gave beatings to him. Prosecution failed to establish that injury was sustained by police official PW4 by the hands of accused Shiv Kumar and that snatching of the articles of PW4 was done by accused Manoj or accused Jhony and the same was not proved beyond doubt. Version of the injured PW4 suffers from various inconsistencies, which casts doubt on the credibility of the testimony of the injured. As discussed in the preceding paragraphs, even the recovery of the articles from the accused persons is not proved by the prosecution, entitling the accused persons to the benefit of doubt.
85. The upshot of the foregoing discussion is that the prosecution has failed to establish the charge of Section 147/149/427/394 IPC and section 186/332/353/ IPC owing to absence of any inculpatory act on the part of accused persons and as the basic ingredients of the offences have not been proved by prosecution.
The inescapable conclusion is that the accused persons are entitled to benefit of doubt.
86. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, accused Manoj Kumar @ Kaira, Shri Krishan @ Hariyal, Sanjay, Brahm Prakash @ Bhone, Narender Kumar, Mukesh @ Monu, Pradeep Kumar @ Jhoney, Dharampal, Amit Kumar, Dharam Singh, Rishi Pal, Digitally signed by Abhinav FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 61 of 62 Abhinav Ahlawat Date:
Ahlawat 2024.06.25 17:50:50 +0530 Shashi Pal, Subhash, Deepak Yadav, Rajpal, Rampal, Ran Singh, Harpal, Laxman Singh, Ramesh Yadav and Jogender are hereby acquitted of the offences punishable under Sections 147/149/427/394 IPC and section 186/332/353 of Indian Penal Code, 1860.
Announced in the open court on 25.06.2024 in the presence Digitally signed Abhinav by Abhinav Ahlawat of accused persons. Ahlawat Date: 2024.06.25 17:50:57 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/25.06.2024 Note: - This judgment contains 62 pages and each page has been signed by me. Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2024.06.25 17:51:03 +0530 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/25.06.2024 FIR No. 133/2012, PS Jafarpur Kalan State vs. Manoj Kumar @ Kaira Page 62 of 62