Delhi District Court
State vs . (1) Manoj Kaushik @ Monu on 19 February, 2020
FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE03 & SPECIAL JUDGE (COMPANIES ACT) : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Registration No. SC/441350/2016 CNR No. DLSW010055302016 State Vs. (1) Manoj Kaushik @ Monu S/o Sh.Ram Singh R/o H.No.58CZ Block, Gali No.3, Paprawat Road, Najafgarh, New Delhi. (2) Sonu @ Mikka S/o Sh. Azad Singh R/o VPO Nandal Tehsil, District Rohtak, Haryana. (3) Mahesh Bhardwaj S/o Sh.Ram Niwas R/o Village Badusarai, Post Office Chhawla, New Delhi. FIR No. : 146/15 Police Station : Chhawla Under Sections : 308/341/34 IPC Date of committal to Sessions Court : 12.08.2016 Date on which judgment was reserved: 14.02.2020 Date on which Judgment pronounced : 19.02.2020 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The above named accused persons were sent to face trial for the offences punishable U/s 323/341/308/34 IPC on the allegations that on State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 1 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 17.03.2015, at about 8.00 a.m. at Chhawla Village, Tazpur Chowk, New Delhi, all three of them, in furtherance of their common intention, had wrongfully restrained complainant/injured Dayanand (PW1) while he was going towards Tajpur and assaulted upon his head with the stick of spade (kassi), as a result of which he received grievous injuries on his head with such intention or knowledge and under such circumstances that if they would have caused the death, they all would have been guilty of culpable homicide not amounting to murder.
2. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 17.03.2015, on receipt of DD No.10A regarding a quarrel at Chhawla village, SI Rajesh Kumar (PW6) went at Chhawla village, where complainant was not found. Thereafter, on receipt of DD No.12A, SI Rajesh Kumar alongwith HC Dharmender (PW2) went to Triveni hospital, where injured/complainant Dayanand (PW1) was found admitted vide MLC No.140/15 with history of physical assault. Accordingly, SI Rajesh Kumar recorded his statement (Ex.PW1/1), wherein he claimed that on 17.03.2015, at about 8:00 am, when he was going towards Tajpur from his house on his Scooty bearing registration No.DL4SCE7950 and reached at crossing of Tajpur, three persons, aged about 2025 years, while sitting on a white colour State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 2 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 motorcycle bearing registration No.DL8SBH7357 make Apache, came from behind and stopped their bike in front of his Scooty and started quarreling with him. When he asked them as to what had happened, then two boys who were armed with stick of spade (kassi), hit the same on his head and other parts of body and the third boy, who was driving the motorcycle, gave him fist and leg blows. On the basis of said statement, FIR U/s 323/341/34 IPC was got registered by SI Rajesh Kumar, who thereafter conducted the investigation of present case;
(ii). During investigation, SI Rajesh Kumar prepared the site plan at the instance of complainant and started searching for the assailants and recorded statements of the witnesses. Thereafter, IO obtained result on MLC of injured, which was opined to be grievous in nature. Accordingly, Section 308 IPC was also added during investigation.
(iii). On 15.04.2015, on receipt of secret information, SI Rajesh reached at Plot no.58C, Z Block, Kashmiri Colony, Gali no.2, Paprawat Road, where accused persons namely Manoj Kaushik @ Monu, Sonu @ Mikka and one Sudhir were found present. Upon interrogation, accused Manoj Kaushik @ Monu and Sonu @ Mikka were arrested in present case. Accused Manoj Kaushik @ Monu got recovered one motorcycle bearing No. DL8SBH7357 from his house, which was used in the commission of crime. He State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 3 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 also got recovered one wooden danda used in commission of offence, the one end of which was broad and its length was found to be 29 ½ inch. The said motorcycle and wooden danda were taken into possession and were seized by IO. Thereafter, upon disclosure of accused Manoj Kaushik @ Monu, IO alongwith said accused persons and his staff went to village Badusarai, where the third accused namely Mahesh Bhardwaj was apprehended at the instance of accused Manoj Kaushik @ Monu. Upon interrogation, accused Mahesh Bhardwaj was also arrested by the IO and his disclosure statement was recorded. The statements of witnesses were obtained and the case property was deposited in malkhana.
(iv). On 16.04.2015, IO produced all the three accused persons before the Court concerned for conducting TIP proceedings but they all refused to participate in their judicial TIP and were sent to JC;
(v). That further investigation was entrusted to ASI Bharat Lal (PW5) and later on, the case file was handed over to ASI Manbir Singh, on the direction of SHO. On completion of the investigation, chargesheet was filed before the Court of Ld. M.M.
3. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 4 of 21FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 CHARGE FRAMED AGAINST THE ACCUSED PERSONS
4. After hearing arguments on the point of charge, Ld. Predecessor of this Court framed charge for the offences punishable U/s 308/341/34 IPC against all three accused persons, vide order dated 06.10.2016, to which they pleaded not guilty and claimed trial.
5. In order to substantiate its case, the prosecution has examined seven witnesses namely PW1 Sh.Dayanand, PW2 HC Dharmender, PW3 Ct.Ram Khilari, PW4 Ct. Bachchu Singh, PW5 ASI Bharat Lal, PW6 SI Rajesh Kumar and PW7 Dr. Tariq Ali Sheikh, during trial.
6. Before proceeding further, it is necessary to note that accused persons made statement during trial on 27.07.2018 that they were not disputing the contents of FIR no.146/15 of PS Chhawla, DD No.10A, DD No.12A, both dated 17.03.2015 and their judicial TIP proceedings and they had no objection in case said prosecution witnesses are not summoned in order to formally prove the said documents. In view of said statements, the relevant prosecution witnesses were dropped from the list of witnesses and the said documents were exhibited as Ex.A1 to Ex.A6.
7. Thereafter, statements U/s 313 Cr.P.C. of all the three accused persons were recorded, during which all the incriminating evidence were put to them. However, they denied the same and claimed that they are State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 5 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 innocent and have been falsely implicated in this case. Their defence is of general denial. All three accused persons, however, did not opt to lead evidence in their defence.
8. I have already heard Sh. Girish Kumar Manhas, Ld. Additional Public Prosecutor on behalf of State and Sh.Neeraj Dahiya, Advocate on for all three accused persons. I have also gone through the material available on record.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record in order to see as to how the prosecution story has been unfolded by them during trial. Their testimonies are detailed as under: PUBLIC WITNESS:
10. PW1 Sh.Dayanand: He is the complainant / victim in this case. He deposed that on 17.03.2015, at about 8:00 a.m., he was going towards Tajpur from his house on Scooty bearing registration No. DL 4SCE7950 and when he reached at the crossing of Tajpur, a motorcycle bearing No.7357, on which three persons, aged about 2025 years, were sitting, came from behind and stopped their bike in front of his Scooty. Two riders alighted from said motorcycle, which was driven by accused Manoj State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 6 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 Kaushik @ Monu, having stick of spade (kassi) and they started assaulting him with the spade on his head, due to which blood started oozing out and his eyes got closed due to bleeding. One passerby came in a car and he took him to Triveni Nursing home at Deenpur, where police recorded his statement Ex.PW1/1. After 23 hours, he was discharged from the hospital after treatment. During investigation, IO prepared site plan Ex.PW1/2 at his instance.
11. At this juncture, it may be noted that PW1 was cross examined on behalf of accused on 15.05.2017 as well as on 01.12.2017, whereafter, he was recalled under Section 311 CrPC vide order dated 01.12.2017 on the request made on behalf of State. During said further examination, he deposed that he was beaten up by two persons by using handle of spade (kassi) and he identified accused Manoj Kaushik and Mahesh @ Amit to be those assailants. He also identified accused Sonu @ Mikka to be the third assailant, who had caused beatings to him by fists and kick blows. He further deposed that the assailants had come on motorcycle No.DL8SBH 7347 make Apache of white colour. At that point of time, he was cross examined by ld. Addl. PP on behalf of State. During said cross examination, he denied the suggestion that he had stated the registration number of motorcycle as DL8SBH7357 to the police. He also denied the suggestion that accused Sonu @ Mikka and Manoj Kaushik had beaten him with handle of spade or that accused Mahesh @ Amit had beaten him with fists State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 7 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 and kick blows or that said motorcycle was being driven by accused Mahesh @ Amit. At that stage, he testified that on 18.03.2015, he had seen CCTV footage of the CCTV cameras installed at the place of incident and identified all these three accused persons to be the actual assailants.
MEDICAL WITNESS:
12. PW7 Dr. Tariq Ali Sheikh: He deposed that on 17.03.2015, patient Dayanand was brought in Treveni hospital by his friend Narender and on examining the said patient, deep blunt cut injury over head (7cm x 5cm), one cut wound on left hand between thumb and index finger and bruise mark all over his body, were found. During treatment, 13 stitches were given on the head and 5 stitches were given on left hand of patient and he opined the nature of injury as grievous vide MLC no.140/15 (Ex.PW7/1).
POLICE WITNESSES
13. PW2 HC Dharmender: On 17.03.2015, he had accompanied IO/SI Rajesh Kumar (PW6) to the place of occurrence on receipt of DD No. 10A. He deposed that injured had already been removed to hospital. On receipt of DD No.12A, he alongwith SI Rajesh Kumar went to Triveni hospital, where injured/complainant Dayanand was found admitted and IO recorded his statement. He had got the FIR registered on the basis of rukka State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 8 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 prepared by IO. Thereafter, IO obtained the ownership details of motorcycle which was found to be registered in the name of accused Manoj Kaushik @ Monu. He alongwith IO went to the house of accused Manoj Kaushik @ Monu, which was found locked and thereafter, IO had prepared the site plan Ex.PW1/2 at the instance of complainant.
14. PW3 Ct. Ram Khilari and PW4 Ct. Bachchu Singh: Both these witnesses had joined investigation with IO SI Rajesh Kumar on 15.04.2015. They deposed that IO had arrested accused persons Manoj Kaushik @ Monu, Sonu @ Mikka and Mahesh Bhardwaj vide memos Ex.PW3/1, Ex.PW3/2 and Ex.PW3/9 respectively and personally searched them vide memos Ex.PW3/3, Ex.PW3/4 and Ex.PW3/10 respectively. All the three accused persons had made disclosure statements Ex.PW3/7, Ex.PW3/8 and Ex.PW3/11 respectively. Accused persons led them to the spot, where pointing out memo Ex.PW3/12 was prepared.
15. PW5 ASI Bharat Lal: He deposed that on 20.04.2016, investigation of the present case was marked to him and when he had gone out of station for about 810, the investigation was handed over to some other IO who conducted the remaining investigation.
16. PW6 SI Rajesh Kumar: He is the main IO of this case. He has deposed about the relevant investigation carried out by him during State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 9 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 investigation. He deposed on identical lines with regard to relevant investigation regarding information about the incident and recording of statement of complainant Ex.PW1/1 carried out on 17.03.2015, as deposed by PW2 HC Dharmender. He further deposed that he made his endorsement Ex.PW6/1 on the rukka and got the FIR registered through PW2. After recording statement of complainant, he obtained the ownership details of the motorcycle from the traffic helpline number, which was found to be registered in the name of Manoj Kaushik @ Monu. He also deposed that on 15.04.2015, he alongwith PW2 and PW3 went to the house of accused Manoj Kaushik @ Monu, where said accused was arrested and was personally searched vide memos Ex.PW3/1 and Ex.PW3/3 respectively. He recorded disclosure statement Ex.PW3/7 of accused Manoj Kaushik, who got recovered one danda, which was seized vide memo Ex.PW3/6 and the aforesaid motorcycle was also seized vide memo Ex.PW3/5. On the same day, he had also arrested and personally searched accused Sonu @ Mikka vide memos Ex.PW3/2 and Ex.PW3/4 respectively and recorded his disclosure statement Ex.PW3/8. Further, he had also arrested accused Mahesh Bhardwaj vide memo Ex.PW3/9 and personally searched him vide memo Ex.PW3/10 and recorded his disclosure statement Ex.PW3/11. He prepared pointing out memo Ex.PW3/12 at the instance of accused persons. On the next day, he produced the accused persons in muffled face, before the Court concerned where all the accused persons refused to participate in TIP proceedings. He not only identified all these three accused persons but also State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 10 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 identified danda (Ex.P1) and recovered motorcycle (Ex.P2) from its photographs (Ex.PW6/2 and Ex.PW6/3) during trial.
ARGUMENTS ADVANCED AND CASE LAW CITED
17. After referring to the testimonies of prosecution witnesses examined during trial, more particularly that of PW1 Dayanand, PW3 Ct. Ram Khiladi and PW6 SI Rajesh Kumar (IO) and the documents proved by them during trial, ld Addl. PP vehemently argued that the prosecution has established the guilt of these three accused persons for the offences charged against them, beyond reasonable doubt. He pointed out that PW1 correctly identified all these three accused persons to be the assailants during his examination conducted on 01.12.2017. He further submitted that PW1 had sustained grievous injuries and this fact is duly established from his MLC (Ex.PW7/1) as well as from the ocular testimony of PW7 Dr. Tariq Ali Sheikh of Treveni Hospital. He, therefore, urged that accused persons should be convicted in this case.
18. On the other hand, counsel for accused persons vehemently argued that the prosecution has failed to prove its case against any of these accused persons, beyond reasonable doubt. He submitted that the testimony of PW1 Dayanand, who is victim in this case, is not reliable as he initially did not identify any of these accused persons to be his assailants and he has made contradictory statements at different stages of trial. He also pointed out certain contradictions, which shall be discussed in latter part of this State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 11 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 judgment, appearing on record, in order to bring home his point that those contradictions create reasonable doubt in the prosecution case, benefit of which must be given to the accused persons.
19. No doubt, it is duly established from the ocular testimonies of PW1 Dayanand and PW7 Dr. Tariq Ali Sheikh as well as from the MLC (Ex.PW7/1) that PW1 had sustained several injuries on legs and arms and the nature of injury sustained by him is opined to be grievous in nature. However, the main question which arises for consideration before the Court is as to whether the prosecution has been able to establish beyond doubt that these three accused persons or any of them was involved in commission of crime committed against PW1 or not.
20. In order to bring home the guilt of accused persons, the prosecution examined its only star witness/complainant/victim, namely, Dayanand as PW1 during course of trial. As already noted above, the said witness deposed during his initial chief examination recorded on 31.03.2017 that three persons came on motorcycle, whose last four digits were "...7357", from behind and two of them, who were having sticks of spade, alighted from said motorcycle and assaulted him. He categorically deposed at that stage that he was unable to identify said two assailants, who had assaulted on his head as his eyes had closed due to bleeding since blood started oozing out due to the injuries sustained by him. However, it is only State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 12 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 when PW1 was recalled under Section 311 CrPC and his further examination was recorded on 01.12.2017 i.e. after a gap of nine months from his previous chief examination, he came out with different version by stating that all these three accused persons had committed the incident in question against him. For want of any explanation, what to say of sufficient explanation, coming from the mouth of said witness as to why he did not depose about the involvement of these three accused persons in the incident in question during his previous chief examination, it would not be appropriate to believe his version made before the Court on 01.12.2017.
21. Be that as it may, even if the deposition of PW1 recorded on 01.12.2017 is taken into consideration by the Court, still, he is shown to have deposed contrary to his previous police statement (Ex.PW1/1) as also against the prosecution story propounded in the chargesheet. For the sake of repetition, it may be noted here that in his police statement (Ex.PW1/1), he stated that two boys were having sticks of spade with which they inflicted injuries on his head and other parts of his body, while the third assailant, who was driving the motorcycle, had given fists ad kick blows to him during the said incident. However, he stated during further examination recorded on 01.12.2017 that accused Manoj Kaushik and Mahesh had used spade (kassi) to beat him and accused Sonu @ Mikka had given fists and kick blows to him. During cross examination on behalf of State, he deposed that it was accused Manoj Kaushik, who was driving the State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 13 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 motorcycle, meaning thereby that said accused had given him legs and fists blows as per his police statement but he deposed altogether different during trial on 01.12.2017 that accused Manoj Kaushik had used kassi to beat him. Apart from this, it is claimed in police statement (Ex.PW1/1) that the assailants were having sticks of spade but during trial, PW1 claimed that assailants were having spade, the handles of which were used to give beatings to him. Further, PW1 deposed the registration number of motorcycle used by assailants as DL8SBH7357 in his police statement (Ex.PW1/1) but he deposed the registration number of motorcycle used by offenders as DL8SBH7347 during his further cross examination recorded on 01.12.2017. This is besides the point that PW1 could not disclose the complete registration number of said motorcycle during his initial chief examination recorded on 31.03.2017. There is an interesting aspect to be noted at this stage. During initial chief examination, PW1 disclosed last four digits of said motorcycle to be '7357' but during his further examination on 01.12.2017, he disclosed the last four digits thereof as '7347'. It cannot be said that said number was given by mistake or due to reason that his memory had faded with the passage of time, since despite specific suggestion being put to him by ld. Addl. PP on behalf of State that correct registration number of motorcycle being DL8SBH7357, was given by him to the police, he denied the said suggestion. I may note here that as per the seizure memo (Ex.PW3/5), registration number of seized motorcycle is different from the registration number as disclosed by PW1 State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 14 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 during trial. PW1 admitted during cross examination dated 01.12.2017 that motorcycle No.DL8SBH7357 had nothing to with the incident in question.
22. Moreover, it may be noted that two informations were recorded at PS Chhawla on 17.03.2015, one is DD No.10A (Ex.A2) recorded at 8.25 pm, wherein PCR caller gave information that "Village Chhawla near Girls Govt. School, 7357 scooty wale jhagda karke bhaag gaye", meaning thereby that the assailants had come on some scooty and had quarreled with someone. In subsequent DD No.12A (Ex.A3), recorded at 8.40 am, it is informed that three boys had come on one motorcycle, which was not having any registration number on it and gave head injuries to the nephew, namely, Dayanand @ Bholu of PCR caller, namely, Adarsh S/o Sh. Maan Singh, R/o VPO Chhawla, New Delhi. Same would show that contradictory informations were provided to the police during the short time gap of 15 minutes on 17.03.2015.
23. Be that as it may, PW1 Dayanand deposed that he was taken to hospital by one person, whose nick name was Khummi. However, the Investigating Officer neither examined said Khummi during investigation nor he is shown to have examined PCR caller, namely Adarsh at whose instance DD No.12A was recorded at PS Chhawla. Again, no explanation whatsoever has been furnished by prosecution witness during trial.
State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 15 of 21FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020
24. It is pertinent to note that in his police statement (Ex.PW1/1), the complainant/victim Dayanand did not disclose name of any of the assailants. Rather, he is shown to have stated therein that he could identify the offenders if shown to him. However, PW1 admitted during his cross examination dated 01.12.2017 that accused Manoj Kaushik was previously known to him prior to the date of incident. He also admitted that he did not disclose the name of said accused as one of the assailants despite the fact that he was already knowing him. Same would sufficiently speak about the conduct of PW1 and makes his testimony unreliable under the law.
25. Moreover, there are several material contradictions appearing in the testimonies of prosecution witnesses, which are noted hereunder, which would further create reasonable doubt in the case of prosecution:
(i) It is nowhere the case of prosecution in the entire chargesheet that incident in question was captured in any CCTV camera or that any CCTV camera was installed at or near the place of occurrence. PW6 SI Rajesh Kumar, who is IO of the case, stated during his cross examination that complainant (PW1) did not meet him after 17.03.2015 and also that no CCTV footage of incident was shown to him by the complainant at any point of time. As contrary thereto, PW1 stated during his cross examination dated 01.12.2017 that he had got prepared CD of CCTV footage containing the State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 16 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 incident in question and he had shown the same to concerned police official during investigation;
(ii) PW1 stated during cross examination dated 01.12.2017 that CCTV footage was captured in the CCTV camera installed at officecumresidence of one Nathu Ram. He also stated during same cross examination that said office cumresidence of Nathu Ram was situated at a distance of about 1200/1300 feet and also that place of incident could not be seen from said premises. That being so, it does not appeal to reasoning as to how incident in question could have been captured in the CCTV camera, if any, installed at the premises of Nathu Ram;
(iii) It is nowhere the case of prosecution that aforesaid Nathu Ram was ever joined during investigation. He is also not cited as prosecution witness in the list of witnesses filed with the chargesheet. PW1 admitted that police did not record statement of said Nathu Ram in his presence during investigation;
(iv) PW6 SI Rajesh Kumar (IO) stated that he had
visited the house of complainant (PW1). However, PW1
stated during his cross examination dated 15.05.2017 that after his statement was recorded by police in the hospital, he never met IO or any other police official;
State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 17 of 21FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020
(v) PW6 stated during his cross examination that no public person met him at the spot when he alongwith HC Dharmender (PW2) reached there on receipt of DD No.10A. However, PW2 HC Dharmender deposed otherwise by stating in his cross examination that some public persons were found present at the spot when they reached there and said public person informed them that quarrel had taken place at the spot;
(vi) As per the case of prosecution, danda (Ex.P1) was recovered in pursuance of disclosure statement (Ex.PW3/7) made by accused Manoj Kaushik. However, PW6 (IO) admitted during cross examination that nothing was recovered in pursuance of disclosure statements of accused persons; and
(vii) Prosecution story recited that dandas were used by accused persons, namely, Sonu @ Mikka and Manoj Kaushik, but danda (Ex.P1) is alleged to have been recovered from the house of accused Manoj Kaushik, which creates further doubt in the entire story as propounded in the chargesheet. What is relevant to note is that IO did not even care to obtain any subsequent opinion with regard to recovered danda, vizaviz, the kind of injuries shown to have been sustained by complainant (PW1) during investigation.
26. At this juncture, it may also be noted that date of incident is State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 18 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 17.03.2015 but danda (Ex.P1) is alleged to have been recovered from the house of accsued Manoj Kaushik on 15.04.2015 i.e. after a considerable gap of about one month or so. It is highly improbable that an assailant would keep the weapon of offence at his own house so that vital piece of evidence is collected against him very easily by the police. Moreover, there is no specific mark of identification found present on recovered danda, as also admitted by PW6 SI Rajesh Kumar (IO), who also admitted that dandas similar to danda (Ex.P1) are easily available in market. Further more, no independent witness is joined at the time of alleged recovery of said danda from the house of accused Manoj Kaushik despite their availability. For the said purpose, the relevant portion of cross examination of PW6 may be noted at this stage. Said witness admitted during his cross examination that he did not make any effort to ascertain the ownership of the house situated in Kashmiri Colony. He also admitted that there were several residential houses and shops in Kashmiri Colony and even complainant was not joined on 15.04.2015 when the said danda was allegedly recovered from the house of accused Manoj Kaushik. Same would make the alleged recovery of danda i.e. weapon of offence from the house of accused Manoj Kaushik, doubtful.
27. It is also pertinent to note that seal after use was claimed to have been handed over by PW6 to PW3. However, no handing over memo or taking over memo thereof is shown to have been prepared at any point of State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 19 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 time, as admitted by PW3 during his cross examination. Even site plan of the place of alleged recovery is not shown to have been prepared by IO on that day. No explanation in this regard is forthcoming from the mouth of PW6 (IO) during his examination.
28. It is pertinent to note that accused persons are shown to have been arrested by PW6/IO on 15.04.2015 and after their arrest, they were taken to the spot, where pointing out memo (Ex.PW3/12) was allegedly prepared at their instance by the IO. During his cross examination, PW6 admitted that place of incident was already in his knowledge prior to the arrest of accused persons. He claimed to have mentioned the fact that accused persons were asked to cover their faces with cloth in the case diary but bare perusal of relevant case diary dated 15.04.2015, as available in the police file, on which date accused persons were allegedly arrested, would reveal that it is totally silent on the aspect that faces of none of these accused persons was covered with cloth piece and none of them was asked to cover his face with cloth. In this backdrop, the production of accused persons in muffled faces before ld. Magistrate on 16.04.2015, on which date they refused to participate in judicial TIP, cannot lead to any adverse inference against them.
29. Apart from above, defence raised by accused Manoj Kaushik that PW1 had reason to falsely implicate him in this case in view of the fact State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 20 of 21 FIR No. 146/2015; P.S.Chhawla; U/s 308/341/34 IPC DOD: 19.02.2020 that said accused was having love affair with close family member i.e. real niece of complainant (PW1) and quarrel having taken place on this issue between them on 14.03.2015, as also admitted by PW1 during his cross examination dated 01.12.2017, seems to be probable one. Thus, the possibility of false implication of said accused cannot be ruled out in these facts and circumstances of the case.
30. In the light of aforesaid discussion, this Court is of the considered opinion that it would not be safe to convict any of these accused persons on the sole testimony of PW1, which is not found cogent or reliable and thus, the prosecution has failed to bring home the guilt of any of the accused persons, namely, Manoj Kaushik @ Monu, Sonu @ Mikka and Mahesh Bhardwaj for the offences charged against them beyond shadow of doubt.
31. Accordingly, all the three accused persons, namely, Manoj Kaushik @ Monu, Sonu @ Mikka and Mahesh Bhardwaj are hereby acquitted for the offences punishable under Section 308/341/34 by giving them benefit of doubt. File be consigned to Record Room after compliance of Section 437A CrPC. VIDYA Digitally signed by VIDYA PRAKASH Announced in open Court today PRAKASH Date: 2020.02.20 17:10:12 +0530 On 19.02.2020 (Vidya Prakash) Additional Sessions Judge04 (North) Rohini Courts, Delhi State V/s Manoj Kaushik @ Monu & Ors. ("Acquitted") Page 21 of 21