Delhi District Court
Sessions Case/77/2008 on 9 July, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 77 of 2008.
Unique ID Number : 02401R1146412008.
State v. 1. Mr.Kailash Kumar Gupta @ Raju
son of Mr.Mahavir Gupta,
Resident of Village Mandora, PS Kanhai ,
Hanuman Ganj, District Pratap Ganj, U. P.
(Facing Trial)
2. Mr. Sant Kumar Gupta son of Mr. Shivaji Gupta ,
Resident of 205, Adarsh Colony, Muzafar Nagar, U. P.
(Proclaimed Offender)
FIR Number 371/2007.
Police Station Moti Nagar.
Under sections 186/353/307/380/411/34 of the Indian Penal Code.
Date of filing of the charge sheet before : 25.08.2008.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 05.09.2008.
Arguments concluded on : 09.07.2010.
Date of judgment : 09.07.2010.
Appearances: Mr. Vinod Sharma, Additional Public Prosecutor for
the State
Accused is in judicial custody.
Ms. Shagufta Afroz, Advocate Amicus Curiae for the accused.
JUDGMENT
1. At the outset, it may be mentioned that this case falls in the category of twenty oldest cases and has been disposed off expeditiously.
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ALLEGATIONS OF THE PROSECUTION
2. Mr. Kailash Kumar Gupta @ Raju, the accused, has been charge sheeted by Police Station Moti Nagar, Delhi for the offence under sections 186/353/307/380/411/34 of the Indian Penal Code (hereinafter referred to as the IPC) on the allegations that on 16.06.2007 at about 2.30 AM at a place near plot number 59, Ajanta International 62, Rama Nazafgarh Road opposite Biselery Company, Delhi within the jurisdiction of Police Station Moti Nagar, the accused along with co accused persons Mr. Sant Kumar Gupta (Proclaimed Offender) and Mr. Deewan Chand (convicted) in furtherance of their common intention committed theft of 34 cartons containing polyster textured yarn from container number HR38H-2540 after breaking its lock belongs to Prime Caring Corporation from the possession of driver Mr.Ram Sahai and helper Mr.Suhail and took the same in his tempo no. DL1LD 8116 towards Punjabi Bagh Red Light and on the same day at about 4.15 PM near plot no. 59 Chambery Rama Road, Delhi all the accused persons in furtherance of their common intention voluntarily obstructed public servant DHG Ct. Kishan Lal and Ct.Sandeep in discharging their public function when they were chasing the tempo of accused persons by their motor cycle. It is also alleged that all accused persons in furtherance of their common intention used D E F F G H I F J K F E L M N O E P Q R R H S T U U V W X I G Y M E Z [#L$M N O E P Q U T \ U ] ^$] ] \ _ \)]*T U U V W D ` K ` E-a*E P F M.F b0K G c K F.d-b M N K P0e$M.f)` K6g7^8K h:M i j j>k$l m$n jji 2 o>p 29 criminal force against public servants DHG Ct. Kishan Lal and Ct.Sandeep while they were discharging their duty and accused persons fired on DHG Ct. Kishan Lal and Sandeep.
CHARGE SHEET AND COMMITTAL
3. After completion of the investigation, the charge sheet was filed before the Court of the learned Metropolitan Magistrate on 25.08.2008 and after its committal, the case was assigned to the Court of the learned predecessor by the learned District and Sessions Judge, Delhi for 05.09.2008.
CHARGE
4. After hearing arguments, charge for offence under sections 380/186/353/307/34 of the IPC was framed against the accused, Mr.Kailash Kumar Gupta @ Raju, on 26.09.2008 to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
5. In order to prove its case, the prosecution has examined as many as 17 witnesses i.e. Mr. Ram Sahai, the complainant, from whose trailer with container bearing registration number HR 38 H 2540 the goods were stolen in TATA 407 bearing registration number DL 1 LD 8116, as PW1; Mr. Jogender Yadav, the public witness, whose q r s s t u v s w x s r y z { | r } ~ u v t z r #y$z { | r } ~ $ )* q x r-*r } s z.s 0x t x s.- z { x }0$z.) x678x :z >$ $ 3 > 29 TATA 407 bearing registration number DL 1 LD 8116 was used in the commission of the alleged offence, as PW2; ASI Rishi Pal, the duty officer who had recorded the formal FIR of the present case, as PW3; HC Anand Swaroop, the MHC(M), as PW4; HC Ajay Malik, the police witness, as PW5; ASI Bal Kishan, the police witness who is the Investigation Officer of FIR Number 409/07 Police Station Keshav Puram regarding the theft of TATA 407 bearing registration number DL 1 LD 8116, as PW6; Ct. Jagdish, the police witness, as PW7; Mr. Joginder Yadav, the public witness who has been examined as PW1 has been inadvertently examined again, as PW8; Ct. Krishan Lal, the police witness, as PW9; Mr. Balwinder Singh, the superdar of the case property, as PW 10; Mr. Saurabh Kulshrestha, learned Metropolitan Magistrate, who had conducted the Test Identification Parade proceedings and proved the same, as PW11; HC Bhupinder Singh, the police witness, as PW12; HC Kishan Lal, the police witness, as PW13; Inspector R.S, Meena, the witness of investigation, as PW14; Mr.Sandeep Kumar, Ex.DHG, as PW15; Ct.Vijender Singh, as PW16; ASI Padam Singh, the Investigation Officer of the case, as PW16; and Mr. Mangesh Kashyap, DCP who filed the complaint under section 195 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), as PW17.
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6. On the statement of the Additional Public Prosecutor dated 17.11.2009, PW HC Jagbir Singh was dropped from the list of witnesses vide order dated 17.11.2009. Subsequently, on the statement of the Additional Public Prosecutor dated 22.12.2009, PW Ct.Jitender was dropped from the list of witnesses vide order dated 17.11.2009. Further, on the statement of the Additional Public Prosecutor dated 05.03.2010, PW Ct.Jagbir and Mr.Suhail Khan were dropped from the list of witnesses vide order dated 05.03.2010.
7. It may be mentioned here that initially the prosecution evidence was closed on 24.04.2010 and the statement of the accused under section 313 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) was also recorded on 10.05.2010. However, thereafter on the application of the prosecution which was allowed on 25.05.2010, DCP Mr.Mangesh Kashyap was examined and then the statement of the accused was again recorded on 29.05.2010.
STATEMENT OF THE ACCUSED AND HIS DEFENCE
8. In his statements under section 313 of the Cr.P.C. recorded on 10.05.2010 and 29.05.2010, the accused has controverted and rebutted the entire evidence against him submitting that he is innocent and has been falsely implicated in this case. Accused has preferred not to lead any evidence in his defence.
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9. I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
10.The Additional Public Prosecutor for the State has requested for convicting the accused for having committed the offence under sections 186/353/307/380/411/34 of the IPC submitting that the prosecution has been able to bring home the charge against the accused by examining its witnesses whose testimonies are corroborative and reliable.
11.The amicus curiae for the accused, on the other hand, has requested for his acquittal submitting that there are several contradictions and discrepancies in the testimonies of the witnesses of the prosecution, presence of public witnesses, weapon of offence not recovered, accused not identified, etc. DISCUSSION, ANALYSIS AND FINDINGS
12.The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, ø ù ú ú û ü ý ú þ ÿ ú ù ù ü ý û ù ù ø"! ÿ ! $ ù #* ù ú .
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should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth , this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record.
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13.It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.
14.When an eye witness is examined at length it is quite possible for i"j k k l m n k o)p k j q r s t j u v w w m x y z z { | } n l ~ r j q r s t j u v z y z y z z { | i" p j$ j u k r(k +p l p k($)r s p u+ r( p./_p 1r 5 8 5 29 him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
15.There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or it has not been proved in evidence at trial, does it absolve the liability of the culprit who has committed the offence? The answer is logically in the negative as any lapse on the part of the investigation does not negate the offence.
16.Under this sphere, I now proceed to test the submissions of both the sides.
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17.However, I find that there are several overwhelming inconsistencies and blemishes and glaring contradictions in the evidence of the prosecution witnesses which remain unexplained by the prosecution and these blemishes are fatal to the prosecution version as they strike at the root of the case. The prosecution story does not inspire confidence and is not worthy of credence.
18.I find that the prosecution has miserably failed to bring home the charge against the accused for plurality of reasons, elaborated below.
PROSECUTION VERSION
19.The prosecution story unveills with Mr. Ram Sahai, the driver of the trailer with container bearing registration number HR38-H 2540 containing 540 cartoons of polyster texture yarn belonging to Reliance reporting of theft of 34 cartoons in a tempo bearing registration number DL1 LD8116. While Mr. Ram Sahai and his helper, Mr. Sohail Khan, were sleeping on 16.06.2007 at about 2.30 am at a place near plot no. 56 Ajanta International, 62 Rama Nagafgarh Road opposite Bisleri Company, the theft was committed by Mr.Kailash Kumar Gupta @ Raju along with co-accused Mr. Sant Kumar Gupta (proclaimed offender) and Mr. Diwan Chand (already convicted). When the theft was noticed by Mr. Ram Sahai, Ã"Ä Å Å Æ Ç È Å É)Ê Å Ä Ë Ì Í Î Ä Ï Ð Ñ Ñ Ç Ò Ó Ô Ô Õ Ö × È Æ Ø Ì Ä Ù Ú Ë Ì Í Î Ä Ï Ð Ô Ó Û Ô Ü Ý Ü Ü Û Þ Û Ü Ó Ô Ô Õ Ö Ã"ß Ê ß Ä$à Ä Ï Å Ì(Å á+Ê Æ â Ê Å(ã$á)Ì Í Ê Ï+ä Ì(å ß Ê.æ/Ý_Ê ç1Ì è é é5ê ë ì í 10 î5ï 29 ééè the accused try to flee. Ct. Kishen along with DHG Ct.Sandeep were patrolling at Gol Chamberi in front of block no.59, Rama Road and had chased the container which was stop near Yamuna Pusta and accused Mr.Diwan Chand was apprehended by Ct. Krishan Lal and the driver of the tempo fled from the spot and the other person, allegedly accused Mr.Kailash Kumar Gupta @ Raju, in the tempo also fired at the police chasing the tempo. 34 cartoons of yarn were recovered from the abandoned tempo and were seized vide seizure memo Ex.PW5/B. The broken lock of the container was seized vide seizure memo Ex.PW5/G. Accused Mr.Diwan Chand made a disclosure statement is Ex.PW5/H and the stolen articles were seized vide Ex.PW5/D. Thereafter, accused Kailash Kumar Gupta was apprehended and identified in the test identification parade, which is Ex.PW11/A. He was arrested vide arrest memo Ex.PW13/B and taken on police custody remand for one day in which he remained in muffled face. The statement of Mr. Ram Sahai was Ex.PW1/A was recorded on which rukka was sent for registration of FIR, and the site plan was prepared which is Ex.PW15/A. The sanction under section 195 Cr.P.C from DCP Mr.Mangesh Kashyap, Ex.PW12/A and 12/B, was taken and 33 cartoons were released on superdaari. Accused Mr.Kailash Kumar Gupta @ Raju had been apprehended vide DD No.94 B dated 30.05.2009, Ex.PW13/A, on which he made disclosure statement, ð"ñ ò ò ó ô õ ò ö)÷ ò ñ ø ù ú û ñ ü ý þ þ ô ÿ õ ó ù ñ ø ù ú û ñ ü ý ð ÷ ñ ñ ü ò ù( ò +÷ ó ÷ ò )ù ú ÷ ü ù ! # ÷ "$ _÷ %1ù & ' ')( * + , 11 -). 29 ''& Ex.PW16/A, and at his instance site plan of the place where the weapon of offence was thrown was prepared which is Ex.PW16/C and the pointing out memo regarding the place of incident is Ex.PW16/B.
20.All the police witnesses have deposed regarding the investigation conducted by them and the documents prepared and there is practically no inconsistency in their evidence. Mr. Ram Sahai has deposed regarding the facts of the case and has identified the stolen property i.e. one cartoon which had been retained after the release of 33 cartoons on superdaari. He has also identified his trailer with container and the tempo. All the relevant details and the documents have been brought forth in the evidence of the prosecution witnesses.
IDENTITY OF THE ACCUSED AS THE CULPRIT
21.It may be mentioned here that this is a case under sections 380/34, 186/34, 353/34 IPC and 307/34 of the IPC. In this case, it is very necessary to establish the identity of accused as culprit. However, I find that the identity of Mr. Kailash Kumar Gupta @ Raju as a culprit has not been established beyond all shadow of doubt by prosecution.
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22.PW1 has deposed after seeing the accused in the Court that he may be the person who was stealing the goods by saying "Yeh hi raha hoga". However, the Test Identification Parade of the accused with Mr. Ram Sahai as witness has not been got conducted by the IO. The same was very important in the given facts as the accused was not apprehended at the spot and had been arrested at a much later date after the date of incident. In such a situation, the identification of accused Mr.Kailash Kumar Gupta @ Raju by Mr.Ram Sahai could have been an important fact for establishing his role as accused. When Mr. Ram Sahai has deposed that the accused may have been the culprit creates a doubt regarding his identity as the culprit and his presence at the spot at the time of commission of the alleged offence and therefore, no reliance can be placed on so called identification of accused by PW1.
23.Further, no reliance can be placed upon the evidence of PW1 as he has made improvements in his evidence before the Court. PW1 has deposed that he had heard accused Mr.Diwan uttering "Kailash goli maar" but there is no such mention in his complaint Ex.PW5/A and statement made to the police and same appears to be an improvement and after thought can not be believed. The identity of accused Mr.Kailash Kumar Gupta @ Raju as a culprit cannot be established by such an utterance.
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24.The improvement made by PW1 in his evidence cannot even be taken as explanation or clarification as no such averment has also been made by the prosecution. It appears to have been made after due deliberation in order to give support to the prosecution case. As the improvement remains unjustified and unexplained, it throws a shadow of doubt on the prosecution case.
25.Facts establish the identity of anything or person whose identity is relevant. So the evidence of identification is a relevant piece of evidence under section 9 of the Evidence Act where the evidence consists of identification of the person at his trial. The statement of a witness made in the Court, a fortiori identification by him of the accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the Court. The purpose of test identification parade is to test the observations, grasp, memory capacity to recapitulate what he has seen earlier, strength of trustworthiness of the evidence, identification of an accused and to ascertain if it can be used as a reliable corroborative evidence of the witness identifying the accused at his trial in the Court. If the 7 : ¡ ¢ £ £ ¤ ¥ ¦ § ¨ ©I £ ¢ ª £ « ¬ « « ª ª « ¢ £ £ ¤ ¥ ® ® ¯ ° ± ² °7 ³ ´ ® #µ$¬V ¶X · ¸ ¸)¹ º » ¼ 14 ½)¾ 29 ¿ ¿ À witness identifies the accused in the Court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much as that it becomes unsafe to rely on such piece of evidence. But if the witness has known an accused earlier, in such circumstances which lend assurance to identification or inconsistency, there is no reason why his statement in the Court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony.
26.The complainant, in his complaint has not furnished any description or appearance of the culprits who committed the alleged offence. It is an admitted situation that PWs 1, 13 and 15 were not known to the accused prior to the alleged incident and even he was not shown the accused by the police in the Police Station. PW1 was not even with the police when the accused was apprehended In such a situation, the supposed identification of the accused by PW1 before the Court for the first time after seeing him on the date when he was first seen by the witness is no identification at all in the eyes of law and there is no evidentiary value of such an identification.
27.Further, I find that PW13, Ct. Kishen Lal, who had allegedly chased the accused has identified him in the Test Identification Parade proceedings, Ex.PW11/A, but I find on perusal of the remand papers Á Â Ã Ã Ä Å Æ Ã Ç7È Ã Â É:Ê Ë Ì Â Í Î Ï Ï Å Ð Ñ Ò Ò Ó Ô Õ Æ Ä Ö Ê Â × ØIÉ Ê Ë Ì Â Í Î Ò Ñ Ù Ò Ú Û Ú Ú Ù Ü Ù Ú Ñ Ò Ò Ó Ô Á Ý È Ý Â Þ Â Í Ã Ê Ã ß È Ä à È Ã á ß7Ê Ë È Í â Ê ã Ý È#ä$ÛVÈ åXÊ æ ç ç)è é ê ë 15 ì)í 29 î î ï of accused Mr.Kailash Kumar Gupta @ Raju which are annexed in the file that there is no mention that he had been produced before the Court in muffled face. When there is no such mention, presumption has to be drawn in favour of accused that he was in unmuffled face which indicates his identification by PW13 in the Test Identification Parade proceedings, Ex.PW11/A, can not be given any sanctity since the accused had remained in unmuffled face and could have been seen by anyone including PW13.
28.Also, I find in the Test Identification Parade proceedings of the accused with PW15 as a witness he has not been identified by PW15. As per the prosecution version, both PWs 13 and 15 were together when they had chased the accused and had seen him but when PW15 has failed to identify the accused, then it can not be said that he is the culprit. Even otherwise, I find on the perusal of Test Identification Parade proceedings that PW15 has identified wrong person and therefore the identification of the accused in the Court in the evidence is of no value and his explanation that he had come to Tihar from his native place and due to "gabrahat" he could not identify him does not appear to be genuine. PW15, in his cross examination has admitted that he could not identified the accused during the judicial TIP. He has further deposed, "on the date of judicial TIP of accused I was called from my house at the time I was ð ñ ò ò ó ô õ ò ö7÷ ò ñ ø:ù ú û ñ ü ý þ þ ô ÿ õ ó ù ñ Iø ù ú û ñ ü ý ð ÷ ñ ñ ü ò ù ò ÷ ó ÷ ò 7ù ú ÷ ü ù ! ÷#"$ V÷ %Xù & ' ')( * + , 16 -). 29 / / 0 in my native place which is 80 Km Tihar. In hurry I had reached at Tihar Jail on motor-cycle "Jab main wahan pahuncha to main pahli bar aisa mauhaul dekha tha. Wahan par kai sare mulzim the to kuch ghabrahat ki wajah se mulzim meri nigah mein nahi chad paya". However, there is no such mention in his statement under section 161 Cr.P.C. and his deposition before the Court only appears to be an after thought with the intention to fill up the lacuna and his evidence does not appear to be trustworthy and reliable.
29.Therefore, I am of the considered opinion that supposed identification of the accused by PW1 and 13 can not be given any credibility and PW15 has even otherwise failed to identify him.
30.The prosecution has failed to establish beyond all shadow of doubt that it was accused Mr.Kailash Kumar Gupta @ Raju who was present at the spot of crime and had committed the offence.
FIRING
31.Section 307 of IPC reads as follows:
"Attempt to murder- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten 1 2 3 3 4 5 6 3 798 3 2 :<; = > 2 ? @ A A 5 B C D D E F G 6 4 H ; 2 I JK: ; = > 2 ? @ D C L D M N M M L O L M C D D E F 1 P 8 P 2 Q 2 ? 3 ; 3 R 8 4 S 8 3 T R9; = 8 ? U ; V P 8#W$NX8 YZ; [ \ \)] ^ _ ` 17 a)b 29 c c d years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.
32.In order to prove its case under section 307 of the IPC, the prosecution is required to prove:
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of, the act of the accused;
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death;
33.The burden is on the prosecution to prove both; namely (i) the act (actus reus) and; (ii) the intention (mens rea). To charge a person under section 307, it has to be shown as to what was the actual intention of the assailant and also as to what is the nature of injury, i.e. the extend of damage caused to body or any organ thereof.
34.As mentioned above, the identity of accused as culprit has not been established and therefore, even the second part of the allegations that the accused Mr.Kailash Kumar Gupta @ Raju had fired at PWs 13 and 12 also is not established.
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35.Further, it is also clear from the evidence of PWs 1, 13 and 15 that none of them were hurt in the alleged firing. Neither the alleged weapon of offence nor any fired or used bullets have been recovered from the spot or at the instance or from the possession of the accused.
36.Therefore, it cannot be said that the accused Mr.Kailash Kumar Gupta @ Raju has fired on the witnesses during his escape.
OBSTRUCTION
37.Similarly, for the same reasons as elaborated while discussing the alleged firing by the accused, the offence of obstructing the public servants i.e PW13 and 15 in discharge of their official duties also is not established.
MENS REA / MOTIVE
38.Next, there apparently is no enmity between the accused and the complainant nor any motive has been assigned to him. In order to prove the charge under section 307 of the IPC and the other provisions under the criminal law, the intention of the offender is the main consideration and the circumstances in which the injuries are caused have to be examined. In the present case, the alleged 9 < ¡ ¢ ¢ £ ¤ ¥ ¥ ¦ § ¨ © ª «K ¡ ¥ ¤ ¬ ¥ ® ¬ ¯ ¬ ¤ ¥ ¥ ¦ § ° ° ± ² ³ ´ ²9 µ ¶ ° #·$®X ¸Z ¹ º º)» ¼ ½ ¾ 19 ¿)À 29 Á Á Â incident occurred on the spur of the moment and there was no pre- planning.
39.Regarding the motive of crime, in Dhananjay Chattarjee v. State of Bengal, 1995 AIR SCW 510, the Hon'ble Apex Court has observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
40.In the present case there is sufficient evidence on record to show that the accused did not have any motive to commit the offence. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the Ã Ä Å Å Æ Ç È Å É9Ê Å Ä Ë<Ì Í Î Ä Ï Ð Ñ Ñ Ç Ò Ó Ô Ô Õ Ö × È Æ Ø Ì Ä Ù ÚKË Ì Í Î Ä Ï Ð Ô Ó Û Ô Ü Ý Ü Ü Û Þ Û Ü Ó Ô Ô Õ Ö Ã ß Ê ß Ä à Ä Ï Å Ì Å á Ê Æ â Ê Å ã á9Ì Í Ê Ï ä Ì å ß Ê#æ$ÝXÊ çZÌ è é é)ê ë ì í 20 î)ï 29 ð ð ñ guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
41.Therefore, I am of the considered opinion that the prosecution has failed to show the mens rea on part of the accused in commission of the alleged offence.
SANCION UNDER SECTION 195 CR.P.C.
42.It may also be mentioned that the complaint under section 195 Cr.P.C. Ex.PW12/A does not bear any date and there is nothing on the record which could show that same has been filed along with the charge sheet against co-accused Diwan Chand who has since being convicted and therefore, reliance cannot be placed on it by the prosecution.
CASE PROPERTY NOT PRODUCED
43.It may also be observed here that the case property was not ò ó ô ô õ ö ÷ ô ø9ù ô ó ú<û ü ý ó þ ÿ ö ÷ õ û ó Kú û ü ý ó þ ÿ ò ù ó ó þ ô û ô ù õ ù ô 9û ü ù " þ ! û # % ù $& Xù 'Zû ( ) )+* , - .
21 /+0 29 1 1 2 produced before the Court in the evidence except for one carton of yarn which was retained in the Mal Khana. The superdar of the case property, PW 10 has deposed before the Court that "I had taken the case property on Superdaari, however I can not produced the same in the Court as I have already handed over the same to its owner. I am not in a position to produce it in the Court." The prosecution has failed to produce the case property before the Court which strikes a fatal blow to the prosecution case.
CASE PROPERTY NOT RECOVERED FROM ACCUSED
44.It is an admitted fact that none of the case property i.e. 34 cartons containing polyster textured yarn have been recovered from the unlawful possession of the accused or at his instance. In order to prove a case of theft, robbery or dacoity, it is a fact germaine that the alleged stolen property must be recovered from the unlawful possession of the accused or at his instance.
45.As no incriminating material has been recovered from the unlawful possession of the accused or at his instance, no case under section 380/34 of the IPC or even under section 411 of the IPC is made out against him.
WEAPON OF OFFENCE NOT RECOVERED 3 4 5 5 6 7 8 5 9;: 5 4 <>= ? @ 4 A B C C 7 D E F F G H I 8 6 J = 4 K LM< = ? @ 4 A B F E N F O P O O N Q N O E F F G H 3 R : R 4 S 4 A 5 = 5 T": 6 U : 5 V T;= ? : A"W = X R :%Y&PZ: [\= ] ^ ^+_ ` a b 22 c+d 29 e e f
46.Further, as regards the offence of firing at the police officials, I am of the considered opinion that neither the alleged weapon of offence has been recovered by the police nor any fired bullets or shells have been recovered from the spot which could indicate that in reality there had been some firing. The investigation officer even did not care to make any sincere efforts for getting the weapon of offence recovered.
COMMON INTENTION
47.Section 34 IPC lays down the principal of common intention/joint liability in doing of criminal act. Common intention implies acting in concert which is to be seen from the facts and circumstance of the given case. Prior consent or prior meeting of mind is essential ingredient of common intention as envisaged under section 34 of IPC.
48.It has been held in 1999 (008) SCC, 055SC as follows:
"The common intention implies acting in concert, existence of prearranged plan which is to be proved either from conduct or from circumstances of from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action g h i i j k l i m;n i h o>p q r h s t u u k v w x x y z { l j | p h } ~Mo p q r h s t x w x w x x y z g n h h s i p i "n j n i ;p q n s" p n%&Zn \p + 23 + 29 and the declaration made by them just before mounting the attack. It can also be developed at the spur of the movement but there must be prearrangement or premeditated concert."
49.In view of the above judgment and from the facts of the present case, it can be seen that there was no common intention between the accused Mr.Kailash Kumar Gupta @ Raju and the others.
50.I do not find anything on the record which could indicate that the accused Mr.Kailash Kumar Gupta @ Raju had any common intention with the co-accused Mr.Diwan Chand and Mr.Sant Kumar Gupta in obstructing, assaulting or using criminal force against PWs 13 and 15 in order to deter them from discharging their official duty.
NO PUBLIC WITNESS ASSOCIATED
51.The investigation conducted in this case also appears to be not proper and despite the spot of occurrence being a public place, the spot of arrest being a public place and the investigation also being conducted at public place, no person from the public has been associated at any point of time. The explanation given by the prosecution that the public persons had left without disclosing their names and addresses appears to be a bald assertion without any substantive evidence. The IO has neither given any notice to the ; > ¡ ¢ £ ¤ ¤ ¥ ¦ § § ¨ © ª « ¬ M ¡ ¢ £ § ¦ ® § ¯ ° ¯ ¯ ® ± ® ¯ ¦ § § ¨ © ² ² ³ ¢ ´" µ ¶ ´; ¢"· ¸ ² %¹&°Z º\ » ¼ ¼+½ ¾ ¿ À 24 Á+Â 29 Ã Ã Ä persons who declined to join the investigation nor has taken any legal action against them. Where independent persons from the public are available and are not joined in the investigation and there is apparently no justification for the same nor any legal action is taken by the Investigation Officer against them, then the version put forth becomes unreliable. The accused has been prejudiced by the non-joining of the public witnesses in the investigation.
52.These facts in totality throw a shadow of doubt on the prosecution story as its veracity stands shattered due to the lapse.
FAULTY INVESTIGATION
53.Lastly, it may be observed that some lapses in the investigation have also been noticed which cannot be ignored. As far as the investigation is concerned, there is nothing on the record to suggest that the IO had any ulterior motive to falsely implicate the accused in this case nor there is anything to indicate that the investigation was unfair or prejudiced.
54.However, still there are some lapses noticed in the investigation conducted in this case. It has already been discussed above that no independent person from the public has been associated in the investigation by the IO at any point of time. The IO has also failed Å Æ Ç Ç È É Ê Ç Ë;Ì Ç Æ Í>Î Ï Ð Æ Ñ Ò Ó Ó É Ô Õ Ö Ö × Ø Ù Ê È Ú Î Æ Û ÜMÍ Î Ï Ð Æ Ñ Ò Ö Õ Ý Ö Þ ß Þ Þ Ý à Ý Þ Õ Ö Ö × Ø Å á Ì á Æ â Æ Ñ Ç Î Ç ã"Ì È ä Ì Ç å ã;Î Ï Ì Ñ"æ Î ç á Ì%è&ßZÌ é\Î ê ë ë+ì í î ï 25 ð+ñ 29 ò ò ó to get the Test Identification Parade of the accused conducted with PW1 as a witness. It also appears that no effort has been made to recover the weapon of offence.
55.All the above lapses indicate that the investigation has not been conducted properly in the present case.
FINAL FINDING
56.It is clear from the above discussion that neither the identity of accused Mr.Kailash Kumar Gupta @ Raju as the culprit has been established nor the weapon of offence have been recovered nor the case property has been recovered from him nor there is anything to show that the accused had obstructed public servant in discharge of their official duties. Besides the fact that his identification by PWs 1 and 13 is not reliable, PW15 has not identified him etc.
57.All the above overwhelming discrepancies and glaring blemishes in the evidence of the prosecution witnesses are too significant to be ignored and are fatal to the prosecution case and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused. These blemishes shatter the veracity of the prosecution case, thereby throwing a shadow of doubt on the prosecution story.
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58.I am of the considered view that the above discrepancies occurring in the deposition of various witnesses are not usual and natural and strike at the root of the matter and are fatal for the prosecution, thereby throwing a shadow of doubt on the prosecution story and shatter its veracity. All the above discrepancies, contradictions and blemishes in the evidence of the prosecution witnesses are to significant to be ignored and appear to be fatal and are sufficient for throwing out the case of the prosecution as they strike at the root of the substantive allegations as against the accused.
59.The evidence of the prosecution witnesses does not appear to be reliable. The prosecution story does not inspire confidence and is not worthy of credence. The role of the accused as the culprit in the prosecution story has not been proved.
60.The prosecution has miserably failed to prove the charge against the accused for the offence under sections 186/353/307/380/411/34 of the IPC that on 16.06.2007 at about 2.30 AM at a place near plot number 59, Ajanta International 62, Rama Nazafgarh Road opposite Biselery Company, Delhi within the jurisdiction of Police Station Moti Nagar, the accused Mr.Kailash Kumar Gupta @ Raju along with co accused persons Mr. Sant Kumar Gupta (Proclaimed 5 6 7 7 8 9 : 7 ;=< 7 6 >@? A B 6 C D E E 9 F G H H I J K : 8 L ? 6 M NO> ? A B 6 C D H G P H Q R Q Q P S P Q G H H I J 5 T < T 6 U 6 C 7 ?"7 V$< 8 W < 7"X V=? A < C$Y ?"Z T <'[(R\< ]^? _ ` `-a b c d 27 e-f 29 g g h Offender) and Mr. Deewan Chand (convicted) in furtherance of their common intention committed theft of 34 cartons containing polyster textured yarn from container number HR38H-2540 after breaking its lock belongs to Prime Caring Corporation from the possession of driver Mr.Ram Sahai and helper Mr.Suhail and took the same in his tempo no. DL1LD 8116 towards Punjabi Bagh Red Light and on the same day at about 4.15 PM near plot no. 59 Chambery Rama Road, Delhi all the accused persons in furtherance of their common intention voluntarily obstructed public servant DHG Ct. Kishan Lal and Ct.Sandeep in discharging their public function when they were chasing the tempo of accused persons by their motor cycle and that all accused persons in furtherance of their common intention used criminal force against public servants DHG Ct. Kishan Lal and Ct.Sandeep while they were discharging their duty and accused persons fired on DHG Ct. Kishan Lal and Sandeep.
61.The prosecution has failed to prove and establish the identity of the accused as the culprit, the manner in which the offence was committed, the weapon of offence, etc. which falsifies the case of the prosecution.
62.The conscience of this Court is completely satisfied that the i j k k l m n k o=p k j q@r s t j u v w w m x y z z { | } n l ~ r j Oq r s t j u v z y z y z z { | i p j j u k r"k $p l p k" =r s p u$ r" p'(\p ^r - 28 - 29 prosecution has miserably failed to bring home the charge against the accused namely Mr.Kailash Kumar Gupta @ Raju.
63.Consequently, the accused namely Mr.Kailash Kumar Gupta @ Raju is hereby given the benefit of doubt and is hereby acquitted of the charge. He is in judicial custody. He be released from judicial custody forthwith, if not wanted in any other case.
64.Before parting, I would also like to observe that Ms.Shagufta Afroz, advocate, who has been appointed as amicus curie in this case has made very sincere and laborious efforts in this case with her very able assistance and regular appearance, thereby enabling the Court to dispose the matter expeditiously.
65.One copy of the judgment be given to the Additional Public Prosecutor, as requested.
66.The file be consigned to the record room and be revived as and when accused Mr.Sant Kumar Gupta (Proclaimed Offender) is apprehended.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 09th day of July, 2010. ASJ-01, West, Delhi.
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