Delhi District Court
State vs Vijay Etc on 19 November, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)-02,
SOUTH DISTRICT, SAKET COURTS, DELHI
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-002273-2015
SESSIONS CASE NO. 7558/16
FIR NO. 937/14
POLICE STATION : SAFDARJUNG ENCLAVE
UNDER SECTION : 186/353/308/160 IPC
AND U/S 3 OF PREVENTION TO DAMAGE
OF PUBLIC PROPERTY ACT
State
Versus
1. Vijay,
s/o Sh. Manu Rathore,
r/o A-29, Servant quarter,
Gulmohar Park, Hauz Khas,
New Delhi.
2. Santosh Kumar,
s/o Sh. Shiv Narain Dass,
r/o L-1/1976/27, Sangam Vihar,
New Delhi. ...Accused Persons
DATE OF INSTITUTION : 25.01.2015
DATE OF RESERVING JUDGMENT : 16.11.2024
DATE OF JUDGMENT/ ORDER : 19.11.2024
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Vijay and Santosh Kumar pursuant to charge sheet filed by PS Safdarjung Enclave, U/s 186/353/308/160 Indian Penal Code (hereinafter referred as IPC) and u/s 3 of Prevention to Damage of Public Property Act subsequent to the investigation carried out FIR No. 937/14 State v. Vijay and others Page 1/24 by them in FIR No. 937/14.
2. As per the case of prosecution, on 26.11.2014 on receipt of DD no. 39A, SI Yogesh Kumar along with Ct. Ombir reached at the spot i.e. Deer Park Gate, opposite Centre for Sight where they came to know that the injured has been shifted to hospital. In the meantime another DD no. 61B received regarding admission of injured at AIIMS Trauma Centre. Thereafter, SI Yogesh Kumar and Ct. Ombir reached at AIIMS hospital and received MLC no.
463144/14 of patient Ct. Rajesh with the alleged history of assault. Statement of injured Ct. Rajesh was recorded.
3. As per the statement of complainant Ct. Rajesh, on 26.11.2024 his duty was at Khanna Stadium on Harsukh Marg for law and order arrangement. At about 06.10 PM three persons were scuffling and abusing loudly near Deer Park gate creating nuisance for general public. Complainant intervened in the matter and dispersed them from the spot. As soon as the complainant moved for returning to his duty, one of the said persons came from back and suddenly hit him with tile on his head due to which he fell down and his wireless set also got damaged. Public persons caught hold of the said person after brief chase whose name was revealed as accused Vijay. In the meantime, HC Puran Mal and Ct. Kulbir reached at the spot. Injured Ct. Rajesh was admitted in AIIMS hospital by HC Puran Mal. On the basis of aforesaid complaint i.e. Ex. PW6/1 present FIR was got FIR No. 937/14 State v. Vijay and others Page 2/24 registered.
4. During the investigation, accused persons namely Vijay and Santosh Kumar were arrested. The investigating officer seized the tile i.e. weapon of offence during the investigation and recorded statement of the witnesses. Forensic opinion was also obtained. After the conclusion of the investigation carried out in the FIR no. 937/14, police filed the charge sheet against the accused persons namely Vijay and Santosh Kumar for commission of offence U/s 186/353/308/160 IPC and u/s 3 of Prevention to Damage of Public Property Act.
5. Vide Order dated 25.01.2015, Ld. Metropolitan Magistrate concerned took cognizance of the offences and the accused persons were called to face the trial. Both the accused persons namely Vijay and Santosh Kumar were supplied with the charge sheet and other relevant documents in compliance to section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 03.07.2015.
CHARGE
6. Vide order dated 11.09.2015 charge for the offences punishable u/s 186/353/307 IPC and u/s 3 of Prevention of Damage of Public Property Act, 1984 was framed by the Ld. FIR No. 937/14 State v. Vijay and others Page 3/24 Predecessor of this Court against the accused Vijay who pleaded not guilty and claimed trial.
Separate charge for the offence punishable u/s 160 IPC was framed against both the accused persons namely Vijay and Santosh Kumar who pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. Prosecution examined total nine (9) prosecution witnesses (hereinafter referred to as PW) to prove its case.
8. PW1 SI Kishan Lal was the duty officer who proved and exhibited on record DD no. 39A as Ex. PW1/A, endorsement on rukka as Ex. PW1/B, copy of FIR as Ex. PW1/C, certificate u/s 65B of the Indian Evidence Act as Ex. PW1/D. PW1 was cross examined on behalf of accused.
9. PW2 Ct. Ombir joined investigation with IO SI Yogesh Kumar and deposed that on 26.11.2014 they reached at the spot i.e. Deer Park, Safdarjung Enclave, New Delhi where no one was found present. In the meantime, DD no. 61B was received by SI Yogesh Kumar regarding admission of injured Constable in AIIMS Trauma Centre. PW2 further deposed that upon reaching at AIIMS Trauma Centre Ct. Rajesh was found under treatment having injury on his head and the IO recorded his statement and FIR was got registered. PW2 further deposed that accused Vijay FIR No. 937/14 State v. Vijay and others Page 4/24 was brought to the hospital by Ct. Pawan and Ct. Kulbir along with public persons namely Manoj and Jaspal. After interrogation, accused Vijay was arrested by the IO vide memo Ex. PW2/A (Ex. PW6/3), his personal search was got conducted vide memo Ex. PW2/B. PW2 further deposed that accused Vijay took the police to the scene of crime and pointed out the same vide memo Ex. PW2/E and also got recovered piece of tiles stated to be used for assaulting Ct. Rajesh. The said piece of tile was seized vide seizure memo Ex. PW2/C. IO prepared the site plan and seized the blood stained clothes of Ct. Rajesh vide memo Ex. PW2/D. PW2 identified accused Vijay before the court during the trial. PW2 was cross examined on behalf of accused.
10. PW3 Sh. Manoj Kumar was the independent public witness who deposed that on 26.11.2014 at about 06.00-06.30 PM, he was present in front of gate of Deer Park, Safdarjung Enclave where he saw 3-4 boys were creating nuisance by doing "masti". PW3 further deposed that one police constable, who was present at the spot intervened and objected about their activities and he also slapped them. PW3 further deposed that at this, those boys started running and one of them hit the said Ct. Rajesh with stone and fled away. PW3 further deposed that the public persons chased those boys and one of them was apprehended. Ct. Rajesh sustained injury on his head and he was taken to hospital by the FIR No. 937/14 State v. Vijay and others Page 5/24 public persons. It is further submitted that he was taken to the police station and enquiry were made from him and he narrated the aforesaid facts to the police. This witness did not identify the accused persons. As the witness did not support the case of the prosecution, he was cross examined by Ld. Additional PP for the state with the permission of the court. PW3 was not cross examined on behalf of accused.
11. PW4 Dr. Tanmay Pareek exhibited on record MLC of injured Ct. Rajesh as Ex. PW4/A, attested copy of discharge note of patient as Ex. PW4/B, attested copy of joining register of Dr. Priyanka Kharayat as Ex. PW4/C. PW4 was cross examined on behalf of accused.
12. PW6 ASI Rajesh Kumar was the injured in the present case who deposed in view of his complaint Ex. PW6/1 and reiterated the same facts in his examination in chief. In addition to the same, PW6 deposed that on 04.12.2014 when he came to see IO to know about the status of the present case, he identified accused Santosh who committed affray on 26.11.2024 as the same person who was present with the IO. During his testimony, this witness exhibited on record DD no. 54B dated 26.11.2014 as Ex. PW6/2 vide which he was assigned the duty, the arrest memo of accused Vijay as Ex. PW6/3. PW6 stated that on 04.12.2014 when he came to meet IO to know about the status of the present FIR No. 937/14 State v. Vijay and others Page 6/24 case, he identified the accused Santosh being one of the person who committed affray on 26.11.2014 and he was arrested by the IO vide arrest memo Ex. PW6/4, his personal search was conducted vide memo E.x PW6/5. PW6 identified both the accused persons before the court during the trial. PW6 was cross examined on behalf of accused.
13. PW7 Ct. Pawan Kumar deposed that on 26.11.2014 he was assigned the duty for maintaining the law and order at Khanna Stadium at Harsukh Marg, Delhi. While he was on his duty, public person came and informed him that some one had given stone blow to a police official. Upon this, PW7 along with Ct. Kulbir reached in front of the gate of the deer park and found that two public persons namely Manoj Kumar and Jaspal Singh were having the custody of a person, who had assaulted upon Ct. Rajesh whose name was revealed as Vijay. PW7 further deposed that accused Vijay was brought to the police station and he was found to be under intoxication. PW7 further deposed that he was got medically examined in Safdarjung Hospital and thereafter he was taken to AIIMS Trauma Centre and produced before IO/SI Yogesh and accused Vijay was also identified by Ct. Rajesh as assailant of the present incident. PW7 further deposed that accused Vijay was arrested by the IO. PW7 identified accused Vijay before the court during the trial. PW5 Ct. Kulbir deposed more or less on the same lines as that of PW7. PW5 and FIR No. 937/14 State v. Vijay and others Page 7/24 PW7 were cross examined on behalf of accused. As PW5 failed to identify the accused Vijay, he was also cross examined by Ld. Additional PP for the state with the permission of the court.
14. PW8 SI Yogesh Kumar deposed qua the manner and his involvement in the present case being the Investigating Officer. PW8 deposed more or less on the same lines as that of PW2 Ct. Ombir. PW8 also relied upon the documents exhibited by PW2 and PW6 during their testimony. In addition to that, PW8 exhibited on record the tehrir as Ex. PW8/1, site plan prepared at the instance of Ct. Rajesh as Ex. PW8/2. PW8 further deposed that HC Puran Mal produced the damaged wireless set and same was taken into possession by PW8 vide seizure memo Ex. PW8/3. PW8 further exhibited on record blood samples of accused Vijay and that of Ct. Rajesh collected from hospital as Ex. PW8/4 and Ex. PW8/5 respectively. PW8 recorded disclosure statement of accused Vijay as Ex. PW8/6. PW8 further exhibited on record the seal of YK to Ct. Ombir vide handing over memo Ex. PW8/7 and after depositing the case property in malkhana, he received seal of YK from Ct. Ombir vide memo Ex. PW8/8. PW8 further exhibited on record MLC of accused Vijay as Ex. PW8/9. PW8 further deposed that after completion of investigation, he submitted the charge sheet against both the accused persons. PW8 identified both the accused persons present before the court during trial. PW8 was cross examined on FIR No. 937/14 State v. Vijay and others Page 8/24 behalf of accused.
15. PW9 ASI Puran Mal deposed that on 26.11.2014 he was on duty at gate of Khanna Stadium. At about 06.00 - 06.30 PM, public persons informed him that the police official present near Deer Park gate have been assaulted by some persons with stones. PW9 further deposed that he immediately rushed towards the spot and found Ct. Rajesh in injured condition and his wireless set was lying in damaged condition. PW9 took Ct. Rajesh to AIIMS Trauma Centre where he was treated and SI Yogesh Kumar also reached there to whom damaged wireless set was produced and he took the same into police possession. PW9 was cross examined on behalf of accused.
16. During trial the accused persons have admitted documents while recording their statement u/s 294 Cr.P.C. i.e. DD no. 61B, PS Safdarjung Enclave dated 26.11.2014 as Ex. A1, complaint u/s 195 Cr.P.C. given by ACP S.P. Tyagi, dated 25.01.2015 as Ex. A2 and FSL report dated 02.05.2017 prepared by Dr. Garima Chaudhary as Ex. A3.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.
17. Statement of accused persons were recorded whereby they denied their involvement and claimed to have been falsely implicated in the present matter. Accused persons opted not to FIR No. 937/14 State v. Vijay and others Page 9/24 lead DE.
ARGUMENTS:
18. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony has remained unrebutted. It is further submitted that the medical evidence and forensic evidence lead on record corroborated the testimony of prosecution witnesses who withstood the test of cross examination and their testimony remained uncontroverted. That on a combined reading of testimony of prosecution witnesses, offences U/s 186/353/307 IPC and u/s 3 of Prevention of Damage of Public Property Act, 1984 are proved against the accused Vijay and offence u/s 160 IPC is proved against both the accused persons beyond reasonable doubt.
19. On the other hand, Ld. Counsel for accused persons has argued that there is no legally sustainable evidence against the accused persons. It is argued that there are material discrepancies and contradictions in the testimony of prosecution witnesses who are police witnesses which cannot be relied upon. It is further argued that none of the independent public witness has identified the accused persons and the one who deposed has failed to support the case of the prosecution in any manner. It is further FIR No. 937/14 State v. Vijay and others Page 10/24 submitted that the testimony of injured is also full of contradictions, thus, the case of the prosecution has not been established beyond reasonable doubt. Hence, the accused persons deserves to be acquitted.
FINDINGS:
20. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused persons have been heard. Evidences and documents on record also perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. The accused persons are indicted for the offences u/s 186/353/307 IPC, u/s 160 IPC and u/s 3 of Prevention of Damage of Public Property Act, 1984.
21. After appreciating the evidence lead on record minutely it is found that, there are material contradictions and discrepancies appearing in the testimony of police witnesses including the complainant/injured that makes the story of prosecution highly doubtful and their testimonies do not inspire confidence of the court and therefore cannot be acted upon. Hence, accused persons are entitled to be acquitted due to reasons as follows:-
22. There were two independent public persons who were cited as witness by the prosecution i.e. Manoj and Jaspal. PW FIR No. 937/14 State v. Vijay and others Page 11/24 Jaspal remained unserved being untraceable so he was dropped from the list of witnesses whereas Manoj was examined as PW3. As per the prosecution, this witness caught hold of the accused Vijay after he tried to flee away after assaulting the victim Ct. Rajesh and he was produced before the police by this witness. During examination in chief PW1 narrated the incident of assault however, he failed to identify the accused persons in the court during the trial. This witness was cross examined by the Ld. Additional PP for the state but even during his cross examination PW3 categorically denied the identity of the accused Vijay being the assailant in this case. Above all, no where in his examination in chief PW3 has stated to have caught hold the accused himself or produced the same before the police which is also contradictory to the case of prosecution and testimony of police witnesses. Thus, the testimony of PW3 does not support the case of the prosecution either on the aspect of identification of the accused or otherwise except that Ct. Rajesh was assaulted in incident by some one.
23. The other material witness of the prosecution was PW6 ASI Rajesh Kumar who was assaulted in the incident. The prosecution has heavily relied upon the testimony of PW6 being the victim in this case. After going through the testimony of PW6 vis-a-vis the testimony of other police witnesses, the testimony of PW6 does not inspire confidence as far as identity of the accused FIR No. 937/14 State v. Vijay and others Page 12/24 persons is concerned. This court is of the view that the identity of both the accused persons have not been established beyond reasonable doubt by the deposition of PW6.
24. Accused Santosh has been charged for the offence punishable u/s 160 IPC. Section 159 IPC defines the offence of affray which says that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. Section 160 IPC provides punishment for the same. PW6 ASI Rajesh Kumar in his examination in chief identified the accused Santosh as one of the person who was causing nuisance to the public while loudly using abusive language with his other associates and disturbing the public peace. Admittedly, no TIP of accused Santosh was conducted in this case at any point of time during the investigation nor he was named as an accused in the FIR. The arrest of the accused Santosh has taken place on 04.12.2014 whereas the incident allegedly happened on 26.11.2014. In such circumstances the Test Identification Parade of accused Santosh was mandatorily required to establish his identity being the accused.
25. PW6 in his examination in chief stated that on 04.12.2014, he came to see IO of the case to know the status of the same and saw the accused Santosh present with the IO and this is how he identified the accused Santosh being one of the person committed FIR No. 937/14 State v. Vijay and others Page 13/24 affray. Neither the IO nor any other witness of the prosecution has deposed in their testimony as to how the accused Santosh was traced or found involved in this case and was called to the police station on 04.12.2014. It cannot be a coincidence as stated by the PW6. There is no other witness apart from PW6 who has stated about the role of accused Santosh being involved in this case. PW6 in his statement Ex. PW6/1 has stated that the three persons who were committing nuisance were dispersed by PW6 and they left from there. Further, PW6 during his cross examination admitted that no written proceedings were conducted or legal action was taken by him against the accused Santosh and his associates who were creating nuisance at public place. None of the independent public witness has identified the accused Santosh or attributed his role in this case in any manner. In view of the above, the ingredients of section 160 IPC are not made out against the accused Santosh. The identity of the accused Santosh is also doubtful in view of the discussion above. Thus, no offence u/s 160 IPC is made out or proved against the the accused Santosh.
26. Now coming to the role of accused Vijay. The injuries sustained by the PW6 Rajesh and the happening of incident in question has been duly proved on record by the testimony of PW3, PW4 and PW6 and it has not been out rightly disputed by the accused Vijay except his role as the perpetrator of the crime.
FIR No. 937/14 State v. Vijay and others Page 14/24As per PW6, accused Vijay was apprehended on the spot by the public persons. PW6 in his examination in chief identified the accused Vijay who inflicted injury on his head. As observed in the preceding paragraphs that the public person Manoj PW3 has categorically denied the involvement of the accused Vijay in his deposition and failed to identify him as the assailant so he has not corroborated the version of PW6. Apart from PW6, none of the other prosecution witnesses have testified to have seen the accused assaulting the victim Ct. Rajesh. Hence, the testimony of PW6 is the crucial piece of evidence which is to appreciated to see if it has established the role of accused Vijay in this case as assailant.
27. PW6 during his cross examination while replying to the question put by the Ld. Defence Counsel stated that the assailant attacked him with the tile on the back of his head by coming from the side whereas in his previous statement Ex. PW6/1, the direction of the assailant is not stated so rather it is stated that the assailant came from the back side and suddenly hit on his head. This is a major discrepancy and the material improvement made by PW6 in his version recorded before this court which goes to the root cause of the case of prosecution. It is further relevant to note that PW6 during his cross examination stated that after sustaining injury on his head he fell down and his eyes were closed for few moments and he regained his consciousness after FIR No. 937/14 State v. Vijay and others Page 15/24 a short while. It is also admitted case of the prosecution that the assailant after hitting the victim ran away from the spot, later on after short chase he was apprehended by the public persons. Meaning thereby, PW6 did not have the opportunity to immediately saw the accused Vijay to be certain about assailant who hit him.
28. It has come in the testimony of PW2 Ct. Ombir that accused Vijay was produced in the hospital where the injured Ct. Rajesh was under treatment and he identified him being the assailant. When a person is produced in custody of police and projected as culprit then the witness who has not seen the assailant at the time of incident believe such person to be the assailant. Such identification has not much value. Admittedly, no TIP proceedings qua accused Vijay was conducted in order to ascertain his identity as the assailant. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.
FIR No. 937/14 State v. Vijay and others Page 16/2429. It has been held in the judgment passed by Hon'ble Apex Court in case titled as "Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38", the following conclusion is relevant:
"Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
30. In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127], the Hon'ble Supreme Court held :
"It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court."
31. It is also important to note that injured Ct. Rajesh when produced before the doctor was conscious and fit for statement but he did not name his assailant as the name is not recorded in the MLC Ex. PW4/A. If the victim was already aware about the name of his assailant he would have told the name to be recorded in the MLC but it is not the case herein. Thus, in view of the discussion above, it can be safely concluded that testimony of PW6 could not establish the identity of the accused Vijay being FIR No. 937/14 State v. Vijay and others Page 17/24 the assailant beyond reasonable doubt.
32. PW5 Ct. Kulbir Singh who was handed over the accused Vijay by the public persons has produced accused before the IO at the hospital has also failed to identify the accused Vijay during his deposition recorded before the court. PW5 in his examination in chief categorically stated that he is unable to identify Vijay as accused. During cross examination by the Ld. Additional PP for the state also PW5 remained unable to identify the accused Vijay. Thus, his testimony also failed to corroborate the version of PW6 as far as identity of the accused Vijay is concerned.
33. Another witness PW7 Ct. Pawan Kumar was also stated to be with PW5 Ct. Kulbir who produced the accused Vijay before the IO in the hospital. The testimony of PW7 contained material discrepancies which also failed to establish the identity of accused Vijay as assailant in this case. First of all, PW6 no where in his examination in chief stated about the arrival of Ct. Pawan at the spot along with Ct. Kulbir, there by casting doubt on his presence. Further, during cross examination, PW7 stated that he had not seen the person who assaulted Ct. Rajesh. Moreover, as per PW7 Ct. Pawan Kumar, accused Vijay was produced by the public persons and in this case the public person was Manoj who has already turned hostile and has failed to identify the accused Vijay. Thus, the testimony of PW7 is not corroborated by either FIR No. 937/14 State v. Vijay and others Page 18/24 PW5 Ct. Kulbir or PW3 Manoj Kumar as far as identity of the accused Vijay is concerned.
34. As per the prosecution the weapon of offence i.e. a piece of tile was recovered in this case at the instance of accused Vijay, seized vide seizure memo Ex. PW2/C. Admittedly, the seizure memo does not bears the signatures of any independent public witness as no independent public person was made to join as a witness to the recovery proceedings despite there being availability of public persons. Thus, in absence of the public witness a doubt is casted upon the recovery itself.
35. PW2 Ct. Ombir was examined as the recovery witness. First and foremost, no DD entry of the departure of the PW2 Ct. Ombir from the PS to the spot at the relevant point of time is placed on record to show his presence or participation in the investigation. Further, in his examination in chief, PW2 stated that the tile recovered was not stained with blood which contradicts the report of forensic lab as per which the blood was detected on the tile sent for examination and the DNA generated from which also matched with the DNA generated from the clothes of victim and his blood gauze. Thus, the possibility of tampering or planting of weapon of offence cannot ruled out. PW2 along with the IO was the person who attended the call and FIR No. 937/14 State v. Vijay and others Page 19/24 visited the spot initially but in his cross examination he did not find tile at the spot nor he could see any blood stains at the spot. It is not the case of the prosecution that the tile was hidden somewhere beyond the visibility of the public at large so any discovery of the same at the instance of accused loses its relevance. Above all, the place of recovery of the tile is also not reflected in the site plan prepared by the IO exhibited as Ex. PW8/2. In view of the discussion above, the recovery of the weapon of offence at the instance of the accused Vijay and its connection in this case has become highly doubtful.
36. As per the case of prosecution the wireless set which is a public property was damaged by the accused in this case and same was seized by the IO vide seizure memo Ex. PW8/3. Admittedly, the damaged property was produced by PW9 ASI Puran Mal but the seizure memo does not bear his signatures at any point. It is pertinent to note that the seizure memo Ex. PW8/3 has been witnessed by PW2 Ct. Ombir and has been prepared by PW8 SI Yogesh Kumar but the case property has not been exhibited in either of the testimony of the aforesaid witnesses. In fact, the case property i.e. wireless set has never been produced before the court during the trial. Thus, this aspect remained unproved by prosecution.
FIR No. 937/14 State v. Vijay and others Page 20/2437. There are numerous material discrepancies and infirmities in the testimony of IO PW8 SI Yogesh Kumar and other police witnesses which raises doubt about the manner of the investigation and the lapses affects the case of prosecution. During his cross examination PW8 stated that when he recorded statement of injured Ct. Rajesh in the hospital, at that time, HC Puran and two public persons namely Manoj and Jaspal were present and accused was not present at that time. This statement is in complete contradiction to the testimony of other police witnesses as per whom the public witnesses accompanied them to the hospital when accused was produced before the IO. Therefore, presence of accused was inevitable along with the public witnesses when the statement of Ct. Rajesh was recorded. In view of the statement of the PW8 the presence of accused at the hospital becomes doubtful. Further, PW3 Manoj has no where in his deposition stated to have accompanied the police officials and accused to the hospital which further create dent in the story of the prosecution.
38. PW2 Ct. Ombir in his examination in chief stated that the IO prepared site plan but PW2 has not stated anywhere in his examination in chief that PW6 Ct. Rajesh accompanied the police team to the spot so the claim of PW8 SI Yogesh Kumar that the site plan was prepared at the instance of Ct. Rajesh is found to be doubtful. Moreover, the site plan Ex. PW8/2 does not FIR No. 937/14 State v. Vijay and others Page 21/24 bear the signatures of the PW6. Further, as per PW2 accused Vijay took the police team to the spot and got the weapon of offence recovered. Now, if accused and the victim both accompanied the police team to the spot then why the victim PW6 was not made witness to the recovery of the weapon of offence at the time of preparing of its seizure memo.
39. Another discrepancy in the testimony of police witnesses is that, PW5 Ct. Kulbir Singh in his examination in chief stated that when he reached at the spot along with Ct. Pawan, the injured police official was also present there and he was taken to the hospital by public persons whereas as per PW9 ASI Puran Mal, he has taken Ct. Rajesh to Trauma Centre from the spot and nowhere in his examination in chief he has stated the presence of Ct. Kulbir and Ct. Pawan on the spot having custody of accused Vijay. The aforesaid discrepancies appearing in the testimony of police witnesses raises doubt on the material aspects of the investigation as projected by the prosecution, thus, does not inspire the confidence of the court.
40. The entire case of the prosecution is based upon the testimony of police officials. No doubt it is a settled position of law that the testimony of police officials cannot be doubted or brushed aside merely on the ground they being police officials FIR No. 937/14 State v. Vijay and others Page 22/24 but this is also settled position of law that the testimony of police officials is to be considered with high standard of evaluation and scrutiny as compared to independent public witnesses. Reliance is placed on judgment titled as Rifakatalikhan v. State of Maharashtra, 1994(4) Bom CR 75, 1993 CriLJ 3844 passed by Hon'ble Bombay High Court.
41. In the instant case there are several material infirmities and contradictions in testimony of police witnesses that goes to the root of the case and completely shaken the veracity of their testimony and make the case of prosecution highly doubtful. The contradictions and discrepancies discussed in the preceding paragraphs are material enough to demolish the credibility and truthfulness of testimony of police witnesses including the victim PW6 especially qua the identification of accused Vijay. Absence of corroboration by the independent public witness in his deposition also weakens the case of the prosecution. The identity of the accused persons and the case property is found to be doubtful in view of the evidence discussed above.
42. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal FIR No. 937/14 State v. Vijay and others Page 23/24 trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt if any in the prosecution story and such reasonable doubt entitles the accused to acquittal.
CONCLUSION
43. In view of the evidence lead on record, this Court is convinced that prosecution has failed to prove its case beyond reasonable doubt. The identity of accused persons could not be established on record beyond reasonable doubts. The evidence coming on record entitles the accused persons for the benefit of doubt. Therefore, the accused persons namely Vijay and Santosh are hereby acquitted of all the charges levelled against them in the present case. Digitally signed by VISHAL VISHAL PAHUJA PAHUJA Date:
2024.11.19 15:58:00 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 19.11.2024 ASJ (FTC) -02, South, Saket Courts, Delhi.
Containing 24 pages all signed by the presiding officer.Digitally signed by VISHAL
VISHAL PAHUJA PAHUJA Date:
2024.11.19 15:58:06 +0530 (VISHAL PAHUJA) ASJ (FTC) -02, South, Saket Courts, Delhi.FIR No. 937/14 State v. Vijay and others Page 24/24