Delhi District Court
State vs . Balvinder Singh @ Bunti & Ors on 24 May, 2022
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA, KARKARDOOMA COURTS, DELHI
FIR No. 95/2012
PS - Jagatpuri
U/s 323, 341, 506 r/w 34 IPC
State Vs. Balvinder Singh @ Bunti & Ors
JUDGMENT
A. SL. NO. OF THE CASE : 80156/16
B. DATE OF INSTITUTION : 06.11.2012
C. DATE OF OFFENCE : 08.03.2012
D. NAME OF THE : Baldev Kumar Sharma
COMPLAINANT S/o late Sh. Keshar Rao Sharma
E. NAME OF THE ACCUSED : 1) Balvinder Singh @ Bunti S/o
PERSONS Trilochan Singh
2) Gaurav Bhandari @ Golu S/o
Sh. Swantantra Bharat Bhandari
3) Shailender Sharma @ Sonu
S/o Sh. Satish Chand Sharma
F. OFFENCE : U/s 323/341/506/34 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 24.05.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused persons are produced before the court to stand trial for the offences punishable u/s 323, 341 & 506 r/w 34 of Indian Penal Code, 1860.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 1 of 26
2. In brief, facts of the case as per prosecution are that upon receiving a DD no. 37A on 08.03.2012, IO ASI Sahib Singh alongwith Ct. Surender reached at the spot i.e. Chandu Park, Near Sita Ram Mandir, Old Anarkali Delhi. They were informed that the injured was already taken to the Hedgewar hospital and then they reached the Hedgewar Hospital and collected the MLC no. 562/12 of complainant Sh. Baldev Sharma as per which injuries were stated to be "alleged h/o assault u/o blunt".
3. Thereafter, the IO recorded the statement of injured/complainant at the hospital wherein inter alia he stated that on 08.03.2012, at about 09.30 PM, he was sitting at 9 Old Anarkali, Near Sita Ram Mandir when Sonu Bhardwaj, Bunty and Bhandari @ Golu came and asked him about the whereabouts of one "Arun Handa". It is alleged that the complainant told these persons that he cannot say anything regarding whereabouts of such person and then accused Bhandari @ Golu slapped him and caught hold of him and in the meanwhile, accused Bunty and Sonu Bhardwaj started beating the complainant with stick (danda) due to which the complainant fell on the street. He further alleged that the accused persons also hit him with fist and kicks and they threatened the complainant with his life after which they ran away. Thereafter, some public persons and complainant's wife took him to the Hedgewar Hospital for treatment.
4. Upon the said complaint, a FIR u/s 323/341/506/34 IPC was lodged by the IO. During the course of investigation, IO prepared the site plan at the instance of complainant, recorded the statements of witnesses, collected the MLC and started searching for the accused persons, however, he could not find them. Further, on 14.03.2012, Balvinder @ Bunty, Shailender @ Golu and Gourav @ Bhandari surrendered before the Ld. Magistrate, Karkardooma Court and they were granted bail, the offence being bailable in nature. After FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 2 of 26 completion of investigation, IO filed the charge sheet against the accused persons for the offences punishable u/s 323,341 & 506 r/w 34 IPC.
5. Accused persons appeared before the court on 15.07.2013 and copy of charge-sheet was supplied to them as per Section 207 Cr.P.C. Further, accused persons were charged for the offences u/s 323,341 & 506 r/w 34 IPC on 21.10.2013 by the Ld. Predecessor of this Court to which they pleaded not guilty and claimed trial.
PROSECUTION'S EVIDENCE:
6. In order to prove its case, prosecution has examined following witnesses:
6.1 PW-1 Baldev Kumar deposed that on 08.03.2021 at about 09.30 PM, he was sitting at the shop of his cousin brother at 9, Old Anar Kali, Near Sita Ram Mandir, Krishna Nagar, Delhi- 51 and suddenly Sonu Bhardwaj, Bunty and Golu @ Bhandari along with 50 other co-associates came at the said spot and started beating him. He further deposed that the aforesaid three accused persons were leading the mob and 50 co-associates were following them. He further deposed that they gave him beatings with dandas and some pointed objects and blades and he became unconscious. He further deposed that accused persons were asking about "Arun Handa" and they also threatened to kill him. He deposed that at about 02.00 AM, he regained consciousness at Hedgewar Hospital where IO ASI Saheb Singh along with one police official met him and recorded his statement. He further deposed that he had given statement to the IO that his gold chain and about Rs. 270/- was also robbed FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 3 of 26 by the said accused persons and he had not put his signature in his statement at that time. He further deposed that thereafter in the morning hours he went to the PS where IO and SHO RS Adhikari met him and instructed him to sign on the blank documents. He further deposed that IO had not taken his blood stained clothes which he had brought before the court. He further deposed that he had shown the spot to the IO on the next day of the incident. PW-1 correctly identified the accused persons present in court during the trial.
PW-1 was cross-examined at length by Ld. Counsel for the accused persons wherein inter alia he stated that he was sitting alone at the time of incident and was waiting for his family doctor Mr. Handa. He further stated that he did not make any call to 100 number as his physical condition did not permit him to make such call and he failed to point out to the particular accused which caused him the injuries. He stated that all three accused persons came in a Santro car, got out simultaneously and attacked him in such a ferocious manner that he nearly fainted and he almost got killed. He further stated in his testimony that he does not know who took him to the hospital and he woke up at about 1:00 to 1:30 AM after getting treatment from the doctor. He further stated that SHO RS Adhikari called him to the PS in the morning at about 09.00 AM and asked him to sign blank papers and the SHO treated him very badly. He further stated that in his opinion police did not file a correct charge-sheet in the present case and the charge-sheet is not as per his signed statement given by him in the hospital.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 4 of 26 6.2 PW-2 Doctor Shalini Gupta, deposed that on 08.03.2012, she was posted at Dr. Hedgewar Hospital as CMO and on that day she had examined one patient namely Baldev Sharma S/o Late Sh. Kesho Ram, aged about 49, Male. She further stated that he had come with alleged history of assault and after conducting his medical examination, she prepared the MLC Ex. PW-2/A. She further stated that the patient was referred to Ortho, Surgery and ENT for further treatment. She was not cross-examined by the Ld. Counsel for the accused persons despite opportunity.
6.3 PW-3 ASI Mangat Singh/ Duty Officer deposed that on 09.03.2012, he was posted at PS Jagatpuri as ASI and on that day, he was working as duty officer and his duty hours were from 12.00 midnight to 08.00 am. He further deposed that on that day at about 12.30 am, Ct. Surender handed over to him a rukka for registration of FIR sent by ASI Sahib Singh. He further deposed that he made DD/Kaimai entry Ex. PW-3/A (OSR). He further made endorsement on the rukka Ex. PW-3/B and on the basis of said rukka he got recorded the FIR Ex. PW-3/C (OSR) bearing FIR no. 95/12 PS Jagatpuri. Thereafter, he handed over the copy of FIR and Original rukka to Ct. Surender to further hand over the same to ASI Sahab Singh for investigation. PW-3 ASI Mangat Singh was not cross-examined by the defence counsel despite opportunity.
6.4. PW-4 Ct. Surender, deposed that on 09.03.2012, he was posted at PS Jagatpuri and on receiving a call, he alongwith ASI Sahab Singh visited Chandu Park near Old Anarkali, Delhi FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 5 of 26 where they came to know that injured Baldev Kumar Sharma has already been taken to Hedgewar Hospital. Thereafter, they reached at Dr. Hedgewar Hospital where MLC of the injured was collected by ASI Sahab Singh and his statement was also recorded. He further deposed that IO prepared the rukka and handed over the same to him for registration of FIR and accordingly, he visited the PS and got the FIR registered and collected the copy of FIR and rukka from the DO concerned and went to the spot and handed the said documents to IO. PW-4 further deposed that on 14.03.2012, he alongwith ASI Sahab Singh came to Karkardooma Court as the accused Balvinder, Shailender and one another whose name he do not remember had surrendered themselves before the court. He further stated that IO arrested the abovesaid accused persons before the court on 14.03.2012. He further stated that he do not remember as to which documents were prepared by IO. PW-4 was cross-
examined by Ld. APP for the State whereby he stated that he did not recollect the facts due to lapse of many years. He admitted that accused persons were interrogated and formally arrested by the IO and the documents were prepared in his presence.
PW-4 was cross-examined at length by Ld. Counsel for the accused wherein inter alia he stated that he was on duty on the date of incident from 08.00 pm to 08.00 am. He stated that he do not remember the exact time when he alongwith IO left the PS. He stated that they reached the hospital at around 12.30 midnight and stated that complainant Baldev Kumar Sharma and his wife were found present in the hospital. He stated that complainant had put his signature on the complaint/statement FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 6 of 26 written by the IO in the hospital and stated that he do not remember the exact time when he took rukka to PS. He further stated that he do not remember the exact time when they reached Karkardooma Courts on 14.03.2012, however he stated that they reached the court before 02.00 PM. He further stated that the accused persons were arrested at around 02.35 pm onwards.
6.5. PW-5 Retired ASI Sh. Sahib Singh/ IO deposed that on 08.03.2012, he was posted at PS Jagatpuri, as ASI and on that day he had received DD no. 37A through DO regarding a quarrel. He further deposed that he alongwith Ct. Surender reached at the spot and got the information that the injured had been taken to the Hedgewar hospital by PCR Van. Thereafter they visited Hedgewar Hospital, and met with complainant/ injured Baldev Kumar and recorded his statement and same was attested by PW-5. He further deposed that he prepared the rukka Ex. PW5/A and same was handed over to Ct. Surender for the registration of FIR from PS Jagatpuri and he alongwith injured Baldev Kumar reached at the spot. He deposed that after registration of FIR, Ct. Surender also reached at the spot i.e Chandu Park, near Sitaram mandir, Old Anarkali, Delhi alongwith original rukka and copy of FIR.
PW-5 further deposed that he prepared the site plan at the instance of complainant Ex. PW5/B, recorded his supplementary statement and also recorded the statement of witnesses u/s 161 Cr. P.C. He further deposed that on 14.03.2012, he arrested all the three accused persons at the instance of complainant vide FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 7 of 26 arrest memos Ex. PW4/A, Ex. PW4/B and Ex. PW4/C respectively and he personally searched them vide personal search memos Ex. PW4/D, Ex. PW4/E and Ex. PW4/F respectively. He further deposed that he had collected the MLC from the Hedgewar Hospital Ex. PW2/A and thereafter, upon completion of the investigation, he prepared the charge-sheet and same was filed before the Court. PW-5 correctly identified the accused persons present in court.
PW-5 was cross examined at length by Ld. Defence counsel wherein inter alia he stated that when he reached the spot, he got the information from the public that injured has been taken to the hospital. He stated that after reaching the hospital he met the complainant/injured and stated that he does not know who had reported the incident to the police and he had reached the hospital on a motorcycle. He stated that the statement of the injured was recorded by him in the presence of Ct. Surender. He stated that he do not remember that whether injured had apprised him that the assailants had come in a Santro Car. PW-5 stated that the accused persons were arrested from Araam Park near Chandu Park from their respective homes and at the time of arrest of accused persons, injured and Ct. Surender had accompanied him. He further stated that all the documents i.e. disclosure statements, arrest memos and personal search memos of the accused persons were prepared by him at the homes of the accused persons. He stated that he do not remember about the time he had taken in preparing those documents and stated that on the day of arrests of the accused FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 8 of 26 persons, he had made the entry in the daily register but he do not remember the no. of the said diary entry.
7. After completion of the prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded on 24.03.2022, wherein accused persons stated that false FIR were lodged against them by the police. They further stated that on 08.03.2012, it was festival of holi and between 09.00 to 10.00 pm, they all three were standing at the chowk of Sitaram Mandir, Old Anarkali Delhi and one white Santro car stopped in front of them and said "baldev ko jante ho" and on that, they pointed out to the complainant who was sitting at the barber shop, just in front of Sitaram Mandir. They further stated that the said Santro car had two people inside it and those two people met complainant Baldev and a scuffle took place between them and both the people fled in their car. They further stated that thereafter, Baldev asked them about the whereabouts and identity of those people to which they told him that they don't know them. They further stated that Baldev did not find that response satisfactory and falsely implicated them in the present case and that they have not inflicted any injury to the complainant. They further stated that they wish to lead defence evidence and accordingly, the matter was fixed for defence evidence.
DEFENCE' EVIDENCE:
8. In order to prove its case, defence has examined following witness:
8.1 DW-1/Balvinder Singh deposed that on 08.03.2012 at about 09.30 pm, it was holi on that day, he alongwith Shailender and Gaurav Bhandari were standing at the Sita Ram Mandir Chowk, then one car i.e. Santro white colour came and stopped in front of them and asked about Baldev. He further deposed that FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 9 of 26 on that, he informed him and pointed to the complainant Baldev who was sitting nearby at the barber's shop and Baldev was also watching them. He further deposed that the car went to Baldev and one person came out of the car and they both were having a conversation and then a scuffle broke out between them. He deposed that the assailant sat in the said santro car and fled from the incident. DW-1 further deposed that Baldev asked them about the identity of the assailant to which they informed him that "unse tere bare me pucha, humne bata dia". He further deposed that they did not know the assailant and he had no relation with him.
He deposed that Baldev warned them that either they should disclose the identity of the assailant or he will falsely implicate them. During his testimony, DW-1 denied all the suggestions put forth by the Ld. APP for the State.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
9. It was argued on the behalf of the defence that the prosecution has failed to make out any case against the accused persons and they deserve to be acquitted. It was submitted by Ld. Counsel for accused persons that the accused have been falsely implicated by the police officials in the present case and the entire prosecution story is made-up and no offence has been committed by the accused persons. He further submitted that the complainant and accused persons were known to each other.
10. Ld. Counsel for the accused persons argued that no such incident as alleged by the prosecution took place and the entire case is a concocted story made by the complainant to take revenge from the accused persons as the complainant was in fact beaten by unknown assailants and the complainant FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 10 of 26 falsely implicated the accused persons as they failed to disclose the names of the assailants to the complainant.
11. He further submitted that the evidence produced by the prosecution is inconsistent with regard to the part played by the accused persons and the testimony of the essential witness i.e. PW-1/complainant is contradictory and full of embellishments. Ld. Counsel for defence has argued that the PW-1/ complainant has not been able to give a clear testimony in court and the version put forth by the prosecution is not reliable enough to convict the accused persons.
12. Ld. Counsel for defence has argued that the blood clothes of the complainant were never even seized or sent to CFSL or any laboratory to prove that the blood soaked on the shirt actually belongs to the complainant. He further argued that the complainant in his testimony has stated that he has brought the blood stained clothes in the court, however the same has not been produced as a piece of evidence before the court.
13. Ld. Counsel for defence has also strongly argued that there are material contradictions and improvements in the testimony of PW-1/ complainant and that the complainant has himself stated that the police has not filed a correct charge-sheet in the court and that the charge-sheet is not as per his statement given by him in the hospital. It is argued that the complainant has himself contradicted the version of the prosecution and there are material contradictions and improvements from his earlier statement made to the police. Finally, it was vehemently argued on behalf of the accused persons that they have not committed the offence they are charged for and prosecution has failed to discharge its burden of proof..
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 11 of 26
14. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt especially, through the evidence of the complainant/PW-1 i.e., the injured/ complainant and the doctor /PW-2. He has further argued that the prosecution has been able to establish that the accused persons has committed the offence of voluntary causing hurt, wrongfully restraining the complainant's way and extending life threats to him on 08.03.2012. Prosecution has further argued that there is sufficient evidence against the accused persons in the present matter to convict them for the offences punishable under sections 323, 341, 506 r/w s. 34 IPC.
FINDINGS WITH REASONS:
15. Arguments were heard at length from both the sides and the case file has been carefully perused. Briefly stated, it is the case of the prosecution as put before the court that on 08.03.2012 at about 9.30 PM when the complainant was sitting outside 9, Old Anarkali, Sita Ram Mandir, Delhi then the accused persons came and inquired about one "Arun Handa" and upon being unsatisfied with his response, accused Gaurav @ Golu slapped him. It is further alleged that Accused Balvinder @ Bunti and Shailender @ Sonu then started hitting him with dandas/ stick and with their fists and legs and thereafter they all ran away threatening the complainant with his life. It is alleged that upon receipt of the information through DD No. 37A, the IO alongwith Ct. Surender/PW-4 reached the Hedgewar Hospital where they recorded the statement of the victim/complainant. It is further the story of the prosecution that public persons and his wife took him to hospital. The accused persons surrendered in court on 14.03.2012 and were released on bail.
16. Considering the allegations of the prosecution and the material available on record, the accused persons were charged for offences punishable under FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 12 of 26 Sections 323, 341, 506 r/w s. 34 IPC by the Ld. Predecessor of this Court vide order dated 21.10.2013. Accordingly, the accused persons had faced trial for offence of voluntarily causing injuries, wrongfully restraining the complainant and criminal intimidation which are punishable u/s 323, 341 & 506 IPC respectively.
17. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
18. At this stage, it is relevant to understand the offence of "voluntarily causing hurt" which is made punishable under section 323 IPC, which is reproduced hereinafter for better understanding:-
323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
"Wrongful restraint" is defined under section 339 IPC, which reads as under:-
339. Wrongful restraint.-
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 13 of 26 person has a right to proceed, is said wrongfully to restrain that person.
Exception.- The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
The offence of wrongful restraint is punishable under section 341 IPC with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs. 500/- or both.
19. The accused persons have also faced trial for offence of criminal intimidation which is made punishable under section 506 IPC, which provides as follows:-
506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.-and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Criminal intimidation is defined under section 503 IPC which inter alia includes threatening given by one to another with injury to his person and thereby includes the specific allegation of criminal intimidation as alleged by the prosecution in the present case.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 14 of 26
20. To prove the guilt of the accused for the offences they are charged with in the present matter, it is incumbent upon the prosecution of prove the following facts:
a) that the accused persons have with common intention, voluntarily caused hurt to the complainant by use of danda/stick and with fists and blows with legs;
b) that the accused persons with common intention voluntarily obstructed the complainant when he was standing outside the shop of his cousin and prevented him from proceeding in a particular direction in which the complainant had right to proceed; and
c) that the accused persons threatened the complainant with his death after committing the offence of hurt and before escaping from the spot.
21. The most essential witness in the present case is the complainant himself who has allegedly suffered injuries at behest of the accused persons. The complainant in his statement given to the police Ex. PW-1/A has inter alia stated that while he was sitting at the spot about 9.30PM, the accused persons came there inquired about one "Arun Handa" and upon being dissatisfied with his response, started beating him with dandas/sticks due to which he fell on road after which they inflicted beatings on him with fists and blows. Complainant in his statement given to the police further alleged that the accused persons ran away from there after giving life threats to him if ever a complaint is made regarding the incident. It is pertinent to note here that the FIR, being one of the essential piece of evidence also contains the same version of the incident as stated above.
22. During the testimony of PW-1/ complainant recorded in court on 4.08.2014, he inter alia stated that he was sitting outside the shop of his cousin FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 15 of 26 on 8.03.2012 and about 9.30PM the three accused persons alongwith 50 co- associates came at the spot and started beating him with dandas, some pointed objects and blades, after which he became unconscious. He deposed that at 2 AM he regained consciousness in the hospital where he met IO and one more police official who recorded his statement, however they did not mention the fact regarding robbery of gold chain and cash Rs. 270/- by the accused persons. He further deposed that he did not sign his statement and next day in the morning, he was called by the SHO in the police station and he was asked to sign on blank documents and police did not even take his blood stained clothes while collecting the evidence in the present case.
23. A bare perusal of the testimony of the complainant shows that he had given an entirely different narration of the facts in his testimony vis-a-vis the FIR. It is very pertinent to notice that apart from the accused persons, complainant states that there were 50 other assailants who had beaten him and accused persons were leading the said mob. Complainant further deposed that he was beaten with pointed objects and blades in addition to dandas. However, another essential fact to be noticed is that the complainant deposed that the incident actually pertains to robbery of gold chain and cash and not mere voluntary causing hurt, as presented by the prosecution.
At this juncture, it is also necessary to refer to certain aspects of the cross examination of PW-1/complainant. During his cross-examination, complainant has stated that he was sitting alone outside his cousin's shop which was closed and waiting for his family doctor 'Handa'. He further stated that the accused persons came together in a Santro Car and he gave his signed statement to the police in the morning in the hospital. He further stated that next day the SHO called him at the PS at around 9 AM and asked him to sign on blank papers. He further stated that police did not file a correct charge- sheet in the case and it is not as per his signed statement given in the hospital.
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24. Perusal of the entire record reveals that there are two different versions of the primary facts pertaining to the alleged incident in the present matter. In the FIR and the version presented by the prosecution, which is clearly disputed by the complainant as revealed from his testimony given in the court, it is alleged that accused persons came at the spot, inquired about one "Arun Handa" and upon being dissatisfied with his response, started beating him with dandas, fists and blows and after threatening with his life, ran away from the spot. On the other hand, in the testimony given before the court, the complainant has deposed that about 50 other co-assailants apart from the accused persons came at the spot and also deposed regarding robbery committed by them of his gold chain and cash. It is for the first time during his cross-examination, complainant has stated that the accused persons arrived at the spot in a Santro Car.
These are two separate and completely different versions of the facts of the incident in the present case and are clearly varying with each other which are difficult to reconcile. It is beyond comprehension of this court that the complainant would forget such significant details regarding the number of accused persons, details of the offence committed against him and the mode and manner of commission of the offence while reporting the case to the police. Such facts pertaining to the number of accused involved or details of the several offences committed are not minor or trivial information but crucial and relevant facets pertaining to the incident alleged. It is noteworthy that the FIR Ex. PW-3/C in the present case is also completely silent on these material aspects of the incident alleged.
25. The observations of the Hon'ble Supreme Court in "Pandurang Chandrakant Mhatre and others Vs. State of Maharastra" [(2009) 10 SCC 773], are relevant to the present case and are being reproduced herein below:-
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38. It is fairly well settled that first information report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilize for contradicting or discrediting the testimony of other witnesses. In other words, the first information report cannot be used with regard to the testimony of other witnesses who deposed in respect of incident. It is equally well settled that the earliest information in regard to commission of cognizable offence is to be treated as the first information report. It sets the criminal law in motion and the investigation commences on that basis. Although, first information report is not expected to be encyclopedia of events, but an information to the police to be "first information report" under Section 154(1) must contained some essential and relevant details of the incident. A cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report.
Perusal of the FIR in the present case would reveal that the testimony of the complainant/PW-1 contains substantial improvements which goes to the root of the matter and completely discredits the testimony led by the complainant on record.
26. Complainant has himself stated that the investigative agency has not filed a proper charge-sheet in the case and also his blood stained clothes were not collected by the IO. Therefore, the record reveals that the complainant has remained dissatisfied with the course of investigation and he has not even filed any protest petition against the charge-sheet filed by the IO. As per the complainant the offence actually involves seriousness to the extent where he could have lost his life and the accused persons with their 50 co-associates committed robbery using deadly weapons. The investigation has however been conducted on aspect of voluntarily causing hurt by these accused persons to the complainant. The defence has alleged major contradictions and improvements in the testimony of the complainant. The court is required to exercise care and caution in cases where there are inconsistencies, improvements or exaggerations by the victim in his testimony to separate the truth from the untruth. Even where such contradictions and improvements are proved, the court is still required to sift through the evidence carefully in order to FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 18 of 26 ascertain whether the residuary evidence can become the basis of conviction of the accused. It has been well settled that minor contradictions, variations and omissions in the statement and testimony of the victim can be ignored and the court is not required to discredit the entire testimony of such witness. Be that as it may, this court is required to give a finding on the basis of the investigation conducted by the police and the evidence led by the prosecution during the trial.
27. PW-2 Dr. Shalini has proved the MLC of the complainant Ex. PW-2/A on record. PW-2 was not cross examined by the defence which shows that the injuries to the complainant have not been disputed by the accused. MLC PW- 2/A inter alia shows that there were several abrasions present at the right shoulder joint, right elbow joint, left elbow joint, bleeding from nose and abrasions on both knees. Further, there were multiple linear abrasions over the back of the victim and smell of alcohol is stated to be positive. PW-3/ Duty Officer has merely proved that he was handed over the rukka by Ct. Surender/PW-4 at about 12.30AM for registration of FIR.
PW-4 Ct. Surender deposed regarding accompanying the IO to the hospital for recording the statement of victim and regarding formal arrest of the accused persons on 14.03.2012 on their surrender applications in the court. PW-5/ IO deposed regarding receipt of DD No. 37A, and proceedings conducted thereafter whereby he recorded the statement of the victim in the hospital, prepared a rukka and later proceeded to the spot with the victim. IO also deposed that accused persons were arrested at the instance of the complainant on 14.03.2012. During the cross- examination, IO stated that he received the information regarding the offence at about 8.30PM whereas DD No. 37A which was the first information received by police regarding the commission of the offence, was received at 10.28PM and the complainant in his version states that the incident took place at about 9.30PM. Further during his cross-examination at one instance the IO stated that accused were arrested FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 19 of 26 from their homes near Chandu Park and that documents of arrest were prepared at homes of the accused persons, however, later he accepted the suggestion that accused persons were arrested in court on their surrender applications. Therefore, the testimony of the IO/PW-5 does not inspire much confidence and his testimony is self-contradictory and inconsistent.
28. From the comprehensive perusal of the testimonies of all the prosecution witnesses, it can be clearly inferred that the exact facts of the alleged incident have been neither brought forth before the court by the prosecution nor proved on record. The court is not oblivious of the fact that the injuries sustained by the complainant have been proved through MLC Ex. PW-2/A which clearly shows that the complainant had several injuries and the same has remained uncontested during the trial. Albeit the injuries are admitted, yet their cause and nexus between such injuries and accused persons was required to be established by the prosecution beyond reasonable doubt.
29. It is the cardinal principle of criminal law that the prosecution has to prove the guilt of the accused beyond all reasonable doubt. It is also well established that any material contradictions and material inconsistencies in the case of the prosecution shall go in the favour of the accused and while such contradictions exist, the accused shall not be convicted for the offence he is charged with. The prosecution is burdened to prove that there are no loopholes in the version put forth in the charge-sheet and in the considered opinion of this court any weaknesses in the prosecution's case is required to be carefully scrutinised as the accused person is presumed to be innocent unless proved guilty and under criminal jurisprudence he is required to be acquitted if there arises any doubt over the prosecutions' version.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 20 of 26
30. At this juncture, it is relevant to refer to the observations of the Hon'ble Supreme Court in "Krishnegowda v. State of Karnataka", [(2017) 13 SCC 98], which are as follows:
"27. Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the court, but if these contradictions create such serious doubt in the mind of the court about the truthfulness of the witnesses and it appears to the court that there is clear improvement, then it is not safe to rely on such evidence.
32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad daylight. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt."
Therefore, it is well- settled that when the contradictions and improvements in the story alleged by the prosecution and the testimonies of the witnesses are so significant and major which would go to the root of the matter, the court must not ignore the same. In the present case, there are considerable improvements as the complainant in his testimony has deposed regarding the involvement of 50 unknown assailants and robbery of his gold chain and cash, which is not the incident alleged in the FIR. In the considered opinion of this court, these are not trivial details or minor improvements which could have been forgotten due to lapse of time and per se sufficient to create a serious doubt over the credibility of complainants' testimony and to discredit the same.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 21 of 26
31. Reverting to the facts of the present case, this court has reached to the conclusion that there are material contradictions, improvements and inconsistencies in the version presented by the prosecution before this court which goes to the root of the case and substantial enough to impeach the credibility of the complainant/ PW-1. Further comprehensive perusal of the case has revealed the prosecution has not been able to discharge the burden of proving the guilt of the accused beyond reasonable doubt for the following reasons;
i. The facts of the incident narrated in the FIR and in complainant's testimony before the court entirely different as the complainant has deposed regarding beatings alongwith robbery of cash and gold chain in the court whereas the FIR is completely silent on this aspect;
ii. The FIR does not even vaguely mention that there were 50 other co-
associates alongwith the accused persons and such fact cannot be considered to be a trivial aspect of the incident in the considered opinion of this court and accordingly there are substantial and major improvements in the version of the incident in complainant's testimony;
iii. The fact that the accused persons came in a Santro car has been disclosed for the first time during the cross - examination of the victim and is a material omission from the FIR;
iv. The facts and circumstances under which the statement made to the police Ex. PW-1/A has been signed has remained unproved on record due to several different versions of the police and the complainant. The perusal of Ex. PW-1/A reveals that the IO recorded the same in the hospital at about 12.10AM of the next day i.e., 09.03.2012 whereas the complainant in his testimony has stated that he did not put his signature on his statement when he regained consciousness at about 2AM on 9.03.2012 and during his cross-examination he stated that he gave his FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 22 of 26 signed statement to the police at the hospital. Therefore, there are contradictions in the testimony of PW-1 himself which makes his testimony unworthy of credit and unsafe to rely upon;
v. Prosecution has failed to disclose as to how and who notified the police about the commission of the offence and throughout the trial, the said fact has not been proved or even averred on record;
vi. Complainant/ PW-1 has in his testimony stated that he was made to sign on blank documents by SHO, which creates a serious suspicion over the mode and manner in which the investigation has been carried out by the police in the present case. The shoddiness of the investigation is also revealed from the fact that the police has not made any efforts to recover the alleged weapon of offence or to seize the blood stained clothes of the victim which could have been sufficient corroborative evidence in the present case;
vii. The weapon of offence as alleged in the FIR is dandas and beating with fists and blows whereas in his testimony, complainant has deposed regarding use of some pointed objects and blades alongwith dandas. In the considered opinion of this court, the weapon of offence with which alleged injuries were caused is very essential aspect of the incident and goes to the heart of the matter and such grave improvement in the testimony only discredits the trustworthiness of the witness; and viii. Admittedly, the incident took place on the day outside a shop and PW-1 has admitted that several public persons were passing through the spot when the incident took place. The prosecution has not even recorded statement of any independent witness who could have given much needed corroboration to the testimony of the complainant which by itself has not inspired enough confidence of this court to convict the accused persons. Therefore, the lack of any independent witness to the alleged FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 23 of 26 incident despite the incident being committed in a market creates a suspicion over the prosecution's version.
Thus in view of the aforesaid inconsistencies and improvements, there arises clear and evident suspicion over the version placed on record by the prosecution. This court is required to give its observations of the basis of the evidence adduced by the prosecution before it and it is only when the same points towards guilt of accused beyond a reasonable doubt, the court must convict the accused. However, in cases where two views are possible the court must give the benefit of the doubt to the accused and acquit him for the offences charged.
32. This court has time and again witnessed that the complainants' in such like cases have expressed their displeasure during their deposition regarding the way in which the investigation has been conducted by the police. It is thus, extremely important in the interest of justice and for fairness of investigation that the complainants are regularly made aware about the progress of the investigation so that they can actively participate in the same and approach the concerned court, if the need so arises. The complainant is always at liberty to approach the courts during the investigation for its monitoring by the concerned Magistrate and after filing of the charge-sheet, by invoking the powers of the court u/s 173 (8) of the Cr.P.C for seeking further investigation on certain aspects. More often than not, shoddiness in the investigation at behest of the investigative agency creates a reasonable doubt, leading to acquittal of the accused and loss of the victims' faith in the criminal justice system, having already spent years awaiting the outcome of the investigation followed by trial.
33. At this stage, albeit the court is not required to look into the evidence led by the defence, as the prosecution has failed to prove its case beyond reasonable doubt, yet for the sake of completion, this court will delve into the FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 24 of 26 deposition of one of accused Balvinder u/s 315 Cr.P.C. DW-1 has deposed that on 8.03.2012 at about 9.30PM one Santro car of white colour stopped and inquired about the complainant. Upon the accused persons pointing out the complainant, the person sitting in the said car met the complainant and a scuffle broke between them and after beating the complainant, the said car left the spot. Complainant later asked the accused persons regarding the identity of the assailants but being dissatisfied with their answer, complainant falsely roped the accused persons in the present case. During his cross- examination, Ld. APP has given mere suggestions to the witness and nothing concrete could be elicited from DW-1. It is well settled that suggestions by themselves alone have no evidentiary value and can hardly be taken to be a proof of any fact. Even otherwise, the evidence led by the DW-1 does not per se inspire any confidence.
34. It is quite apparent from the record that the complainant has severely improved his version regarding the facts of the present case and his improved version has remained completely unproved on record. The facts alleged by the prosecution have been disputed by the complainant and even he himself has not been able to give a credible and trustworthy testimony in court. It is an admitted position that no weapon of offence was recovered in the present matter and despite the arrest of the accused in the court on the basis of their surrender; police has not taken any steps for recovery of the weapon of offence. The improved version of the complainant has only created more suspicion over the story alleged by the prosecution. It is not difficult to reach the conclusion that the testimony of PW-1/complainant is not reliable and trustworthy and deserves to be discarded in toto. Therefore, after going through the comprehensive record and entire testimony of PW-1, this court is of the opinion that the testimony of the complainant/PW-1 is unreliable and does not meet the criteria of trustworthiness expected from prime prosecution witness.
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 25 of 26
35. Therefore, in view of the above discussion this court is of the considered opinion that the prosecution has failed to prove the guilt of the accused persons beyond a reasonable doubt. From the facts of the present case, it cannot be said that the testimony of the prosecution witnesses in the present case is unimpeachable and matches the standard of proof required for conviction in such like cases.
Accordingly, in view of the findings given above, the accused persons are hereby acquitted.
36. Copy of this judgment be given free of cost to the accused persons against receiving.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.05.24
17:25:07 -0300
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 24.05.2022 MM-05/ SHD, Karkardooma Courts/Delhi
Present judgment consisted of 26 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date: 2022.05.24
17:25:15 -0300
(Bharat Aggarwal)
MM-05/ SHD, Karkardooma
Courts/Delhi/24.05.2022
FIR no. 95/2012 PS Jagatpuri "State vs. Balvinder Singh @ Bunti & Ors" Page no. 26 of 26