Delhi District Court
State vs . Prem Raj on 1 October, 2018
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.46/10
PS Karol Bagh
State Vs. Prem Raj
U/s 324 IPC
CNR No. DLCT-02-000239/10
CIS No. 291101/16
JUDGMENT
(a) Sr. No. of the Case 291101/16
(b) Date of offence 17.04.2010
(c) Complainant Moti Lal S/o. Sh. Tej Singh R/o. House No.
2956/41, Beadon Pura, Karol Bagh, Delhi
(d) Accused Prem Raj S/o.Gyasa Ram, R/o. House No. 3789,
Gali No. 21, Regar Pura, Karol Bagh, Delhi.
(e) Offence 324 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 07.08.2010
(i) Date when judgment was 01.10.2018
reserved
(j) Date of judgment 01.10.2018
FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 1 of 17
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Karol Bagh against accused Prem Raj for the offence U/s 324 IPC.
2. It is the case of the prosecution that on 17.04.2010, at about 7:45 pm, at gali no. 21, near Park and in Barber shop, Karol Bagh, accused voluntarily caused simple hurt on the person of complainant by means of Ustra and thereby committed offence punishable under Section 324 IPC.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Prem Raj in compliance of Section 207 Cr.P.C. Thereafter, charge under Section 324 IPC was framed against the accused by the Ld. Predecessor of this court vide order dated 20.04.2011 to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 7 witnesses.
6. PW-1 is Sh. Moti Lal, who deposed that he do not remember the exact date, however, in the month of April, 2010, at about 7:30 pm, he reached at the shop of barber situated at Gali No. 21, Regar Pura, Delhi for shaving, that he was getting his shave made by a barber, that accused Prem Raj came in the shop of the barber and he was under the influence of liquor at that time and said to him 'Tu Bada Daada Bantaa Hai', that he asked him as to what he has done, that accused Prem Raj picked ustra from the shop of barber and hit with ustra on his stomach, that he shouted, accused Prem Raj ran away from the spot, that somebody had FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 2 of 17 informed to the police, that CAT Gypsy came and took him to the Lady Harding Hospital, that IO came to him in the hospital and recorded his statement Ex. PW-1/A, that he got treatment there, that after treatment, he was discharged from the hospital, that he gave his blood stained shirt and baniyan to the IO, that IO seized the same vide seizure memo Ex. PW-1/B after preparing the pullinda of the same and sealing with the seal of IO, that he also pointed out the place of incident to the IO. Thereafter, MHC(M) has produced case property i.e. pullinda duly sealed with the seal of DPS, the same is opened and one shirt and baniyan having blood stains are taken out and same shown to the witness, witness identified the same as Ex. P-1 and Ex. P-2. He further deposed that the above said incident had taken place on 17.04.2010, that the accused had caused the injuries in his stomach with the said ustra. He deposed that accused was arrested in his presence from his house on 18.04.2010 on his identification vide his arrest memo and personal search memo Ex. PW- 1/C and Ex. PW-1/D.
7. In the cross examination, PW-1 admitted that the similar type of shirt and baniyan may be available in the market. He deposed that he do not have any documentary proof regarding the purchase of the said shirt and baniyan. He denied that the said shirt and baniyan do not belong to him. He further deposed that the shop of the barber is situated inside the gali and many people were residing near the shop, that no neighbour came at the spot. He admitted that the blood had fallen at the spot, that the PCR van reached on the spot after about half an hour and took him to the hospital, that he reached in the hospital at about 9:00 pm, that PCR officials left the hospital after getting him admitted there. He admitted that he was not admitted in the hospital and they gave him first aid and also gave 22 stitches on his injury of stomach and discharged him after after about 2 hours. He further deposed that IO came to him in the hospital at about 9:30 pm, that IO remained in the hospital for about one hour, that no one was with him when IO recorded his statement, that IO did not enquire any person in his presence in the hospital, that IO did not record the statement of any witness in his presence, that he was discharged FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 3 of 17 from the hospital at about 10:30 pm. He admitted that Devender is the son of the accused, that Devender is running his artificial jewellery shop in the gali. He denied that he visited the shop of Devender for purchasing the ear tops and accused was also present there at that time and he asked the price of the ear tops which were high, on that accused said to him to purchase from elsewhere and on that he said to the accused 'tu choudhary lagta hai kya' and thereafter, some hot altercation took place there and he also threatened the accused to teach him lesson and due to the said enmity, he implicated the accused falsely in the present case, that accused did not visit the shop of the barber on 17.04.2010 or that accused did not hit the said ustra on his stomach or that accused did not cause any injury to him. He further deposed that his wife informed the police on 100 number. He admitted that IO did not enquire his wife nor recorded her statement. He denied that his wife did not inform the police telephonically or that he has falsely implicated the accused in the present case and he is deposing falsely.
8. PW-2 is ASI Raj Kumar, who proved registration of present FIR Ex. PW-
2/A, endorsement on rukka Ex. PW-2/B and Certificate under Section 65- B of Evidence Act Ex. PW-2/C.
9. In the cross examination, he deposed that he do not remember the time when constable came to the PS, that it took about half an hour in recording the FIR. He denied that constable did not come to get the said FIR recorded or that he is deposing falsely.
10. PW-3 is HC Badan Singh, who deposed that on 18.04.2010, he was posted as MHC(M) at PS Karol Bagh, Delhi, that IO/ASI Desh Pal deposited the case property i.e. a pullinda duly sealed with the seal of DPS within the malkhana, that he made entry of the same at serial no. 2708 in register no. 19, that the copy of the same is Ex. PW-3/A (OSR), that case property remained intact as long as it remained under his custody.
11. In the cross examination PW-3 deposed that his statement was not FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 4 of 17 recorded by the IO under Section 161 Cr.P.C. He admitted that the time of deposition of the case property is not mentioned in Ex. PW-3/A, that he entered the said case property as per seizure memo. He denied that the said pullinda was not deposited with him in the malkhana, that he has made false entry in register no. 19 or that he is deposing falsely.
12. PW-4 is Shankar Manna, who deposed that he do not remember the exact date, month and year, however about 2-2/12 years earlier, his barber shop situated at gali no. 21, Regar Pura was closed as he had gone to see his sister at Aligarh after closing his shop at about 5:00 pm, that on the very next day, when he came back to his shop, police came to him and took him to police station and asked his name and address, that he was allowed to leave the PS but nothing was read over to him by the police, that he do not know anything about the present case.
13. PW-4 was cross examined by Ld. APP for the State as he was resiling from his earlier statement given to the police. During cross examination he admitted that IO had enquired him on 18.04.2010 about the present case, that on the date of incident, he was running his barber shop at 3813/21, Regar Pura, Karol Bagh, that he used to open his shop at about 6:00 am and close the shop at about 10:00 pm. He denied that on 17.04.2010 at about 7:40 pm, when he was making the shave of Moti Lal at his shop after about 5 minutes, accused Prem Raj came to his shop and started quarreling with Moti Lal and thereafter, accused Prem Raj lifted ustra from his shop and gave the blow of ustara at the stomach of Moti Lal, who shouted and somebody informed the police and ambulance came at his shop and took injured Moti Lal to some hospital as the accused caused injuries to him by ustara and he had stated the same to the police, that on that day at the time of incident, his shop was opened and he was very much present there or that he had not gone to Aligarh on the day of incidence or that he is deposing falsely being won over by the accused. He further deposed that on the day of incident, he had gone to Aligarh by Purva Express and he had paid Rs. 130/- for railway ticket from New Delhi to Aligarh. He deposed that on the day of incident, he FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 5 of 17 had closed his shop at about 4:30 pm, that he reached at the railway station at about 4:45 pm by three wheeler and he paid Rs. 50/- to the driver of three wheeler. He admitted that there was a long queue at the ticket window at New Delhi Railway Station when he reached there. He voluntarily deposed that he got the ticket from 32 no., Beadon Pura. He denied that he did not got to Aligarh by Purva Express on the day of incident or that he is deposing falsely being won over by the accused or that on the day of incident, he was present at his shop at the time of incident and he has seen the entire incident with his own eyes as the accused caused the injuries on the stomach of complainant Moti Lal with ustara lifted from his shop.
14. PW-5 is Sh. Laxman Dass, who deposed that he has been working the above said hospital since 1997, that he has seen Dr. Ravi and Dr. Ashish Khare writing and signing during ordinary discharge of duties, that the doctors have left the service of the hospital and their present whereabouts are not known, that he can identify the handwriting and signatures of both doctors, that he has seen the MLC of injured Moti Lal already on record which in the handwriting of Dr. Ravi, that in the above said MLC is Ex. PW-5/A, that the nature of injuries has been opined as simple caused by some sharp weapon, that the details medical examination report of Dr. Ashish Khare is Ex. PW-5/C on the back of the above said MLC bearing the signatures of Dr. Ashish Khare at point A, that he has also brought the record of the above said MLC (OSR).
15. In the cross examination PW-5 deposed that injured Moti Lal did not appear in his presence. He admitted that the above said MLC was not prepared in his presence, that there is an establishment branch in the above said hospital, that at the time of joining every doctor furnish his address. He deposed that he cannot say whether the complete address of above said doctors is still available in establishment branch, that the record of doctors is maintained in the office of superintendent administration. He denied that he is not conversant with the signatures of above said doctors or that he is deposing falsely.
FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 6 of 17
16. PW-6 is HC Ram Avtar, who deposed that on 17.04.2010, he was posted at PS Karol Bagh, that at bout 7:45 pm DD No. 35-A regarding quarrel was assigned to ASI Deshpal, that he along with IO ASI Deshpal reached at the spot i.e. in front of Barber Shop, Gali No. 21, Raigar Pura, Karol Bagh, that they came to know that the injured has already been taken to the hospital by CAT ambulance, that they both left for Lady Harding Hospital, that IO collected MLC of injured Moti Lal in the hospital and recorded his statement Ex. PW-1/A, that IO made endorsement on the statement of complainant and thereafter he took the tehrir to PS Karol Bagh and got the FIR registered as per the directions of IO, that after the registration of the FIR, he took the rukka as well as copy of FIR Ex. PW- 2/A to the spot as per the directions of the IO and handed over the same to the IO, that IO prepared site plan Ex. PW-6/A a the spot at the instance of complainant, that complainant Moti Lal brought his shirt and banyan having blood stains from his house and produced the same to the IO, that IO prepared the pullanda of the same by wrapping the same in a piece of white cloth and sealed the same with the seal of DPS, that seal was handed over to him, that IO seized the pullanda of case property vide seizure memo Ex. PW-1/B, that IO arrested accused Prem Raj from his house no. 3789/21, Raiger Pura, Karol Bagh, Delhi, on the identification of complainant Moti Lal vide his arrest memo and release the accused on police bail, that IO recorded his statement.
17. In the cross examination, PW-6 deposed that they left PS at about 7:45 pm, that they went to spot on foot, that the distance between the spot and PS is about 200 meter, that they reached at the spot at about 8:00 pm. He admitted that the large crowd gathered there. He deposed that no public person agreed to join the investigation and no written notice was served upon the such public persons, that they remained at the spot for about 10 minutes, that shops were situated at the spot but those were closed, that they left the hospital with rukka at about 9:30 pm, that he came back at about 10:15 pm to spot, that statement of complainant was recorded at hospital in his presence, that they remained at the spot for FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 7 of 17 half an hour or one hour, that no one was present at the spot, that he had not seen any blood stain at the spot. He denied that site plan was prepared at PS, that on next day, he remained at the spot for about two hours, that no blood stain cloth was handed over to IO by the complainant, that he is deposing falsely in this regard. He deposed that he handed over the seal to the IO after two days at PS and he do not remember the time, that accused was arrested on 18.04.2010. He admitted that accused was arrested from the house and it was a residential area and IO did not ask any public persons to join the investigation and no notice was served upon such persons. He denied that no quarrel was took place between the complainant and accused and accused has been falsely implicated in the present case with the connivance of complainant, that he is deposing falsely.
18. PW-7 is SI Desh Pal, who deposed that on 17.04.2010, he was posted as ASI at PS Karol Bagh, that on receiving DD No. 35-A, he along with Ct. RamAvtar reached at the spot i.e. gali no. 21, Regarpura and it came to his knowledge that one person had attacked on another person with Ustra and injured had been taken to Lady Harding Hospital, that they both went there and he obtained MLC of Motial Lal, that he recorded the statement of Moti Lal Ex. PW-1/A, that he prepared rukka Ex. PW-7/A and sent Ct. Ram Avtar for registration of the case and instructed him to reach at the spot after registration of the case, that he alone reached at the spot, that Ct. Ram Avtar came at the spot and handed over the original rukka and copy of FIR to him, that after sometime, Moti Lal reached at house of Prem Raj, that Prem Raj was found there, that he arrested the accused Prem Raj and conducted his personal search vide memos Ex. PW-1/C and Ex. PW-1/D, that they came back at the house of Moti Lal and seized shirt along with baniyan vide seizure memo Ex. PW-1/B, that he also prepared site plan at the instance of the complainant Ex. PW-6/A, that he recorded the statement of witnesses.
19. In the cross examination, PW-7 deposed that he left the PS at about 8:30 pm, that he went there on motorcycle, that he do not remember the FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 8 of 17 registration number of the motorcycle, that the distance between the spot and police station is about 1- ½ km, that they reached at the spot at about 8:40 pm, that many public persons were present there, that he has not recorded any statement of any public witness, that he has not given any notice to the public persons, that he remained at the spot for about 10 minutes, that they reached at the hospital at about 9:15 pm, that they remained at the hospital for about 45 minutes, that he had not recorded statement of any other person except complainant, that he returned back at the spot at about 10:30/10:45 pm, that there was no public person present at that time. He admitted that residential area was situated near the shop. He deposed that he had called many public persons to join the investigation from residential place but they did not join the investigation, that he had not given any notice to them, that they remained at the spot at about 10:00 am on 18.04.2010, that he did not send the seized clothes of the complainant to CFSL, that no blood was found at the spot. He denied that he did not visit the spot, that he did not record the statement of the complainant at hospital and he is deposing falsely. He further deposed that he do not remember the address of the accused, that he cannot tell the house number of the houses which were adjacent to the house of the accused, that he did not ask any neighbour and family members of the accused to join the investigation, that he handed over the copy of the arrest memo and personal search memo to the accused, that this fact has not been mentioned in the arrest memo and personal search memo. He denied that complainant did not accompany them to house of the accused and all the writing work was done while sitting at PS. He deposed that they remained at the house of the accused for about one hour, that Ct. Ram Avtar took rukka from the hospital at about 10:00 pm and returned back at the spot t about 11:30 pm. He denied that Ct. Ram Avtar did not take rukka from hospital, that he is deposing falsely.
20. Thereafter, PE was closed and matter was fixed for SA. Statement of accused under Section 313 Cr.PC were recorded vide order dated 11.07.2016 by putting entire incriminating evidence to the accused. Accused denied all the allegations against him and stated that he has FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 9 of 17 been falsely implicated in the present case. Accused chose to lead DE and matter was fixed for Defence Evidence accordingly.
DEFENCE EVIDENCE
21. Accused has examined only one witness namely Devender Kumar as Defence Witness in his defence.
22. DW-1 Sh. Devender Kumar, deposed that on 01.04.2010, he along with his father Prem Raj was present at his shop, that Moti Lal came to his house and asked him the price of ear tops, that he quoted the price of ear tops and thereafter he abused him and his father also, that he told his father that "tu chaudhary lagta hai kya" and thereafter, some altercation took between him and his father and he threatened them to teach lesson and due to the said enmity his father has been implicated in the above said case.
23. In the cross examination DW-1 deposed that they used to close their shop at about 8:00 pm. He admitted that there used to be one Barber Shop in gali no. 21. He deposed that he do not know that on 17.04.2010, at about 7:45 pm, his father went to the above said shop of Barber and injured Moti Lal was also present there and getting his beard shave and was sitting in brief (banyan). He admitted that on 17.04.2010, at about 7:45 pm, he was not present at the above said barber shop. He deposed that he do not know whether on that day, his father told Motil Lal "tu bada dada banta hai" on which Moti Lal asked him as to what he had done, on which his father told him that "I will tell you" and picked up the Ustra from the shop and attacked him and due to which he received injuries on his stomach and when Moti Lal raised hue and cry his father ran away from the spot. He voluntarily deposed that nothing of this sort ever happened and his father had not attacked Moti Lal by the Ustra. He admitted that his father used to have liquor. He denied that on 17.04.2010, his father had consumed liquor, that on 01.04.2010, he along with his father Prem Raj was present at his shop and Moti Lal came to his house and asked FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 10 of 17 him the price of ear tops and when he quoted him the price he abused him and his father and told his father "to Chaudhary lagta hai Kya" and thereafter, some altercation took place between him and his father and he threatened them to teach a lesson, that he is deposing falsely being son of accused.
24. Thereafter, Defence Evidence was closed and matter was fixed for final arguments.
25. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
26. Perusal of the record reveals that accused Prem Raj was charged with the offence under Section 324 IPC.
27. 324 IPC stipulates that:-
"Voluntarily causing hurt by dangerous weapons or means- whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as seapon of offence, is likely to cause death, or by means of fire or any heated substance, or by meas of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 11 of 17 punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
28. It is the case of the prosecution that on 17.04.2010, at about 7:45 pm, at gali no. 21, near Park and in Barber shop, Karol Bagh, accused voluntarily caused simple hurt on the person of complainant by means of Ustra and thereby committed offence punishable under Section 324 IPC.
29. Perual of the evidence reveals that as per the testimony of PW-1 Moti Lal (Victim/Complainant) incident in question happened at around 7:30 pm in a Barber Shop on 17.04.2010, however, PW-4 Shankar Manna (Barber) categorically deposed that he had gone to see his sister at Aligarh after closing is shop at about 4:30 pm. He categorically deposed in the cross examination by Ld. APP for the State that he has closed his shop at about 4:30 pm on the date of incident and reached the Railway Station at about 4:45 pm by three wheeler. He further deposed that he got the ticket from 32, Beadon Pura which gives an inference that the alleged place of incident i.e. shop of the barber was closed at the time of incident, therefore, question of incident taking place in the Barber Shop does not arise. It is also pertinent to note that PW-4 categorically denied that on 17.04.2010 at about 7:40 pm, accused Prem Raj gave ustra blow to the Moti Lal (Complainant) in his shop, thereby denying the case of prosecution in toto. It is also pertinent to note that admittedly there is no recovery of Ustra in the case in hand and therefore, weapon of offence has also not been recovered so as to substantiate the allegations in question.
30. Further, PW-1 deposed about the 22 stitches being given in his stomach, however, MLC does not show any such stitches being given to the victim. PW-1 further deposed that his wife informed the police at 100 number and admitted that IO did not enquire from his wife and also did not recorded her statement. Therefore, admittedly there is no investigation regarding the call of 100 number being made by the wife of the victim as FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 12 of 17 she was neither examined nor cited as witness in the case in hand for the reasons best known to the investigating agency. It is also pertinent to note that complainant knew the accused but he has not disclosed the name of the accused to the doctor as well as he has not disclosed the use of weapon as the same has not been mentioned anywhere in the MLC.
31. PW-1 admitted that blood has fallen at the spot, thereby contradicting the testimony of PW-6 and PW-7 as they deposed that no blood was found at the spot. It is a material contradiction regarding the presence of blood stains at the spot. It is also pertinent to note that victim himself produced the blood stained clothes to the police officials but they have not send the same to the FSL as admitted by PW-7 in his cross examination wherein he categorically deposed that he did not send the seized clothes of the complainant to CFSL.
32. PWs categorically deposed that place of incident is public place, however, they have not joined any public witness to the investigation and have not served any notice upon the public persons who refused to joined the investigation for the reasons best known to the investigating agency.
33. The non-joining of other public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for non joining of other public witnesses and no efforts seem to have been made for joining other independent witnesses.
34. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 13 of 17 rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 14 of 17 residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 15 of 17 authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
35. It is also pertinent note that admittedly accused was apprehended/arrested from his house and not from the place of incident, therefore, possibility of false implication of accused cannot be ruled out.
36. Furthermore, all the PWs have deposed that site plan was prepared at the instance of complainant, however, persual of the site plan reveals that it does not bears the signature of complainant, thereby raising doubt about the genuineness of the site plan.
37. In view of the aforesaid facts and circumstances, appreciation of evidence, main/key witness turned hostile, absence of weapon of offence, material contradiction in the testimony of injured/complainant, and non joining of public witnesses, prosecution has failed to establish its case against the accused Prem Raj beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Prem Raj stands acquitted of the offences under Section 324 IPC accordingly.
38. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC.
FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 16 of 17 Same is accepted for a period of six months from today.
39. File be consigned to the record room after due compliance.
Pronounced and Signed SHILPI Digitally signed by
SHILPI JAIN
in the Open Court on 01.10.2018 JAIN Date: 2018.10.01
17:36:35 +0530
(Shilpi Jain)
MM-01(Central)/THC/Delhi
01.10.2018
FIR No.46/10 PS Karol Bagh State Vs. Prem Raj Page No. 17 of 17