Delhi District Court
State vs . Gagan Abbot & Ors on 19 August, 2023
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI
FIR No. 114/09
PS Jagatpuri
u/s 186/353/332/34 IPC
State vs. Gagan Abbot & Ors
JUDGMENT
A. SL. NO. OF THE CASE : 79388/16
B. DATE OF INSTITUTION : 24.06.2010
C. DATE OF OFFENCE : 28.12.2009
D. NAME OF THE COMPLAINANT: Ct. Shiv Kumar, no. 1399/E
E. NAME OF THE ACCUSED : 1) Gagan Abbot @ Gulshan s/o
Madan Mohan.
2) Jitender Kumar @ Channu
s/o Madan Mohan
3). Puneet Anand @ Golu s/o
S.C. Anand.
4) Hemant Abbot s/o Madan
Mohan
F. OFFENCE COMPLAINED OF : u/s 186, 353, 332 r/w 34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 19.08.2023
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 1 of 21
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused persons are produced before the court to stand trial for the offences punishable u/s 186, 353, 332 r/w 34 of the Indian Penal Code, 1860.
2. In brief, facts of the case as per the prosecution are that on 28.12.2009 upon receipt of DD No. 3A and 4A, IO ASI Brij Bhushan along with Ct. Devdatt reached the spot i.e. gali no. 5, Hazara Park, Chander Nagar where Ct. Shiv Kumar and Ct. Mange Ram met them. Both the Constables produced accused Gagan and Jitender and blood was oozing out from the ear of Ct. Shiv Kumar and he was sent to LBS Hospital through Ct. Mange Ram. Ct. Shiv kumar gave his statement to the io whereby he inter alia alleged that on 28.12.2009 he and Ct. Mange Ram were doing patrolling duty on Govt. motorcycle bearing no. DL 15S-1310 and at about 01:45 am, they reached near C-Block Hazara Park, Chander Nagar. They saw one person standing on the road and upon query from him regarding his presence at late night hours, he got furious and started abusing the policemen. He further alleged that thereafter 3 more boys came and started fighting with the policemen. It is alleged that 2 boys caught Ct. Mange Ram and one of the caught complainant Ct. Shiv Kumar and one of them hit Ct. Shiv Kumar with a stick/danda. It is alleged that blood started oozing out from the ear of the Ct. Shiv Kumar and the name of the boy who hit the danda was revealed as Hemant whereas the one who caught hold of Ct. Shiv Kumar came to be known as Jitender Kumar. It is further alleged that accused Gagan and Golu caught Ct. Mange Ram and accused Gagan and Jitender were apprehended at the spot and Ct. Shiv Kumar called police on 100 no. Upon the statement of Ct. Shiv Kumar, case was registered and site plan was prepared. IO arrested accused Jitender Kumar and accused Gagan and produced them before the court. Thereafter, the investigation was FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 2 of 21 handed over to SI Rajesh and during investigation accused Hemant and Punit were also arrested and released on bail. Later the investigation was handed over the ASI Brij Bhushan and final opinion on the MLC of victim/PW-1 was obtained and the accused persons were charge-sheeted for the offences punishable u/s 186, 353 and 332 r/w section 34 IPC.
3. Accused persons appeared before the court and copy of charge sheet was supplied to him as per section 207 Cr.P.C., on 21.01.2012. Accused persons were charged for the offences punishable u/s 186, 353, 332 r/w 34 IPC by the Ld. Predecessor of this court on 02.08.2017 to which they pleaded not guilty and claimed trial.
PROSECUTION'S EVIDENCE:
4. In order to substantiate its case, the prosecution has examined following witnesses:
4.1 PW-1 HC Shiv Kumar deposed that on 28.12.2009, he was posted as Constable at PS Jagatpuri and he alongwith Ct. Mange Ram were patrolling on Government motorcycle bearing no. DL-1SS-1310. He further deposed that at about 01:45 AM when they reached C-Block, Hazara Park, Gali no. 5, Chander Nagar, they saw one person appearing to be under influence of alcohol and they asked him to go to his house as it was late night. He further deposed that he started abusing both the police officers in filthy language and three persons also came there and started giving beatings to them. PW-1 further deposed that one person caught hold of him and the accused who was present there picked up a stick / danda and hit on the FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 3 of 21 left ear of PW-1. He further deposed that two other persons caught hold of PW-2 Mange Ram and they also gave beatings to him. Blood started oozing from the ears of PW-1 and the accused persons tried to flee from the spot however two of them namely Jitender and Gagan were apprehended by the police officers. He deposed that accused Hemant and Golu had absconded from the spot and accused Hemant hit his ear with a danda.
PW-1 further deposed that he made a call on 100 number and later both the accused were handed over to the IO and he was taken to LBS hospital with Ct. Mange Ram. He pointed the place of incident to the IO and the IO prepared site plan. He pointed towards accused Gagan during his testimony in the court and stated that he is accused Hemant who had hit him with the danda. Upon such wrong pointing out, PW-1 was cross-examined by Ld. APP for the State and stated that he wrongly identified Gagan as Hemant due to lapse of time.
PW-1 was cross-examined by Ld. Defence Counsel whereby he inter alia deposed that he does not remember the departure entry vide which they were patrolling. He further deposed that he did not lodge any departure entry in the PS regarding their patrolling duty. He further admitted that he did not mention the make and colour of the motorcycle used for patrolling and they left the PS at about 01.00 AM. He further deposed that he does not remember whether uniform of Ct. Mange Ram was torn due to the incident or not and his uniform did not get tear. He further deposed that he does not remember whether accused who were apprehended on that day were in FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 4 of 21 drunken condition or not.
4.2 PW-2 ASI Mange Ram deposed that on 28.12.2009, he alongwith Ct. Shiv Kumar were patrolling on Govt. motorcycle and at about 01:45 AM they reached C-block, Hazara Park, Gali no. 5, West Chander Nagar, where they found one boy in drunken state and they asked him to go to his house. He further deposed that he started abusing the policemen and three boys also reached there and all of them attacked PW-1 and PW-2. He further deposed that accused Jitender caught hold of Ct. Shiv Kumar and accused Hemant gave a danda / stick below on the left ear of PW-1. He deposed that accused Gagan and Golu caught hold of him and PW-1 made a call on 100 number and accused Hemant and Golu ran away from the spot while accused Jitender and Gagan were apprehended on the spot. PW-2 was sent alongwith PW-1 to LBS Hospital by the IO for medical examination and IO recorded the statement of PW-1 and gave the rukka to PW-2 for registration of FIR. He further deposed that they came to know about the name of the accused persons at the spot and on 07.01.2020, accused Hemant and Golu were apprehended from their house and he identified both the accused persons.
PW-2 could not identify the accused persons with their names due to lapse of time.
PW-2 was cross-examined at length by Ld. Defence Counsel whereby inter alia he stated that DD writer had noted down their departure entry in the rojnamcha and PW-2 had signed the same. PW-2 further deposed that there was no fog FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 5 of 21 at the time of the incident. PW-2 admitted that there was no damage marks on the helmet as they had removed their helmets during the incident. PW-2 further deposed that he does not remember whether the danda / stick was seized by the IO or not and accused snatched the danda carried by PW-2 and attacked PW-1 on his left ear. He further admitted that he did not sustain any injury and his MLC was not prepared. He further admitted that he had stated in Ex.PW-2/D1 (statement given to inquiry officer PS Anand Vihar) that accused Gagan and Jitender caught hold of him and accused Hemant and Golu caught hold of PW-1 and accused Hemant had given a danda below on the left ear of PW-1.
4.3 PW-3 ASI Devdutt deposed that on 28.12.2009 at about 01:00 AM he received DD No. 3A and informed about the same to ASI Brij Bhushan. He went along with the ASI Brij Bhusan to the spot and Ct. Shiv Kumar was found to be bleeding from his ear. He was informed by Ct. Shiv Kumar that two persons ran away from the spot. He further deposed that accused Gagan and Jitender were arrested by the IO and on 07.01.2020 other two accused were arrested by the IO SI Rajesh in his presence.
PW-3 pointed out to accused Gagan and Hemant stating that they were arrested earlier and he pointed towards accused Jitender and Punit and stated that they were arrested later. He was also cross examined by Ld. APP for the State and Ld. Counsel for all accused persons whereby he inter alia stated that they remained at the spot till about 06:30 AM. He FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 6 of 21 further admitted that several police officers reached the spot after the call DD No. 3A was made. He further deposed that he is not the eye witness to the incident.
4.4 PW-4 Dr. Chetan Chauhan deposed that on 28.12.2009 he was posted as Junior Resident at Casualty Department in LBS hospital and the Ex. PW-4/A of victim Ct. Shiv Kumar was prepared by him. He was cross-examined by Ld. Defence Counsel regarding the cutting/overwriting over the name of the patient to which PW-4 responded that the name might have been written inadvertently.
4.5 PW-5 Dr. Pulkit Gupta appeared for proving the signature of Dr. Arshad in the MLC Ex. PW-4/A. PW-5 compared the signature of Dr. Arshad in the MLC with attendance register.
4.6 PW-6 Insp. Rajesh Dangwal deposed that in January 2010, the investigation was marked to him and on 07.01.2010, accused Hemant and Punit came to the police station and on identification by Ct. Mange Ram and Ct. Dev Dutt the accused persons were arrested vide memo Ex. PW-2/E and Ex. PW-2/F. PW-6 pointed towards the accused Hemant as Punit and towards accused Punit as accused Hemant. He could not correctly identify both the accused. He was cross-examined by Ld. APP for the State whereby he stated that he could not identify correctly due to long lapse of time. He was cross examined by Ld. Defence Counsel whereby he admitted that he FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 7 of 21 never visited the spot of the incident and that he was the IO only for 15 days in the present case.
4.7 PW-7 Retd. ASI Brijbhusan deposed that about 02:02 AM on 28.12.2009, DD No. 3A and at 02:03 AM DD No. 4A was received upon which he along with Ct. Dev Dutt reached the spot. He deposed that they met Ct. Shiv Kumar and Ct. Mange Ram who produced accused Jitender and Gagan and Ct. Shiv Kumar was bleeding from his left ear and he was sent along with Ct. Mange Ram to the hospital for medical examination. After the medical examination, he prepared rukka Ex. PW-7/A and handed over the same to Ct. Mange Ram for registration of FIR. He prepared the site plan Ex. PW-7/B and arrested accused Gagan and Jitender. He further deposed that he obtained the sanction u/s 195 Cr. PC from the ACP concerned.
He was cross examined by Ld. Defence Counsel whereby he stated that DD no. 3A was made on the call of accused Hemant and no inquiry was made regarding DD No. 3A. He admitted that copy of rojznamcha has not been placed on record with the charge-sheet. He further deposed that he reached at the spot at about 02:10 AM and he admitted that there are several residential premises adjacent to the spot and he did not serve any notice to any neighbour to join the investigation. He further deposed that he remained at the spot for about 5 hours. He further stated that offences were bailable on the date of the incident and no danda was recovered by him and no investigation was carried out in that regard. He further FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 8 of 21 admitted that nothing has been mentioned in the charge-sheet regarding the sanction obtained from the ACP concerned.
DEFENCE'S EVIDENCE:
5. In order to substantiate its case, the Defence has examined following witness:
5.1 DW-1 Gagan Abbot @ Gulshan deposed that he has filed a criminal case i.e. Gulshan vs. Mange Ram & ors. CT case no. 8623/2016, PS Anand Vihar and FIR no. 216/10, PS Anand Vihar against Ct. Mange Ram and Shiv Kumar which is pending before the concerned Court. Certified copy of the same was placed on record as Ex. DW1/A. DW-2 Assistant Ahlmad from concerned Court also verified the certified copy of DW1/A placed on record by DW-1.
6. After completion of prosecution evidence, statements of accused persons u/s 313 Cr.P.C. were recorded on 11.07.2023, wherein accused persons stated that they have been falsely implicated. Accused Hemant stated that he heard noises in the street and saw policemen arguing with several persons. Accused Jitender stated that PW-1 & PW-2 gave beatings to them and 15-20 policemen entered his house and abused them.
Accused Gagan stated that a dispute was going on between four persons and when he tried to intervene, PW-1 and PW-2 abused him. Accused Puneet stated that he was not even present at the spot and he went to police station to inquire about accused Gagan and Jitender and he was falsely implicated by the police.
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 9 of 21 ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
7. It was argued on the behalf of the Defence that the prosecution has failed to make out any case against the accused and they deserve to be acquitted. It was submitted by Ld. Counsel for accused that the accused persons 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.
8. It was further argued on behalf of the accused persons that there are several contradictions in the testimonies of the prosecution witnesses and PW-1 and PW-2 were abusing several persons in front of the house of accused Hemant and when they objected, they showed a pistol to accused Hemant upon which he called on 100 number vide DD no. 3A Ex.P2. It is further stated that PW-1 and PW-2 alongwith other police officials from the PS Jagatpuri gave beatings to accused Jitender and Gagan and took them forcibly to police station and demanded Rs. 50,000/- and later upon refusal, falsely implicated them in the present case. Ld. Defence counsel further argued that the prosecution has failed to prove the sanction u/s 195 Cr.P.C and no date, diary number or other details have been mentioned in the sanction letter so issued by the ACP concerned. He further argued that the prosecution has failed to prove the chhitta/ duty roster on record and PW-7 also admitted that such chhitta / duty roster is maintained in the PS. He further argued that even the arrival and departure entry of the police officials have not been proved on record by the prosecution.
9. Ld. Defence Counsel further argued that there is no recovery of any stick or danda by the police and PW-2 stated that he does not remember FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 10 of 21 whether the police seized the danda or not. He further argued that in the disclosure statements of the accused persons, it has been recorded that the stick / danda was taken from the gali / lane and then beatings were given to the police officials whereas PW-2 has deposed that the beatings were given by the danda carried by him. He further argued that both the witnesses failed to identify the accused persons in their testimonies and they could not identify each accused individually. He further argued that there is cutting / overwriting in the MLC of PW-1 / injured and PW-2 has deposed that he was sent alongwith PW-1 to LBS Hospital for their medical examination whereas PW-2 also admitted that he did not sustain any injury during the alleged incident. It was further argued that there is no public witness despite the presence of several public persons and despite the area being thickly populated. He relied upon testimony of PW-3 who admitted that when they reached the spot, there were several public persons. It was further argued that no action was taken by the police on DD no.3A lodged by accused Hemant despite the same disclosing cognizable offences.
10. Ld. Defence Counsel further argued that it is the case of the prosecution that accused were under the influence of alcohol, however in their MLC it is stated that there was no smell of alcohol. Lastly, it was argued on behalf of the accused persons that there are several contradictions in the case of the prosecution and the prosecution has desperately failed to prove the case against the accused persons beyond reasonable doubts.
11. On the other hand, it was argued by the Ld. APP for the State that prosecution has duly proved its case against all the accused persons. He FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 11 of 21 argued that all accused persons must be convicted for the offences punishable u/s 186, 332 & 353 r/w section 34 IPC. Ld. APP for the State, further argued that MLC of PW-1 is on record which supports the case of the prosecution and PW-1 Ct. Shiv Kumar and PW-2 Ct. Mange Ram have completely supported the case of the prosecution which stands duly proved.
FINDINGS WITH REASONS:
12. 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 that on 28.12.2009 at about 01:45 AM in Gali No. 5, Hajara Park, Chander Nagar, Delhi, accused persons obstructed complainant Ct. Shiv Kumar and Ct. Mange Ram, both public servants while they were discharging their public functions and accused persons assaulted and used criminal force and caused hurt to the complainant Ct. Shiv Kumar and Ct. Mange Ram due to which Ct. Shiv Kumar sustained injuries below his ear which are reflected in complainant's MLC Ex.PW4/A.
13. Considering the allegations of the prosecution and the material available on record, all accused persons were charged for offences punishable under Section 186, 332, 353 read with section 34 by the Ld. Predecessor of this Court vide order dated 02.08.2017. Accordingly, the accused persons have faced trial for offence of obstructing public servants in discharge of their public functions and voluntarily causing injuries to public servants while they were discharging their duties.
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 12 of 21
14. 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 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 persons to acquittal.
15. The accused have been charged for the offence u/s 186 IPC. Section 186 IPC is extracted below for better understanding:-
186. Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
From the bare perusal of the aforesaid provision it becomes clear that to invite culpability u/s 186 IPC it must be proved that the public servant concerned was discharging his public functions while the alleged obstruction was made by the accused persons. Section 186 IPC is to be read alongwith section 195 Cr.P.C. which inter alia provides that cognizance of the offence u/s 186 IPC shall be only taken upon a complaint in writing of the public servant concerned or some other public servant to whom the victim is administratively subordinate.
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 13 of 21
16. As per the case of the prosecution, charge under section 332 IPC and section 353 IPC has also been framed against the accused persons as allegedly the accused persons caused hurt to the complainant/PW-1 while he was patrolling in the area. The offence of voluntarily causing hurt to deter public servant from discharging his duty is defined under section 332 IPC which provides as follows.
332. Voluntarily causing hurt to deter public servant from his duty.--Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Further section 353 IPC under which provides for assault or criminal force to deter public servant from discharge of his duty, is reproduced herein below:
353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 14 of 21 Therefore, from perusal of section 332 IPC and section 353 IPC it becomes apparent that the victim/public servant shall be discharging his duty when the accused voluntarily caused hurt to him in order to deter him from discharging his duty.
17. The prime prosecution witness is PW-1/injured in this case who has inter alia deposed that on 28.12.2009 while he was patrolling in the area alongwith PW-2 at about 01:45AM they reached at C-Block, Hazara Park and they found accused Hemant who started abusing them. He further deposed that thereafter other accused persons also came to the spot and accused Jitender held PW-1 while accused Hemant gave him a blow with a stick/danda due to which blood started oozing out from his left ear. He further deposed that they both apprehended accused Jitender and Gagan from the spot, whereas accused Golu/Puneet and Hemant managed to flee from the spot.
PW-2 Ct. Mange Ram also deposed on similar lines as PW-1. He inter alia deposed that PW-1 made a call at 100 No. and he was sent by the IO alongwith PW-1 to LBS Hospital for their medical examination. He further deposed that accused Hemant and Golu/Puneet were arrested later on 07.01.2010 from their house upon his identification by IO/SI Rajesh.
18. PW-3 deposed that he received DD No.3A and he alongwith ASI Brij Bhushan went to the spot where they met PW-1 and PW-2 who had apprehended accused Jitender and Gagan. PW-3 further deposed that PW-1 was bleeding from his ear. PW-4 deposed regarding preparation of MLC of PW-1/victim Ct. Shiv and upon his cross-examination he stated that the name FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 15 of 21 of the victim was inadvertently mentioned as Ct. Sunil in place of Ct. Shiv. PW-5 appeared on behalf of Dr. Arshad and identified his signatures. PW-6 deposed that he was the IO in the case for only 15 days and he arrested accused Hemant and Puneet/Golu on 07.01.2010. PW-7/IO deposed regarding the receipt of DD No.3A at 02:02AM and DD No. 4A at 02:03AM and he deposed regarding reaching the spot alongwith PW-3 and carrying out the investigation and preparation of rukka Ex.PW7/A, site plan Ex.PW7/B. He further deposed regarding arrest of accused Gagan and Jitender vide arrest memos Ex.PW2/A and Ex.PW2/B, respectively. Defence also led evidence of accused Gagan to place on record the complaint filed against the police officers by the accused persons pertaining to PS Anand Vihar.
19. Briefly stated, it is the case of the prosecution that the accused persons with the common intention voluntarily obstructed PW-1 and PW-2 while they were patrolling in the area at Hazara Park and thereafter accused Hemant gave a blow with a danda/stick to PW-1 due to which he received injuries on his ear. It is further the case of the prosecution that accused Jitender held PW- 1 while accused Gagan and Golu held PW-2 and thereafter they all gave beatings to both the victims PW-1 and PW-2. Accused Jitender and Gagan are stated to be arrested from the spot while it is alleged that accused Hemant and Golu/Puneet managed to flee from the spot and they were later arrested on 07.01.2010.
20. It is pertinent to note here that PW-1/Victim during his evidence in the court on 12.01.2018 failed to correctly identify the main accused namely Hemant, who had allegedly hit him with a danda/stick. PW-1 pointed towards accused Gagan and stated that he is the person who gave him blow with a danda. However, later Ld. APP for the State pointed towards accused Hemant FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 16 of 21 upon which PW-1 stated that he is the person who gave the blow and due to lapse of time, PW-1 could not identify him. It is not out of place to mention that accused Hemant is the main accused who hit the victim/PW-1 with danda/stick on the date of the alleged incident. Such non-identification by the prime prosecution witness i.e. PW-1/complainant of the main accused raises a shadow of doubt over his version especially when it has been the case of the prosecution that accused Hemant gave the blow to PW-1. PW-1 further admitted during his cross-examination that he did not lodge any departure entry in the police station when he left for patrolling on the date of the incident.
21. PW-2 during his testimony in the court on 08.08.2018 stated that he cannot identify each accused person individually and during his examination- in-chief he failed to point out as to which accused persons held him on the date of the incident and which accused gave the blow to PW-1. It is essential to mention that PW-2 in his cross-examination stated that accused snatched the danda/stick from him during the incident and gave beatings to them with the same danda/stick due to which blood started oozing out from the ear of PW-1. It is surprising to note that this is for the first occasion that the prosecution has mentioned that the danda/stick i.e. the weapon of offence which is admittedly never recovered or seized during the investigation was the same danda/stick carried by the police officials themselves.
The disclosure statement of the accused persons as recorded by the police officials records that the accused Hemant picked up a danda/stick lying at the spot and gave blows to PW-1 using the same. Such contradictions in the version of the prosecution is difficult to reconcile and it casts aspersions over the version of the prosecution and PW-2.
FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 17 of 21
22. Further PW-2 during his cross-examination was shown his statement Ex.PW2/D1 recorded by inquiry officer of PS Anand Vihar regarding the incident whereby he had alleged that accused Gagan and Jitender had caught hold of him/PW-2 and accused Hemant and Golu caught hold of PW-1. PW-2 was confronted with the aforesaid statement during his cross-examination on 08.08.2018 and he deposed that he inadvertently mentioned wrongly regarding the role of accused persons in his statement Ex.PW2/D1 whereas the role alleged by him in court was stated to be correct.
Such statement Ex.PW2/D1 whereby again role of each accused persons is not in consonance with the story put forth by the prosecution raises another shadow of doubt over the truthfulness about the allegations of PW-2 in the present case. PW-2 also deposed that DD writer had noted down their departure entries of the date of the incident in the rojnamcha register and PW- 2 had also signed the same however, the prosecution has failed to ever produce the said register during the trial.
23. PW-3 i.e. the Constable, assisting the IO after the receipt of the DD entry 3A and 4A also failed to identify accused persons properly during the trial. He pointed towards the accused Gagan and Hemant and alleged that they were arrested from the spot whereas accused Gagan and Jitender were arrested from the spot. PW-3 further pointed out to the accused Jitender and Puneet by stating that they were arrested later on 07.01.2020 whereas it was accused Hemant and Golu/Puneet who were arrested later. PW-3 has admitted that there were several public persons present when the incident took place, however, prosecution has failed to produce even a single independent public witness in its favour. Even otherwise, it is the admitted case of the prosecution that there were several public persons available at the spot, however, the police/investigating agency did not even serve any notice to an independent FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 18 of 21 witness to join the investigation. Similarly, PW-6 pointed towards accused Hemant and identified him to be accused Puneet and he pointed towards accused Puneet alleging him to be Hemant.
24. PW-7/IO admitted that the Chhitta has not been placed on record by the prosecution and that no inquiry was made from regarding DD No.3A from the caller. PW-7 further admitted during this cross-examination that no danda was recovered during the investigation from the accused persons and he has not mentioned anything in the charge-sheet regarding the sanction obtained from the ACP concerned. PW-7/IO further admitted that no traces of alcohol were found on the MLC of the accused persons.
The testimony of PW-7 has further raised serious doubts over the case of the prosecution as the entire case of the police officials/victims is that the accused persons were found to be drunk on the spot and IO has rather admitted that no trace of alcohol was found in their medical examination. DD. No. 3A i.e. Ex.P2 was admittedly registered prior in time of DD No.4A and perusal of DD. No.3A Ex.P2 reveals that it has been stated therein that certain police officials are showing pistol and also beating the caller/public persons upon which PW-7/ASI Brij Bhushan and PW-3/Ct. Devdutt left for the spot. PW-7 has admitted that no inquiry was done from the caller regarding DD. No.3A whereby it was recorded that police official was showing pistol and beating up public persons. No plausible explanation has been offered by the prosecution regarding the same as to why no action was taken upon DD No. 3A.
25. Prosecution has also failed to explain in the present case as to why no Chhitta/duty roster has been placed on record to prove the presence of PW-1 and PW-2 at the spot of the alleged incident. Further, the prosecution has also FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 19 of 21 not filed the duty roster or relevant departure entries regarding the patrolling duty of PW-1 and PW-2 at the spot. Accordingly, it is not difficult to arrive at the conclusion that the prosecution has failed to prove that PW-1 and PW-2 were actually discharging their official duties when the alleged incident took place.
26. The prosecution has also failed to offer any explanation as to why nothing regarding the sanction as required u/s 195 Cr.P.C. has been mentioned in the charge-sheet. It is pertinent to mention here itself that no sanction/complaint as envisaged u/s 195 Cr.P.C. has been tendered in evidence or proved on record by the prosecution in the present case. It is well settled that such sanction is mandatory requirement for prosecution of an offence u/s 186 IPC whereas the prosecution has failed to prove any such sanction on record in the present case. Accordingly, the accused persons cannot be convicted for the offence punishable u/s 186 IPC.
27. Therefore, from the comprehensive perusal and consideration of the evidence led by the prosecution on record, it is evident that prosecution has failed to prove the particular role of each and every accused person. The identity of the accused for each incriminating act has not been duly proved by the prosecution which is a necessary requirement for conviction of the accused persons. The prosecution has failed to offer any explanation regarding absence of the rojnamcha register or duty roster or departure entries on record. No plausible explanation regarding absence of action pertaining to DD No.3A has come on record which only supports the contentions of Defence that accused persons have been falsely implicated by police officials in the present case. No reasons have been given by the prosecution as to why the alleged weapon of offence was not seized during FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 20 of 21 investigation despite the same belonging to the police itself. Testimony of PW- 2 is full of contradictions and it has failed to match the standard of proof expected from the main prosecution witness and PW-2 has changed his version on several occasions which makes his version doubtful and unworthy of credit.
28. It is well settled that prosecution is expected to place on record evidence of sterling quality which proves its case beyond reasonable doubt. In the present case, after consideration of the testimonies of essential prosecution witnesses, rather more doubt is created by the prosecution as there are contradicting testimonies led on record which creates sufficient doubt over the story put forth by the investigating agency.
29. Accordingly, in view of the findings given above, all accused persons are hereby acquitted of all the offences charged with.
30. Copy of this judgment be given free of cost to all the accused against receiving. BHARAT Digitally signed by BHARAT AGGARWAL AGGARWAL Date: 2023.08.19 17:01:53 +0530 ANNOUNCED IN OPEN COURT (Bharat Aggarwal) Today i.e. 19.08.2023 MM-05/ SHD, KarkardoomaCourts/Delhi 19.08.2023 Present judgment consists of 21 pages and each page bears my initials. Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date: 2023.08.19 17:02:00 +0530 (Bharat Aggarwal) MM-05/ SHD,KarkardoomaCourts/Delhi 19.08.2023 FIR no. 114/09 PS Jagatpuri State Vs. Gagan Abbot & Ors. Page no. 21 of 21