Delhi District Court
State vs Yashpal Singh on 17 September, 2024
IN THE COURT OF AAYUSHI SAXENA,
JUDICIAL MAGISTRATE FIRST CLASS-05
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
CR Case No. -: 83416/16
CNR No. -: DLSH020033702014
FIR No. -: 373/2013
Police -: Jagatpuri
Station
Section(s) -: U/s
323/325/341/506/34
IPC
In the matter of:
STATE
(Represented by Sh. Bhuvnesh Sharma,
Ld. APP for the State)
VERSUS
1.Yash Pal Singh S/o Late Sh. Kartar Singh.
2. Dinesh S/o Laxmi Naryan.
3. Vivek Mighlani S/o Sh. Jitender Mighlani.
...... Accused Mahfooj Khan,
1. Name of Complainant :
S/o Mushraf Khan
1. Yash Pal Singh S/o Late Sh.
Kartar Singh
2. Name of Accused : 2. Dinesh S/o Laxmi Naryan
3. Vivek Mighlani S/o Sh. Jitender Mighlani
3. Offence complained of or : 323/325/341/506/ proved 34 IPC FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 1 of 26
4. Plea of Accused : Pleaded not guilty
5. Date of commission of offence : 16.08.2013
6. Date of filing of case : 22.05.2014
7. Date of reserving Order : 13.09.2024
8. Date of pronouncement : 13.09.2024
9. Final Order : Acquittal BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX -
1. In brief, the case as per prosecution is that on 16.08.2013, pursuant to receipt of PCR call vide DD No. 22A, IO SI Inderjeet reached at the spot i.e. Vespa showroom Red Light, Jagatpuri where he came to know that the victim had been taken by PCR van to Hedgewar hospital.
Thereafter, IO SI Inderjeet along with CT Sanjeev went to Hedgewar hospital, where they obtained MLC No. 2728/13 of victim Israt and MLC No. 2779/13 of injured Mehfooz. He also recorded statement of injured Mehfooz Khan, who inter alia stated that on 16.08.2013 at about 03:30 PM, he went with his friend Israt Beg, for getting his scooty (bearing no. DL 14S C 4895) repaired at Vespa showroom near red light Jagatpuri. He further stated that at the said showroom, they were told that for damage on the scooty, they would not receive any claim despite the fact that the said scooty was purchased from the abovesaid showroom and having full insurance cover. He further stated that on the said point, they had verbal altercation with the showroom persons and they left the said showroom saying that "apki shikayat hum police se karenge". Thereafter, 3 persons came from behind, who FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 2 of 26 stopped the complainant Mehfooz and his friend Israt Beg and started giving beatings to both of them and one out of the said three persons came from behind and attacked Israt Beg with some heavy object on his right shoulder, due to which he received injury and Mehfooz also received injury on his forehead. Further, all the accused persons threatened the complainant and his friend of dire consequences. He further stated that thereafter, the complainant Mehfooz called at 100 number whereafter PCR van came at the spot of the incident and took him and Israt Beg to Hedgewar Hospital, where they received treatment. Based on the complaint of the complainant, the FIR in the present case was registered.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the investigation, the Police Report under Section 173 Cr.P.C., against the accused was filed.
3. Vide order dated 22.05.2014, Ld. Predecessor of this Court took cognizance of the offence and summons were issued upon the accused persons. On 28.08.2014, accused persons had appeared and copy of the police report alongwith documents annexed therewith, were supplied to all of them, as per Section 207 Cr.P.C.
4. On finding a prima facie case against the accused persons, charge under Section 341/323/325/506/34 IPC FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 3 of 26 was framed against all the accused persons, by Ld. Predecessor of this Court on 11.12.2014, to which the accused persons pleaded not guilty and claimed trial.
PROSECUTION'S EVIDENCE;
5. In order to prove its case, prosecution has examined following witnesses:
5.1 PW Mehfooz Khan (complainant) deposed that on 16.08.2013 at about 03-03:30 pm, he along with his friend Israt went to Vespa showroom for getting his scooty repaired as it had got damaged due to an accident. He further deposed that the manager and attendant informed him that the scooty would not be repaired without any charge and altercation took place between him and the persons at the showroom. He further deposed that when he came out of the Vespa showroom, 3 persons came and hit his friend on his shoulder with an iron rod and gave beatings to him with fist and iron rod due to which he sustained injury on his eyebrow. He further deposed that the accused persons threatened to kill him and his friend if they made any complaint to the police. He further deposed that thereafter, someone made a call to 100 number and police took both the victims to Hedgewar hospital.
All the accused persons were identified by PW-1 during his examination. He also deposed that he had shown the place of incidence to the police. PW-1 could not be cross examined as he had expired before his cross-examination could be conducted.
FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 4 of 26 Accordingly, he was dropped from the list of the witnesses vide order dated 07.03.2019.
5.2 PW Ishrat Beg, inter-alia deposed that on 18.08.2013 at about 03:30 pm, he along with PW Mehfooz Khan, went to Vespa showroom near Jagatpuri red light for repair of the scooty of PW-1. He further deposed that altercation took place between them and the Manager of Vespa Showroom and the Manager got agitated when PW2 told him that he would make a complaint against him to the police. He further deposed that the said Manager and 2 other persons started beating them and one heavy rod was hit on his right shoulder and his shoulder got fractured. He further deposed that all the 3 persons threatened them that they would kill them if they came to the showroom again. He further deposed that his friend Mehfooz made a call at 100 number and he became unconscious and PCR took him to Hedgewar hospital. He further deposed that due to fracture in his shoulder he remained on bed rest for 2 ½ months.
PW-2 identified all the accused during his testimony and stated that the person who hit him on his right shoulder was the owner of the Vespa showroom. PW- 2 pointed towards accused Vivek and stated that he was the one who had hit him on his right shoulder with the rod.
He was duly cross-examined by Ld. Counsel for the accused.
5.3 PW Dr. Ravi deposed that on 16.08.2013 he was FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 5 of 26 working at Hedgewar Hospital as CMO and on that day patient Israt Beg was brought to casualty by HC Ravinder with alleged history of physical assault. He further deposed that patient complained of pain in right shoulder, right elbow and right wrist joints and on local examination of patient he found redness on his right cheek. He further deposed that after primary treatment patient was referred to Ortho department and he prepared the MLC of patient. He further deposed that on that day, he also examined patient Mehfooz, who was brought to the casualty with alleged history of assault and on his local examination, he found a lacerated wound of size 1x0.5 cm over his left eyebrow and after primary treatment, patient was referred to surgery Department. He further deposed that he prepared MLC of patient Mehfooz Ex. PW3/B. He was duly cross-examined by Ld. Counsel for all the accused persons.
5.4 PW Ct. Sanjeev deposed that on 16.08.2013, he was posted at PS Jagatpuri and on that day, he was on patrolling duty and during patrolling at around 04.00 pm when he reached Jagatpuri red light, SI Inderjeet met him. He further deposed that SI Inderjeet informed him regarding a quarrel and also informed that the injured was in Hedgewar Hospital. He further deposed that thereafter, he along with SI Inderjeet visited Hedgewar Hospital and there SI collected MLC of injured, whose name he did not remember on the day of his cross-examination. He further deposed that IO recorded statement of injured and prepared rukka on FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 6 of 26 the basis of the same and rukka was handed over to him for registration of FIR in the PS. He further deposed that he visited PS and handed over the same to DO concerned and after registration of FIR, he collected copy of FIR and original rukka from DO concerned and went to the spot near LML Vespa Showroom near Jagatpuri red light and handed it to SI Inderjeet. He further deposed that IO arrested accused Yashpal in his presence and one other accused was also arrested whose name he did not remember on the day of his examination. He further deposed that the documents of arrest were prepared at the spot of incident and the arrested accused were released on bail as they produced their sureties. At that stage, arrest and personal search memo of accused Yashpal Ex. PW1/G and PW1/D were shown to the witness, who correctly identified the same and stated that the same were prepared in his presence. The witness also identified the arrest and personal search memo of accused Dinesh and stated that the same were also prepared in his presence. 5.5 PW DO ASI Rajesh Raina deposed that on 16.08.2013, he was posted at PS Jagatpuri as head constable/duty officer and on that day his duty hours were from 04.00 PM to 12.00 AM and at about 5.30 PM, Ct. Sanjeev came alongwith tehrir and the case was registered with original tehrir and computerised copy of FIR and thereafter handed over the same to Ct. Sanjeev. He further deposed that he had registered DD no. 28 A dated 16.08.2013 Ex. PW-5/A and FIR FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 7 of 26 no. 373/2013 Ex. PW-5/B (OSR).
He was duly cross-examined by Ld. Counsel for the accused persons.
5.6 PW IO Retired SI Inderjeet Singh deposed that on 16.08.2013, he was posted at PS Jagatpuri as SI and on that day, on receiving DD no. 22A, he reached at the spot i.e. Vespa Showroom, Red light, Jagatpuri. He further deposed that Ct. Sanjeev was on patrolling duty and he came to him. He further deposed that they came to know that the injured persons had already been taken to the Hedgewar Hospital and thereafter, they reached Hedgewar Hospital and collected MLC no. 2778/13 of Ishrat Beg and MLC no. 2779/13 of Mehfooz enquired about the incident and recorded statement of Ishrat Beg. He further deposed that he had sent rukka to PS by Ct. Sanjeev for registration of FIR and then he, alongwith both the victims, went to the spot and prepared site plan Ex. PW-6/A and Ct. Sanjeev came at the spot alongwith the copy of FIR and original rukka. He further deposed that then he and Ct. Sanjeev alongwith victims searched for the accused persons and reached at Vespa Showroom where all three accused namely Yashpal, Vivek and one more was found and he asked the accused to come to the PS alongwith bail bonds. He further deposed that he arrested all the three accused persons vide arrest memo Ex. PW-1/B, Ex. PW-1/C and Ex. PW-1/D and he personally searched them vide personal search memo already Ex. PW-1/E, PW- 1/F and Ex. PW-1/G. He further deposed that FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 8 of 26 thereafter he received final MLC of the victims and prepared the chargesheet.
He correctly identified all three accused persons who were present in court on the date of his examination. He was duly cross-examined by Ld. Counsel for the accused persons.
5.7 PW Dr. Akshay Bahadur Specialist surgery, Dr. Hedgewar Arogya Sansthan deposed that he had been deputed to depose on behalf of Dr. Avinash SR Surgery in the present case. He stated that he had worked with Dr. Avinash and had seen him writing and signing the documents at the hospital and he also deposed that he was well aware and could identify his handwriting and signature. Thereafter, he was shown MLC Ex. PW3/B and he stated that Dr. Avinash had signed and prepared the opinion from point X1 to X2 and X3 to X4 and bears signature at point B and C and the opinion from X1 states "as per clinical report the injury mentioned is Simple" to X2.
He was duly cross-examined by Ld. Counsel for the accused persons.
5.8 PW Dr. Ravi deposed that he had been deputed to depose on behalf of Dr. Nikunj SR Orthopedics in the present case. He further deposed that he had worked with Dr. Nikunj and had seen him writing and signing the documents at the hospital and he was well aware and could identify his handwriting and signature. At that stage the witness was shown MLC Ex. PW3/A, to which he stated that Dr. Nikunj had signed at point B and prepared the opinion from point X1 to X2 and he FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 9 of 26 also stated that the signature at point C and D and the opinion at point X3 to X4 given by Dr. Jai who was also working with him at Dr. Hedgewar Arogya Sansthan. He also deposed that the opinion from point X3 to X4 could not be explained by him but he could verify the nature of injury which was grievous. He was duly cross-examined by Ld. Counsel for the accused persons.
5.9 PW Dr. Hemant deposed that he is an Orthopedic Specialist at Dr. Hedgewar Arogya Sansthan. He was shown MLC Ex PW3/A and the observations at point X3 to X4 and he stated that it is mentioned "as per MLC X-Ray no. 818 dislocation seen at right shoulder."
6. After completion of the prosecution evidence, statement of accused persons u/s 313 Cr.P.C was recorded on 25.01.2023, wherein accused person Vivek stated that he was not there at the spot where the alleged incident took place and that he also made a call to the police at hundred No. regarding misbehaviour of the complainant Mehfooz. Additionally, all the accused persons denied the incriminating evidence that was put to them. They further stated that they did not wish to wish to lead defence evidence and accordingly, the matter was fixed for final arguments.
7. I have heard the arguments of Ld. APP for State and Ld. defence counsel. I have also perused the case file carefully.
FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 10 of 26
8. As already mentioned, the accused persons namely Yashpal, Dinesh and Vivek have been facing trial for the commission of offences punishable u/s 323/325/341/506/34 IPC.
9. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubt 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.
10. At this stage, let us discuss the legal principles involved in the present case.
10.1 The term "hurt" is defined under section 319 IPC as bodily pain, disease or infirmity caused to any person by another person.
The offence of voluntarily causing hurt is defined under section 321 IPC as follows :-
321. Voluntarily causing hurt --Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 11 of 26 hurt to any person, is said "voluntarily to cause hurt".
The offence of "voluntarily causing hurt" 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.
10.2 The accused persons have also been charged for the offence of wrongful restraint. "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 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.
10.3 Voluntarily causing grievous hurt" is defined under section 322 IPC, which reads as under :-
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 12 of 26 hurt."
Explanation: A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind. The offence of "voluntarily causing grevious hurt" is made punishable under section 325 IPC, which is reproduced hereinafter for better understanding:-
325- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
10.4 Section 503 IPC defines Criminal Intimidation and the charging section thereof is Section 506 IPC.
Section 503 IPC has the following essentials:
1. threatening a person with any injury.
(i)To his person, reputation or property; or
(ii)to the person, or reputation of any one in whom that person is interested.
2. The threat must be with intent
(i) to cause alarm to that person, or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or A bare perusal of section 506 IPC makes it clear that part 2 of the said section deals with the graver form of the offence of criminal intimidation which is punishable with imprisonment of either description for a term which may extend to 7 years, or with fine or both. The FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 13 of 26 punishment prescribed for the offence under part 1 of section 506 IPC is imprisonment of either description for a term which may extend to 2 years, or with fine, or with both.
10.5 to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
11. 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, in furtherance of their common intention, wrongfully restrained the complainant Mehfuz Khan and his friend namely Israt Beg;
(b) That the accused persons, in furtherance of their common intention, voluntarily caused hurt to the complainant Mehfuz Khan and voluntarily caused grievous hurt to his friend namely Israt Beg; and
(c) that the accused persons threatened to kill the complainant Mehfuz Khan and his friend namely Israt Beg.
12. The present FIR was registered on the complaint of the complainant namely Mehfooz. The said complaint was exhibited as PW1/A during examination of PW1 Mehfooz (complainant). In the said complaint it has been stated by the complainant Mehfooz that on 16.08.2013 at about 03:30 PM, he went with his friend Israt Beg, for getting his scooty (bearing no. DL 14S C 4895) repaired at Vespa showroom near red light Jagatpuri. He further stated that FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 14 of 26 at the said showroom, the people at the service centre told them that for the damage on the scooty, they would not receive any claim despite the fact that the said scooty was purchased from the abovesaid showroom and having full insurance cover. He further stated that on the said point, they had verbal altercation with the showroom persons and they left the said showroom saying that "apki shikayat hum police se karenge". Thereafter, 3 persons came from behind, who stopped him and his friend Israt Beg and started giving beatings to both of them and one out of the said three persons came from behind and attacked Israt Beg with some heavy object on his right shoulder, due to which Israt received injury and the complainant also received injury on his forehead. Further, all the accused persons threatened the victims of dire consequences. Thereafter, the complainant Mehfooz called at 100 number whereafter PCR van came at the spot of the incident and took the complainant and Israt Beg to Hedgewar hospital, where they received treatment. 12.1 When PW1 was examined in chief on 02.05.2015, he inter-alia deposed that on 16.08.2013 at about 3-3:30 PM, he and his friend Israt had gone to Vespa showroom for getting his scooty repaired and an altercation took place between him and the manager and attendant of Vespa showroom and when they came out of the showroom, 3 persons came from behind and hit his friend on his shoulder by iron rod. He also deposed that he was also beaten with fists and iron rod and that he received injury on his left eyebrow. He also deposed that they also threatened FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 15 of 26 him and his friend that they would kill them if they made any police complaint. He further deposed that someone made a call at 100 number and thereafter police came at the spot and took him and his friend to Hedgewar Hospital.
12.2 At the outset is it is worthwhile to mention that in his examination in chief, PW1 stated that his friend Mehfooz was hit with an iron rod however this fact was never mentioned by the complainant in his complaint Ex. PW1/A, which is his first statement given to the police. It seems to be an afterthought and an improved version for obvious reasons.
13. Now, when PW Ishrat Beg was examined in chief, he inter-alia deposed that the manager and two other persons started beating them and one heavy rod was hit on his right shoulder due to which his shoulder got fractured.
During his cross-examination by Ld. Counsel for the accused, he stated that he had told the IO that he was attacked by the accused persons with the rod. At that stage the witness was confronted with his statement recorded by police under section 161 CR PC Mark A, and it was observed that it was not recorded. Also, he stated that police did not seize any rod in his presence. He also stated that the IO did not make efforts in his presence to recover the said road. He further stated that he had stated to the IO about the length and width of the road.
At that stage witness was again confronted with his FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 16 of 26 statement recorded by police under section 161 CR PC Mark A, and it was observed that it was not recorded.
13.1 Admittedly, neither the FIR nor the statements of PW1 Mehfooz and PW2 Irshat Beg, recorded by the IO u/s 161 Cr.P.C, find any mention of PW2 being hit with an iron rod. It was mentioned by PW1 and PW2, for the first time, during their deposition in the Court. So, this appears to be an afterthought. It is also worthwhile to mention here when PW2 was cross examined by Ld. Counsel for the accused, he deposed that he was working as a Head Constable in Delhi Police, so it is unbelievable that a serving police official would omit such a vital fact regarding weapon of offence and just with a view to ensure that the accused facing trial gets punished, he falsely introduced this alleged weapon of offence namely "the iron rod" particularly when even as per the case of the prosecution no such alleged iron rod had been recovered. This casts a doubt on the case of the prosecution.
13.2 When PW6 IO SI Inderjeet Singh (Retd.) was cross-examined by Ld. Counsel for the accused, he inter-alia deposed that the Victim Mehfooz had told him that accused Yashpal had hit him with some iron object and he also stated that no efforts were made to recover the said iron object. He further deposed that Victim Irshat did not tell him regarding beating by any such iron rod.
13.3 It is hard to believe that if IO was told that victim FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 17 of 26 Mehfooz was hit with an iron rod, then why no effort was made by him to recover any weapon of offence. This is a serious lapse on his part amounting to dereliction of his statutory duty in order to help his fellow police officer. So, it only confirms that no such iron rod was used in this alleged incident. 13.4 Also, as mentioned above, PW6 stated that victim Irshat did not tell him regarding beating by any such iron object. However, PW2 Irshat Beg had deposed in the Court that he had stated to the IO that he was attacked by the accused persons with a rod. So, there is a material contradiction in the statements given by PW2 and PW6, which do not inspire confidence of this Court. Moreover, it creates a serious doubt in the story put forth by the prosecution. 13.5 In order to prove MLC of Irshat Beg (Ex PW3/A) Dr. Ravi was examined, who deposed that on 16.08.2024 Irshat Beg was brought to the casualty by HC Ravinder, with alleged history of physical assault. Pertinently neither in the said deposition nor in the MLC Ex. PW3/A, there is any mention of Irshat Beg being hit with an iron rod.
13.6 From the above discussion it becomes clear that different statements have been given by PW1 Mehfooz (complainant) and PW2 Irshat Beg regarding the alleged incident and there is material contradiction in their statements and the same are not in consonance with the medical evidence. This raises a doubt on the story put forth by the prosecution.
FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 18 of 26
14. PW1 had deposed during his examination-in-chief that "someone" made a call at 100 number. However, in his statement Ex. PW1/A, complainant Mehfooz had stated that he had made a call at 100 number.
14.1 When PW2 was examined on 29.04.2016, he stated that his friend Mehfooz had made a call at 100 number and thereafter he became unconscious and PCR took him to Hedgewar hospital.
During his cross-examination, he was given a suggestion by Ld. counsel for the accused to which she stated that "it is wrong to suggest that we had not made a call at hundred No. rather showroom owner made a call to the police and in response to the same police reached at the spot". He further deposed that he had made a call at 100 number through his mobile No. 9871621768. In that regard, a question was put by Ld. Counsel for the accused to him that "Question: It is put to you that during your examination in chief on 29.04.2016 you have deposed that your friend Mehfooz made a call at 100 number, whereas today you deposed that you made a call at 100 number through your above said mobile number. What you have to say?"
He answered that "we both made a call to the police at 100 number".
He was again asked a question by Ld. counsel for the accused to which he answered that he had made a call to the police before he became unconscious. Further during his cross-examination, he deposed that he had stated to the IO that after making a call at 100 FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 19 of 26 number, he became unconscious. At that stage the witness was confronted with his statement recorded by the police under section 161 Cr.P.C. i.e. Mark A where it was not so recorded and he further deposed that IO did not mention complete facts in his statement.
So there appears to be material contradiction in the statements given by the prosecution witnesses regarding call made to the police officials.
15. When PW IO SI Inderjeet Singh was examined, he deposed that on 16.08.2013, he was posted in PS Jagat Puri as SI and on that day, on receiving DD No. 22 8, he reached at the spot i.e. Vespa showroom, red light, Jagatpuri and Constable Sanjeev was on patrolling and he came to him. Further he deposed that they came to know that injured persons had already been taken to Hedgewar Hospital. During his cross-examination by Ld. Counsel for the accused, he stated that he did not make any departure entry at the PS. This is very unusual for a police officer as police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules.
15.1 It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered:
FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 20 of 26
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
15.2 At this juncture, it would be relevant to refer to the judgment of Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, wherein it has been held that :
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
15.3 In the present case, the relevant entries regarding the arrival and departure of the police officials have not been proved on record. The IO has failed to comply with the legal provisions, which is a serious lapse on his part and which further creates a doubt on the case of the prosecution.
16. When PW6 IO SI Inderjeet Singh (Retd.) was cross-
FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 21 of 26 examined by Ld. Counsel for the accused, he inter-alia deposed that when he reached the spot of the incident, then the public (about 5-7 persons) told him that the victims had been taken to Hedgewar Hospital and he did not record their statements. He also deposed that there were several people at the Vespa showroom but he did not record their statement.
16.1 At this juncture it is relevant to mention the judgment of "Anoop Joshi Vs. State", 1992 (2) C.C. Cases 314 (HC), wherein it has been held by Hon'ble High Court of Delhi held that :
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
16.2 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 FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 22 of 26 fatal to the prosecution case and accused is entitled to benefit of doubt."
16.3 Here is a case where admittedly no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in the present case. 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 by the IO and this, by itself, is a circumstance throwing doubt on the prosecution case.
17. The improved version of the complainant Mehfooz Khan and Israt Beg, in their substantive evidence in the Court coupled with material contradictions in their testimonies, has only created more suspicion over the story alleged by the prosecution. Additionally, as already pointed above, there is a serious lapse on the part of the investigating agency in collection of vital evidence, which would have helped the Court in dispensation of justice.
18. It is a 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 FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 23 of 26 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 scrutinized 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.
19. From a 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 been 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 Mehfooz khan and his friend Israt Beg have been proved through MLC Ex.PW-3/B and PW3/A respectively, which clearly shows that they 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, which the prosecution has failed to establish.
20. 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 FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 24 of 26 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."
21. 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 in the testimony of PW1 and PW2. 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 their testimony and to discredit the same.
22. The essential elements for fastening criminal liability for the offences punishable under section 323/325/341/506/34 of the IPC have not been proved beyond reasonable doubt.
DECISION
23. In view of the aforesaid discussion, with the prosecution failing to prove its case against accused persons beyond reasonable doubt, accused persons i.e. Yashpal Singh, Dinesh and Vivek Mighlani stand acquitted for the offence u/s 323/325/341/506/34 in FIR no.373/2013 PS FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 25 of 26 Jagatpuri.
24. Case property, if any, shall be disposed of as per rules, after expiration of period of appeal and as per law. Case file be consigned to the record room after due compliance.
ANNOUNCED IN OPEN COURT TODAY i.e. 17.09.2024.
Digitally signed by AAYUSHIAAYUSHI SAXENA Date:
SAXENA 2024.09.18 (Aayushi Saxena) 16:45:35 +0530 JMFC-05/ SHD, Karkardooma Courts/Delhi/17.09.2024 Present judgment consists of 26 pages and each page bears my initials. Digitally signed by AAYUSHI AAYUSHI SAXENA SAXENA Date:
2024.09.18 16:45:40 +0530 (Aayushi Saxena) JMFC-05/SHD, Karkardooma Courts/Delhi/17.09.2024 FIR No. 373/2013 PS Jagatpuri State Vs. Yashpal Singh Page no. 26 of 26