Delhi District Court
Judgments. In Case Law Reported As ... vs . State" on 16 October, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
Digitally
State signed by
POOJA
Vs.
POOJA TALWAR
TALWAR Date:
2018.10.18
Krishan Kumar & Ors. 17:37:42
+0530
FIR No. 45/2013
P.S Saket
JUDGMENT
1. Sr. No. of case 2033114/2016
2. Date of institution 01.08.2013
3. Name of the complainant Sh. Manish
S/o Sh. Hari Om Singh
R/o K-316, Lado Sarai, New
FIR No. 45/2013 PS Saket Page- 1 of 29
Delhi.
4. Date of commission of offence 28.01.2013
5. Name of accused 1. Krishan Kumar
2. Subhash
3. Ashok
All sons of Late Jai Pal Singh
R/o F-11-K/A, K-316, Lado
Sarai, New Delhi.
6. Offence complained of U/s 323/325/342/34 IPC
7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 11.10.2018
9. Final order Acquitted
10 Date of such judgment 16.10.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that a DD Entry 33A was received on 28.01.2013. Pursuant to which SI Durgadas alongwth HC Praveen reached at the spot. There they met two groups one comprising of Krishan and Subhash and the other Manish and Jagminder. Both the said groups were abusing and manhandling each other. Lot of public had also gathered at the FIR No. 45/2013 PS Saket Page- 2 of 29 said spot. Subhash and Krishan were saying that they will teach Manish a lesson and Jagminder said that since they had assaulted his brother Manish he would see them some other day. Both the parties were separated. A Kalandra under section 107/151 Cr.PC was issued and the three persons namely Jagminder, Subhash and Krishan were apprehended and were produced before SEM Court on 28.01.2013. Manish was admitted in Trauma Centre, AIIMS. On 29.01.2013 Manish was declared fit for statement and his statement was recorded. He stated in his complaint that on 28.01.2013 at around 7.40 pm he went out to purchase eggs. He was confined by Kishan, Ashok and Subhash and stated that since he had filed RTIs seeking information about their house they would teach him a lesson. All the three took him to their house and assaulted him with stone slab and iron rod due to which he got unconscious and when he regained consciousness he was in Trauma Centre. On his complaint, FIR was registered. Investigation was carried out and chargesheet was filed.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused persons before Court and prima facie case having been made out, charge for the offence under section FIR No. 45/2013 PS Saket Page- 3 of 29 342/34 IPC and section 325/34 IPC was framed against accused persons namely Krishan Kumar, Ashok and Subhash.
3. In order to prove its case, the prosecution examined 9 witnesses in all.
4. Complainant Sh. Manish was examined as PW1. He deposed that on 28.01.2013 at about 7.30 pm he was going to purchase eggs from his house. In the meanwhile, accused Krishan @ Kaley, Ashok @ Sonu and Subhash @ Monu who used to reside behind his house at F-11/K 316 came to him and restrained him and told "Tu hamari badi complaint baaji karta aur hamaare ghar ki bade RTI lagata hai aur aaj tuje hum sabak sikhanyenge". Thereafter, all the accused started abusing him and forcibly took him to their house and hit him with stone slab, iron rod and danda. They all hit him with slabs on his left leg and gave beatings on all parts of his body. He became unconscious. Thereafter, he does not know what had happened. When he gained his conscious, he found himself at AIIMS Trauma Centre. He remained in the hospital. On the next day, police came and recorded his statement which is Ex.PW1/A. On the basis of statement of complainant, the case was registered. He further deposed that on 11.02.2013, he got released from the FIR No. 45/2013 PS Saket Page- 4 of 29 hospital after proper treatment. Witness correctly identified all the accused persons before the Court.
5. Sh. Jagminder was examined as PW2. He deposed that on 28.01.2013 at around 7.30 to 8.00 pm, he was coming from Gym situated in his village towards his home on foot. When he reached near Shiv Mandir, Old M.B. Road, he met his friend namely Naresh and they started talking. In the meantime, his brother Manish was coming from his house side. He asked him why he was wondering in the night. His brother replied that "Ande Le K Aa Raha Hoon". He told him that "Jaldi Le Ke Aao, Main Yahin Par Khada Hoon". When his brother did not return for some time, he started searching him and proceeded towards Girls School at main road at their village. He saw that accused Krishan was beating his brother with sili, co-accused Ashok was beating his brother with danda and accused Subhash was assaulting with some saria (iron pipe). Accused Krishan told his brother that "Tu hamare ghar ke bahut RTI lagata hai, tujhe acchi tarah se batata hoon". Thereafter, he tryied to rescue his brother from the accused persons. In the meanwhile, one of accused assaulted him from behind with some object on his back side of head. He sustained injuries and blood was FIR No. 45/2013 PS Saket Page- 5 of 29 started oozing from his wounds. He felt semi-conscious. The accused persons dragged his brother towards their house and gave beating to him at that time with the said objects. Thereafter, he became unconscious and regained his consciousness at the spot after few minutes. He saw that police officials were lifting him. Some police officials were taking out his brother from the house of accused Krishan. He further deposed that his brother also sustained several injuries on different parts of body. Police official took him as well as his brother to AIIMS Trauma Centre for medical examination where they were medically examined. After medical examination, he returned to PS Saket with police official who recorded his statement. Thereafter, he accompanied the police official to the spot. He pointed out the place of incident where police official prepared the site plan at his instance. Then, he alongwith police official returned to PS. Police official obtained his signatures on some blank papers.
On 09.02.2013 he was called by police officials at PS Saket. He went to PS Saket and found that accused Subhash and Krishan were present there. He identified them in the PS and stated that they were involved in the abovesaid incident.
FIR No. 45/2013 PS Saket Page- 6 of 29 Thereafter, IO arrested them vide arrest memos vide Ex.PW2/A and Ex.PW2/B. Witness correctly identified the case property i.e. danda as Ex.P1 which was used by accused Ashok. Witness correctly identified the accused persons before the Court.
6. Ct. Ajay was examined as PW3. He deposed that on 04.04.2013, he was on patrolling duty in the area of beat No.1. During the course of patrolling at around 4.00 to 5.00 pm. when he reached at Gumbad Wali Gali, he saw accused Ashok was standing in front of his house i.e. F-316, Lado Sarai. He apprehended accused Ashok. In the meantime, IO SI Durgadas came at the spot and inquired from accused Ashok who confessed that he was involved in the incident and disclosed that he gave danda blow on the person of complainant namely Manish. Thereafter, IO arrested accused Ashok vide arrest memo Ex.PW3/A. Thereafter, accused got recovered a danda which was used by him in the incident from his house. IO seized the said danda vide seizure memo Ex.PW3/B. Thereafter, accused was released on bail after furnishing bail bond. The case property was deposited in the Malkhana. IO recorded his statement. Witness correctly identified case property i.e. danda as already Ex.P1. Witness also correctly identified accused FIR No. 45/2013 PS Saket Page- 7 of 29 Ashok before the Court.
7. HC Vikram was examined as PW4. He deposed that on 28.01.2013, he was posted as duty officer at PS Saket. That day, he received a call at around 8.22 pm regarding the quarrel at H. No. K-316, near Gumbad Wala Park, Lado Sarai. He reduced the said information on a plain paper which is Ex.PW4/A. He also received a call from AIIMS Hospital regarding the admission of injured Manish and Jagminder. The information was reduced on a plain paper which is Ex.PW4/B. On 29.01.2013, he recorded the present FIR on the basis of rukka received from SI Durgadass. The copy of FIR is Ex.PW4/C and endorsement on the rukka is Ex.PW4/D. After registration of FIR, he handed over the copy of FIR and original rukka to SI Durgadass at PS.
8. Ct. Shiv Kumar was examined as PW5. He deposed that on 28.01.2013, SI Durgadass received a DD regarding the quarrel which took place at village Lado Sarai, Saket. Thereafter, he alongwith SI Durgadass and Ct. Bhagirath went to the spot i.e. near Gumbad, Lado Sarai. Many public persons were gathered there. They heard the noise of abusive language from the said FIR No. 45/2013 PS Saket Page- 8 of 29 crowd. Thereafter, SI Durgadass tried to pacify accused Krishan, Subhash and Jogender, but they did not hear the request of IO and they continued quarreling with each other. Thereafter, SI Durgadass shared the said information with senior officers. On the instructions of senior officials, they apprehended the accused persons under section 107/151 Cr.PC. Then they took the abovesaid accused persons to PS where IO carried out the proceedings under section 107/151 Cr.PC against the accused persons. After medical examination, the accused persons were sent to lock up On 09.02.2013, he joined the investigation of present case. He alongwith IO SI Durgadass went to Lado Sarai where he arrested the accused persons namely Subhash and Krishan vide arrest memos already Ex.PW2/A and Ex.PW2/B. After arrest, both accused persons were released on bail after furnishing bail bond. Thereafter, they searched the remaining accused persons but no clue was found. The complainant was also present at the time of arrest of accused Subhash and Krishan and he signed their arrest memos. After that, complainant left the spot and they returned to PS. IO recorded his statement. Witness correctly identified accused Subhash before the Court.
FIR No. 45/2013 PS Saket Page- 9 of 29
9. Ct. Bhagirath was examined as PW6. He deposed on the same lines as PW5. He further deposed that he saw that accused Subhash, Jagminder, Krishan and Manish were quarreling at the spot. Manish sustained injuries. Thereafter, they took the said four persons to AIIMS Trauma Centre where they were medically examined. After medical examination, they returned to the spot alongwith said four persons. Thereafter, SI Durgadas arrested the four persons under section 107/151 Cr.P.C. Witness correctly identified accused Subhash before the Court.
10. SI Durgadas was examined as PW7. He deposed that on 28.01.2013 at around 8.22 pm, he received a DD No. 33A regarding a quarrel at K-316, Lado Sarai, New Delhi. Thereafter, he alongwith HC Praveen went to the spot there they met two groups; one group was comprising of accused Krishan and his brother accused Subhash and another group was comprising of Manish and Jagminder. They saw that both the groups were manhandling each other. Beat staff members were also present there. ASI Makhan Singh was also present at the spot. Thereafter, all the said persons except Manish were apprehended under section 107/151 Cr.PC. Injured Manish was taken to hospital by ASI Makhan Singh. The other members of FIR No. 45/2013 PS Saket Page- 10 of 29 the group were also taken to the hospital for their medical examination where they were medically examined. Thereafter, he moved an application for recording the statement of injured Manish. The concerned doctor made endorsement on the application that the patient/injured Manish was unfit for giving statement. Thereafter, accused Krishan Kumar, Subhash and Jagminder were produced before the Court of SEM, South under section 107/151 Cr.PC.
On 29.01.2013 the concerned doctor made endorsement on the MLC of injured Manish that the injured was fit for giving his statement. He recorded the statement of injured Manish as narrated by him which is already Ex.PW1/A. Thereafter, he returned to PS Saket. He made endorsement on the statement of injured Manish which is Ex.PW7/A. Thereafter, he got the FIR registered. During course of investigation, he examined witness Jagminder and recorded his statement. He prepared the site plan at the instance of Jagminder which is Ex.PW7/B. He recorded supplementary statement of Jagminder in this regard.
On 09.02.2013, he went to Lado Sarai alongwith Jagminder where he arrested accused Subhash and Krishan Kumar vide arrest memos already Ex.PW2/A and Ex.PW2/B. He obtained FIR No. 45/2013 PS Saket Page- 11 of 29 the opinion of concerned doctor on the MLC report of injured Manish Kumar and Jagminder where doctors opined the nature of injuries on the person of Manish as grievous and nature of injuries on the person of Jagminder as simple.
11. On 04.04.2013, he alongwith Ct. Ajay Singh went to Lado Sarai for the investigation of present case. There, he arrested accused Ashok Kumar in the present case vide arrest memo already Ex.PW3/A and recorded his disclosure statement which is Ex.PW7/C. Accused Ashok Kumar got recovered a wooden stick (danda) from his house which was used by accused persons in the said quarrel. He seized the said danda vide seizure memo already Ex.PW3/B. Accused was released on bail after furnishing bail bond. Thereafter, they returned to PS alongwith the case property. The case property was deposited in the Malkhana. He recorded the statement of witnesses. After completion of investigation, he prepared the challan and filed in the Court. Witness correctly identified case property i.e. danda as already Ex.P1. Witness also correctly identified accused persons before the Court.
12. Sh. Rajender Singh, Record Clerk, AIIMS Trauma Center, New Delhi was inadvertently examined as PW7 instead of FIR No. 45/2013 PS Saket Page- 12 of 29 PW8. He deposed that he was deputed by Dr. Amit Gupta, faculty in-charge, Medical Records to depose on behalf of Dr. Rupali Solanky and Dr. Sachin Sharma who had left the hospital. He produced the certified copies of MLC No. 350349 (in name of Jagminder), MLC No. 350347 (in the name of Manish Kumar), MLC No. 350365 (in the name of accused Krishan Kumar) and MLC No. 350366 (in the name of accused Subhash). He identified the signatures and handwriting of Dr. Sachin Sharma at point A and A1 on the MLC of Jagminder which is Ex.PW7/A. The certified copy of same is Ex.PW7/A1. He also identified the signatures of Dr. Rupali Solanky on the MLCs of Manish Kumar, accused Krishan Kumar and Subhash at point A1 and A2 on the MLCs which are Ex.PW7/B to Ex.PW7/D. The certified copy of same are Ex.PW7/B1 to Ex.PW7/D1. He also produced the certified copy of discharge summary of patients namely Jagminder, Manish Kumar, accused Krishan Kumar and accused Subhash. The certified copies of same are Ex.PW7/E to Ex.PW7/H.
13. HC Ashok Kumar was examined as PW9. He produced register No.19 pertaining to the year 2013. As per the record, the case property i.e a wooden stick (details were mentioned in FIR No. 45/2013 PS Saket Page- 13 of 29 the register) was deposited in Malkhana by SI Durgadas in the present case vide Serial No. 1173 dated 04.04.2013. Copy of same is Ex.PW9/A.
14. The entire incriminating evidence brought on record against the accused persons was put to them and their statements under section 313 CrPC were recorded separately.
15. It is stated by accused Subhash that he is innocent and has been falsely implicated in the present case. The present case is a false case. On 28.01.2013, when he was going towards his house house at about 7.30 to 7.45 pm, complainant Manish and his three brothers namely Jagminder @ Joginder, Sandeep and Phunne, assaulted him and caused injuries to him. All four persons carrying the weapons chased him and entered into his house and assaulted him and his brother Krishan Kumar. During that scuffle, Manish fell on the staircase and sustained injury on his leg. Manish was not taken to their house and was not caused injuries. Even the mobile phone of his brother Krishan Kumar was snatched by Joginder @ Jagminder. They in connivance with police officials got the present case registered against him as well as his brothers. Regarding this incident, a call was made by his brother Krishan Kumar to FIR No. 45/2013 PS Saket Page- 14 of 29 police from his mobile phone number i.e. 9871604953. However, no action was taken by police officials. Thereafter, they all four committed maarpeet (beating) with them in front of his house as well. The real culprits are the abovesaid four persons. His brother Krishan Kumar had made written complaint to DCP concerned with regard to inaction on the part of IO. Thereafter, when no action was taken against the culprits, he filed a complaint which is pending before this Hon'ble Court bearing CC No. 464367/2016.
16. It is stated by accused Krishan Kumar that he is innocent and has been falsely implicated in the present case. The present case is a false case. On 28.01.2013, he was suffering from fever and was taking rest as per the advice of doctor. Complainant Manish and his three brothers namely Jagminder @ Joginder, Sandeep and Phunne on 28.01.2013 first assaulted his brother Subhash @ Monu on the road and caused injuries to him. All four persons carrying weapons entered into his house and assaulted him also. During that scuffle, Manish fell on the staircase and sustained injury on his leg. Manish was not taken to their house and was not caused injuries.
17. It is stated by accused Ashok Kumar that he is innocent and FIR No. 45/2013 PS Saket Page- 15 of 29 has been falsely implicated in the present case. He was not even present in his house or in the village on 28.01.2013. On the same day he left his home at about 10.00 am and went to Raj Nagar, Palam to meet his cousin Sh. Vijay Joon and remained there till about 9.00 pm and returned back to his home at about 9.30 to 10.00 pm. A false case was lodged against him to take revenge as on his statement, complainant Manish and Jagminder @ Joginder were convicted on 14.07.2010 in FIR No. 764/2006, PS Malviya Nagar. On 04.04.2013, he was called in the police station and the arrest proceedings regarding him were conducted there. No alleged danda was recovered at his instance. The same was planted by police in connivance with complainant Manish and his three brothers namely Jagminder, Phunne and Sandeep.
18. Accused Krishan examined himself as DW1. He deposed that on 28.01.2013 he was suffering from fever and, therefore, was present at his home. At about 7.45 pm to 8.00 pm, his younger brother Subhash @ Monu reached home running and stated that four persons namely Sh. Manish, Sh. Jagminder @ Joginder, Sh. Sandeep @ Kallu and Sh. Phunne had assaulted him on the road and now they wanted to kill him. Subhash FIR No. 45/2013 PS Saket Page- 16 of 29 sustained injuries on his face and blood was oozing. He made a call to PCR from his mobile no. 9871604953. In the meantime, all the abovesaid four persons reached at his home. Joginder was having a black colour country made gun, Sandeep was having iron rod, Manish and Phunne were having dandas. They all assaulted him and caused injuries to him also. Joginder fired towards him but failed and the bullet went into air. He and Subhash went at the first floor of their house. All the aforesaid four persons chased them and also reached at first floor and gave beatings to him as well as his brother Subhash. Jagminder @ Joginder snatched his mobile phone and in that quarrel Manish fell on the staircase and sustained injury on his leg. Thereafter, all four aforesaid persons ran from his house. Police had registered the present FIR against him and his two brothers but no action was taken by police against the four persons for their illegal acts. The original medical prescription issued by Rural Medicare Centre, Village Saidulajab, Mehrauli, New Delhi is Ex.DW1/A, original complaint dated 01.02.2013 made to PS Saket is Ex.DW1/B, Internet generated copy of reply received by him from Service Provider Airtel is marked as Mark A and certified copy of complaint bearing CC No.157/1 FIR No. 45/2013 PS Saket Page- 17 of 29 dated 23.08.2013 (New No.464367/2016), filed by complainant against all the four persons is Ex.DW1/C.
19. Accused Ashok Kumar examined himself as DW2. He deposed that on 28.01.2013, he left home at about 9.30 to 10.00 am and went to Raj Nagar, Palam, New Delhi. For the entire day he remained there with his cousin (son of Bua) namely Sh. Vijay Joon. On the same day at about 9.00 pm, he received information regarding the quarrel at his home on his mobile phone number. Thereafter, at about 10.00 to 10.30 pm, he returned to his home. After about more than two months he was arrested by police and was falsely implicated in the present case. Regarding his falsely implication in the present case he had made the written complaints dated 02.05.2013 to the Commissioner of Police, DCP (South District) and DCP (Vigilance). Copies of said complaints and their postal receipts are Ex.DW2/A and Ex.DW2/B.
20. Sh. Vijay Joon was examined as DW3. He deposed that he knew accused Ashok Kumar who is his maternal uncle's son. On 28.01.2013, he came to him about 11.00 am at the site where his construction work was going on i.e Raj Nagar-II, Gali No. 9, Palam, New Delhi. At about 8.30 to 9.00 pm, accused FIR No. 45/2013 PS Saket Page- 18 of 29 Ashok received a call from his house that some quarrel took place at home and accused Subhash @ Monu and Krishan got some injuries. Thereafter, accused Ashok Kumar left that place.
21. I have heard Ld. APP for the State and Ld. counsel for accused persons and have also perused the judicial file carefully.
22. All the accused persons have been charged with the offence under section 342/34 IPC and section 325/34 IPC.
23. In oder to prove its case prosecution examined two eye witness PW1 Sh. Manish and PW2 Sh. Jagminder. As per PW1 Sh. Manish, he was confined by accused Ashok, Subhash and Krishan. They assaulted him with stone slab, iron rod and danda. They hit him with slabs on his left leg and gave beatings on all parts of his body due to which he became unconscious. In his cross examination, this witness admitted that he went to purchase eggs alone. When accused confined him and took him to his house, he was alone.
24. PW2 Sh. Jagminder deposed that around 7.30-8.00 pm, he was informed by his brother Manish that he was going to purchase eggs. When he did not return for sometime, he started FIR No. 45/2013 PS Saket Page- 19 of 29 searching his brother. He saw accused Krishan, Ashok and Subhash were beating his brother. Accused Krishan told his brother that "Tu Hamare Ghar Ki Bahut RTI Lagata Hai Tujhe Aaj Acchi Tarah Se Batata Hoon." When he tried to rescue his brother, he was assaulted with some object. He became semi- unconscious. He also states that he witnessed that accused persons dragging his brother towards their house. When he regained consciousness, he saw police officials were lifting him and some police officials were taking out his brother from the house of accused.
25. PW1 Sh. Manish does not talk about the presence of his brother Jagminder while he was being dragged to their house by accused persons. Whereas PW2 Sh. Jagminder states that he witnessed accused persons dragging his brother to their house.
26. PW1 Sh. Manish admitted in his cross examination that while accused Kishan told him that "Tu Hamare Ghar ...................se batata hoon", he was alone. Contrarily, it is stated by PW2 Sh. Jagminder that accused Kishan uttered these words in his presence. Both these witnesses claimed to have become unconscious being assaulted by accused persons.
FIR No. 45/2013 PS Saket Page- 20 of 29
27. As per the prosecution story, PW5 Ct. Shiv Kumar, PW6 Ct.
Bhagirath and PW7 SI Durgadas reached the place of incident and found that two groups of persons were quarreling amongst themselves. Despite best efforts, they could not pacify them and accordingly proceedings under section 107/151 Cr.PC were initiated against the persons i.e Krishan, Subhash and Jagminder. None of these three witnesses who were the first one's to reach the spot witnessed Ashok alongwith the four persons of two groups were quarreling with each other.
28. The version of PW5 Ct. Shiv Kumar, PW6 Ct. Bhagirath and PW7 SI Durgadas is contrary to the deposition of PW1 Sh. Manish and PW2 Sh. Jagminder who claimed to have got unconscious because of the assault by accused Kishan, Subhash and Ashok.
29. PW1 Sh. Manish even claims to have regained consciousness only after he reached at Trauma Centre. Per contra, as per the version of PW5 Ct. Shiv Kumar, PW6 Ct. Bhagirath and PW7 SI Durgadas, four people i.e. Kishan, Subash, Jagminder and Manish were quarreling and abusing each other when the police team reached the spot. In case PW1 Sh. Manish was unconscious and PW2 Sh. Jagminder was FIR No. 45/2013 PS Saket Page- 21 of 29 semi-conscious then they would have not been in position to abuse and quarrel with accused Kishan and Subhash.
30. As per the version of PW5 Ct. Shiv Kumar, PW6 Ct.
Bhagirath and PW7 SI Durgadas, the altercation still continued between PW1 Sh. Manish and PW2 Sh. Jagmidner on one side and accused Kishan and Subhash on the other side. None of these witnesses claims to have seen accused Subash and Kishan assaulting either PW1 Sh. Manish and PW2 Sh. Jagminder.
31. PW1 Sh. Manish and PW2 Sh. Jagminder claimed to have been assaulted with Danda, stone slabs and iron rod. None of these weapons was recovered on 28.01.2013.
32. As per testimony of PW3 Ct. Ajay and PW6 Ct. Bhagirath, on 04.04.2013, accused Ashok was arrested and he got a wooden danda recovered from his house which was used in the quarrel. The incident occurred on 28.01.2013 and the danda was allegedly got recovered on 04.04.2013 nearly after three months of the incident. The same was produced in the Court in an unsealed condition. No forensic evidence has been produced on record to prove that the same was used by accused Ashok in assaulting PW1 Sh. Manish.
FIR No. 45/2013 PS Saket Page- 22 of 29
33. Both PW3 Ct. Ajay and PW6 Ct. Bhagirath have not been able to explain the exact place in the house from where the same was recovered. There is also non compliance of section 100 (4) Cr.PC which mandatorily require the public witness at the time of recovery.
Under these circumstances, there is absolute non compliance of Section 100 Cr.PC. Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had FIR No. 45/2013 PS Saket Page- 23 of 29 observed as under:
"18. It is repeatedly laid down by this Court 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 evidence 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".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in FIR No. 45/2013 PS Saket Page- 24 of 29 the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the FIR No. 45/2013 PS Saket Page- 25 of 29 investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
34. The other two weapons i.e stone slab and iron rod have not been recovered.
35. As per the testimony of PW5 Ct. Shiv Kumar, PW6 Bhgagirath and PW7 SI Durgadas, the quarrel ensued between accused Subhash and kishan on one side and Manish and Jagminder on the other side. None talks about accused Ashok at the place of incident. He is later arrested on the statement of PW1 Manish.
36. There are discrepancies in the statement of PW1 Sh. Manish and PW2 Sh. Jagminder and the defence of accused persons is FIR No. 45/2013 PS Saket Page- 26 of 29 that due to prior enmity a quarrel occurred between accused Subhash and Kishan on one side and Manish, Jagminder and their two brothers on the other side. The same is corroborated to an extent with the testimony of prosecution witnesses PW5 Ct. Shiv Kumar, PW6 Ct. Bhagirath and PW7 SI Durgadas who also testified that as they reached the spot a quarrel was ensuing between the two groups.
37. Deposition of PW1 Sh. Manish, PW2 Sh. Jagminder, PW5 Ct. Shiv Kumar, PW6 Ct. Bhagirath and PW7 SI Durgadas are contrary in material aspects.
38. Prior enmity between the complainants and accused is not denied.
39. It has also come on record that injuries were also sustained by accused Kishan and Subhash. Their MLCs Ex.PW7/C and Ex.PW7/D are also on record.
40. From the evidence so led by the prosecution, it is not proved beyond reasonable doubt that how the injuries were sustained by accused persons on one side and PW1 Sh. Manish and PW2 Sh. Jagminder on the other side. There is every likelihood that due to an altercation between two groups one assaulted the FIR No. 45/2013 PS Saket Page- 27 of 29 other. Only for the fact that the grievous hurt was caused to PW1 Manish, accused persons herein alone cannot be held liable.
41. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
42. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused persons, the benefit of which accrues in their favour. They are accordingly acquitted for the offence under section 342/34 IPC and section 325/34 IPC Announced in the open Court on 16.10.2018 (POOJA TALWAR) CMM (South), Saket Courts, New Delhi FIR No. 45/2013 PS Saket Page- 28 of 29 Certified that this Judgment contains 29 pages and each page is signed by me.
(POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
FIR No. 45/2013 PS Saket Page- 29 of 29