Delhi District Court
State vs . Safiq Ansari on 21 December, 2019
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.112/13
PS Timarpur
State Vs. Safiq Ansari
U/s 279/338 IPC
CNR No. DLCT-02-001718/14
CIS No.291321/16
JUDGMENT
(a) Sr. No. of the Case 291321/16
(b) Date of offence 05.05.2013
(c) Complainant HC Udham Singh, No. 274/N, PIS No. 28890311
(d) Accused Safiq Ansari S/o. Mohd. Kasim, R/o. House No. A-
4/110, New Kondli, New Delhi.
(e) Offence 279/338 IPC.
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 10.03.2014
(i) Date when judgment was 21.12.2019
reserved
(j) Date of judgment 21.12.2019
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 1 of 20
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused Safiq Ansari for the offence U/s 279/338 IPC.
2. It is the case of the prosecution that on 05.05.2013, at about 9:00 am, at Wazirabad Fly Over, near majnu ka tila, Delhi, accused was found driving vehicle TATA ACS bearing registration No. DL-1LM-9785 in rash and negligent manner so as to endanger human life and public safety and while driving the aforesaid vehicle in the aforesaid manner struck the same against the complainant S.S. Negi causing grievous injuries upon his person and thereby committed an offence under Section 279/338 IPC.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Shafiq Ansari.
4. Thereafter, charge under Section 279/338 IPC was framed against the accused Shafiq Ansari vide order dated 28.05.2015 passed by Ld. Predecessor to which he pleaded not guilty and claimed trial.
5. It is pertinent to mention here that PW/Complainant/S.S. Negi dropped from the list of witnesses vide order dated 11.01.2018 passed by Ld. Predecessor as he expired during the pendency of the case.
6. Thereafter, matter was fixed for PE.
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 2 of 20 PROSECUTION EVIDENCE
7. In order to prove the guilt of the accused, prosecution examined as many as 11 witnesses.
8. PW-1 is HC Dinesh, who deposed that in the intervening night of 4- 5.05.2013, he was posted as Duty Officer, that he made a DD entry of departure of HC Udham Singh vide DD No. 6B from police station to patrolling at beat number 4, Chunng Basti, that DD No. 6B is Ex. PW-1/A (OSR).
9. PW-2 is ASI Gajender Tyagi, wh deposed that on 05.05.2013, he received a PCR call regarding accident and he shared the information vide DD No 14-A which is Ex. PW-2/A. He further deposed that on the same day, he registered the FIR Ex. PW-2/B and made endorsement on rukka Ex. PW-2/C.
10. PW-3 is ASI Udham Singh, who deposed that on 05.05.2013, he was present at Taxi Stand of Tibbati colony and noticed one D Van Tata ACE bearing no. DL-1LM-9785 was coming from Wazirbad Flyover and going towards Majnu Ka Tila and the driver of the aforesaid vehicle hit against one pedestrian and thereafter, driver stopped his offending vehicle and in the meantime, he also hurried towards the injured who was lying on the road, that he apprehended the accused driver at the spot, that he along with accused driver took the injured into his offending van and shifted him to the trauma centre and on inquiry he came to know that the name of driver was Shafiq Ansari, that he noticed one slip of paper in the pocket of injured from which he found there was prescription of doctor along with his name as S.S. Negi mentioned, that when he got admitted him in the trauma centre, he was unconscious, that IO of the present case namely FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 3 of 20 SI Sombir along with one Ct. Vishram came at the trauma centre, that SI Sombir collected MLC of injured and he also handed over the accused to him, that he along with accused and SI Sombir with Ct. Vishram went to the spot, that SI Sombir recorded his statement Ex. PW-3/A and prepared tehrir and same is handed over to Ct. Vishram for registering the FIR, that Ct. Vishram left for PS and after sometime, came back at the spot along with copy of FIR and original tehrir and handed over to IO, that IO inquired about the said incident from public persons but they did not disclose their identity and refused to join the investigation, that IO prepared site plan at his instance Ex. PW-3/B, that IO seized the offending vehicle vide seizure memo Ex. PW-3/C, that IO seized the documents with regard to offending vehicle i.e. RC, fitness certificate, insurance and also seized the driving license of accused and prepared seizure memo Ex. PW-3/D, that IO arrested the accused and conducted his personal search vide memos Ex. PW-3/E and Ex. PW-3/F, that they returned to the PS and case property was deposited in the Malkhana by IO, that the accident had occurred due to the fault of accused driver as he was driving the offending vehicle in rash and negligent manner and caused the accident, that photographs of case property is Ex. P-1 (colly).
11. In the cross examination, PW-3 deposed that there was no place for sitting, that in their routine they used to do patrolling and in intervals they used to rest at some points by standing here and there, that there was no police booth of beat no. 4, that he was patrolling on foot as no motorcycle was provided to him, that he was alone, that his duty started at around 3:00 am and he do not remember about the departure entry at PS, that he do not know whether IO has collected any DD entry of his departure from PS or not. He denied that he was not present at beat no. 4 that is why there is no record pertaining to his duty. He further deposed that he do not know whether there was any CCTV camera installed at the taxi stand tibbati colony or nearby places. He admitted that there were many FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 4 of 20 public persons present at taxi stand. He also deposed that the incident happened at one side road. He admitted that accused and he brought the injured to the trauma centre and admitted him there. He denied that injured was drunk and was lying on the road when accused was passing, that there was liquor shop near the spot. He admitted that name of tibbati colony was also known as Chhan Colony. He denied that accused only stopped his vehicle to help theinjured who was already lying on the road, that when accused was helping the injured with help of pubic persons to bring him in his vehicle, he (ASI Udham Singh) came there and wrongly implicated the accused in this case. He further deposed that he did not inform at PS about the said incident and he do not know how the IO of the present case got this information. He denied that injured was conscious when he got admitted him in the trauma centre, that IO intentionally did not record his statement. He further deposed that injured was not examined in his presence, that after got admitted the injured, he never saw him or met him. He denied that accused never caused this incident but only helped the injured who was already lying on the road in drunken condition and helped him to get him in his car. He also deposed that he had not given the paper which was taken from the pocket of injured to the IO. He denied that he is deposing falsely.
12. PW-4 is Sh. Arvinder Singh (Automobile, Mechanical Expert), who deposed that on 07.05.2013, on the request of SI Sombir, he mechanically inspected one TATA Ace D van bearing no. DL-1LM-9785 vide his report Ex. PW-4/A.
13. In the cross examination, PW-4 deposed that he has examined 5-6 thousands vehicle till date, that he had shown his all certificates to the IO regarding his qualification. He denied that he is not a qualified mechanical expert nor he has handed over the documents to the IO. He denied that he has filed wrong and fabricated report Ex. PW-4/A. FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 5 of 20
14. PW-5 is Fumman Singh, who deposed that he do not remember the exact date but in the year 2013 and even he do not remember the time but it was day time, that he was going towards airport from majnu ka tila and when he reached near Tibbati colony outer ring road, he saw public persons gathered there, that he came to know that one accident has already been occurred and he made a call at 100 number, thereafter, he left for his home, that he is not the eye witness of accident. He further deposed that he do not remember the date. He denied that date of the accident was 05.05.2013.
15. In the cross examination, PW-5 deposed that he do not know anything about the present case.
16. PW-6 is Dr. Amit Gupta, who deposed that on 05.05.2013, he he medico legally examined one patient namely S.S. Negi who was brought to the hospital with alleged history of RTA, that he had medically examined the patient and prepared the MLC No. 164172 Ex. PW-6/A and he further referred the patient to Ortho and General Surgery, Neuro Surgery and ENT.
17. In the cross examination, PW-6 deposed that, when he examined the patient, he was conscious but does not remember the incident, that he cannot tell as to how many days patient remained admitted in the hospital, that he only examined the patient once, that as per the MLC, there were two injuries except others on eye-brow and on chin of the patient, that he cannot say, when patient recollect his memory.
18. PW-7 is Anil Kumar, who brought summoned record pertaining to MLC NO. 164172/3 dated 05.05.2013 pertaining to patient S.S. Negi, that the final opinion in the said MLC has been given by Dr. Kirti who has left the FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 6 of 20 services of the hospital and whose whereabouts are not available in the hospital record, that MLC is Ex. PW-6/A, that he identified the signature of Dr. Kirti on the basis of record available in the hospital, that opinion on the MLC regarding nature of injuries suffered by the patient has been given by Dr. Kirti, that the opinion on the aforesaid MLC is Ex. PW-6/B which is grievous, that he was authorized by medical officer MRD, Dr. Vidhan of Sushruta Trauma Centre vide endorsement on summons Ex. PW-7/A.
19. In the cross examination, PW-7 deposed that he do not have any personal knowledge regarding present case, that he did not work with Dr. Kirti, that he do not know when Dr. Kirti left the services of the hospital.
20. PW-8 is Mohd. Rashid, who is the owner of offending vehicle bearing registration no. D-1LM-9785 (TATA ACE), deposed that in the intervening night of 04/05.05.2013, his younger brother accused Mohd. Shafiq Ansari was driving the aforesaid vehicle and took the same to Badli factory area. He further deposed that on 05.05.2013, his brother told him regarding the accident in the present case and at the time of accident, he was driving the said vehicle, that he got released his aforesaid vehicle on superdari, that he executed the superdarinama which is Ex. PW-8/A, that he identified the photographs of the vehicle as Ex. P-1 (colly).
21. PW-9 is HC Vishram Meena, who deposed that on 05.05.2013, he was posted as Constable at PS Timar Pur, that he was on emergency duty from 08:00 AM to 08:00 PM, that at about 09:12 am he received DD No. 14A, PCR call regarding accident, thereafter, he along with IO went to the spot i.e., Outer Ring Road Taxi Stand, Juvenile Observation Home from there they came to know that HC has taken an injured to Taruma Center, Civil Lines with the help of accused driver in offending vehicle, that he along with IO went to Trauma Center and IO obtained the MLC of injured, FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 7 of 20 who was declared unfit for statement by the doctor, that at hospital, HC Udham Singh was also present, who told to IO that he is the eye witness of the accident, that HC Udham Singh produced the accused driver of the offending vehicle DL1LM9785 and the name of driver Safik Ansari, that IO handed over the accused in his custody, that IO along with HC Udham Singh, he and accused Shafiq Ansari in his vehicle went to the spot, there IO recorded the statement of HC Udham Singh, that IO prepared rukka and handed over the same to him for registration of FIR, that he got registered the FIR at PS and returned to the spot along with copy of FIR and original rukka and handed over the same to IO, that IO seized the offending Tata Ace vehicle in his presence vide seizure memo Ex. PW3/C, that IO seized RC of offending vehicle, his original driving license, fitness certificate of offending vehicle and its insurance from the possession of accused driver vide memo Ex. PW3/D, that IO formally arrested accused Shafiq Ansari and also conducted his personal search vide memos Ex. PW3/E and Ex. PW3/F, that they all returned to PS, that case property was deposited in malkhana, that IO recorded the supplementary statement of HC Udham Singh, that IO recorded his statement, that four photographs was shown to the witness and witness correctly identified the case property in the photographs, that the photographs are Ex. P1 (colly).
22. In the cross examination, PW-9 deposed that Duty Officer informed IO at about 09:12 AM and he was present at PS at that time, that IO was in his room at PS, that they went at spot on motorcycle, that he do not remember the time when they reached at the spot, that public persons were present at the spot at that time and they told them that injured had been shifted to Trauma Center, that he do not know whether IO recorded the statement of any public witness at that time or not, that they remained at the spot only for some time, that he do not remember when they reached at the hospital, that during the journey from spot to hospital, IO FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 8 of 20 did not prepare any document, that IO recorded the statement of HC Udham Singh and he went to the spot after registration of FIR, that he went to PS for registration of FIR. He further deposed that he went to PS for registration of FIR from hospital, that he returned to spot after registration of FIR at about 12:00 noon and he do not remember other persons were present at the spot except IO at that time, that IO seized the offending vehicle, its documents from accused and IO also arrested accused and also conducted his personal search, that he do not remember whether anyone from the side of accused was present at that time or not, that IO passed the information of the arrest of accused to someone, however, he do not know to whom, that IO arrested the accused at the spot, that public persons were present at spot at that time, that he do not remember whether IO inquired any public person or not, that IO prepared site plan in his presence on his own, that he do not remember whether the photographs of the spot were clicked or not. He denied that he did not participate in the investigation of the present case, that no proceeding took place as stated by him at the spot, that accused has been falsely implicated in the present case, that he is deposing falsely.
23. PW-10 is Sh. Anil Kumar (Record Clerk), who deposed he has been authorized by medical officer of Sushruta Trauma Centre for deposing on behalf of Dr. Sunil, Radiologist, who has left the services and his whereabouts are not known in hospital, that he had brought the summoned of X-ray report pertaining to MLC No.164172 dated 05.05.2013 pertaining to patient S.S. Negi, that Dr. Sunil conducted the x- ray plate of the said patient and prepared report, that report along with the plate of the said patient is Ex. PW-10/A (colly), that as per report of Dr. Sunil, there was fracture in the chest of aforesaid patient.
24. PW-11 is SI Sombir, who deposed that on 05.05.2013, he was posted as FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 9 of 20 SI at PS Timarpur, that he received DD No. 14A regarding an accident, that he along with Ct. Vishram went to the spot i.e. New Camp, Tibbati Colony, near Taxi Stand, Outer Ring Road, where he came to know that injured has been shifted to Trauma Centre through some police officials, that he along with Ct. Vishram went to Trauma Centre, where he saw the MLC of injured namely S.S. Negi S/o unknown, on which doctor had opined that injured was unfit for statement, that in Trauma Centre, he also met with HC Udham Singh, who told him about the incident and handed over to him accused Shafiq Ansari, that he handed over the custody of accused Shafiq Ansari to Ct. Vishram and recorded statement of HC Udham Singh, which is Ex. PW-3/A and prepared rukka on the same, which is Ex. PW11/A, that he obtained the custody of accused Shafiq Ansari from Ct. Vishram and handed over to him the original rukka for registration of FIR, that he along with HC Udham Singh and accused went to the spot, that they had also brought the offending vehicle i.e. TATA Ace bearing registration no. DL-1LM-9785 from Trauma Centre to the spot, that he prepared the site plan at the instance of HC Udham Singh which is Ex. PW-3/B, that he also inquired from the local persons present there but they told him that they were not present there at the time of incident, that Ct. Vishram came back at the spot and handed over to him copy of FIR and original rukka, that he seized the offending vehicle bearing registration no. DL-1LM-9785 vide seizure memo Ex. PW-3/C, that he also obtained one original registration certificate of offending vehicle, original fitness certificate of the vehicle, one original SBI General Insurance Certificate and original driving license of accused and seized the same vide seizure memo Ex. PW-3/D, that he interrogated accused Shafiq Ansari and arrested him vide arrest memo Ex. PW-3/E and conducted his personal search vide personal search memo Ex. PW-3/F, that brother of the accused came at the spot and stood surety for him, that he along with staff and case property went to PS Timarpur, where case property was deposited in malkhana, that he recorded statement of FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 10 of 20 witnesses, that during investigation, he obtained the opinion of the concerned doctor on the MLC of injured, that the concerned doctor had opined that the injury sustained by the injured were grievous in nature i.e. why he added section 338 IPC in the present case, that after almost two months, injured visited PS Timarpur and he recorded his statement, that he do not remember for how many days injured remained in the hospital, that during investigation, he verified the documents handed over by the accused and came to know that the insurance certificate handed over by the accused was cancelled by concerned company due to cheque bounce, that added section 146 M.V. Act, regarding the same in the present case, that during investigation, he got conducted the mechanical inspection of the offending vehicle, that he recorded statement of witnesses and after completion of investigation, he filed the charge-sheet for judicial verdict, that he can identify the offending vehicle if shown to me. Thereafter, four photographs of the offending vehicle shown to the witness, who correctly identified the same as the photographs of the offending vehicle which was seized by him in the present case, that photographs are already Ex. P-1 (colly.).
25. In the cross examination, PW-11 deposed that he came to know about the incident through DD No. 14, that except statement of HC Udham Singh, statements of all other witnesses were recorded in PS, that he had not recorded statement of any independent public witness except the PCR caller. He voluntarily deposed that he had asked many public persons, but no one stated that he has witness incident himself. He further deposed that he obtained MLC from Trauma Centre on the same day. He denied that he neither visited Trauma Centre nor obtained MLC, that he had prepared the rukka under Section 279/337 IPC. He admitted that when he reached at the spot from PS, PW-5 Fumman Singh was not present there, that he had recorded statement of Fumman Singh in PS after many days of incident, that accused was not taken to police station.
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 11 of 20 He further deposed that brother of the accused who was owner of the vehicle was called at the spot by him, that he cannot affirm or deny the suggestion that injured was not shifted to hospital by HC Udham Singh rather he was shifted by public persons. He admitted that generally public persons are present near the taxi stand. He also deposed that he had visited the hospital many times to record the statement of injured, but injured was not fit to give statement, that he had visited hospital 2-3 times for recording statement of injured within 15 days. He denied that he had not conducted the investigation in the present case in proper manner, that accused was falsely implicated in the present case as he has taken the injured to the hospital, that he did not record any statement of any witness, that he is deposing falsely.
26. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
27. Statement of the accused Shafiq Ansari under Section 313 Cr.PC was recorded vide order dated 19.12.2019 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
28. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 12 of 20
29. Perusal of the record reveals that accused Shaifq Ansari was charged with the offence under Section 279/338 IPC.
30. Section 279 IPC stipulates that:-
"Rash driving or riding on a public way-
whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
31. Section 338 stipulates that:-
"Causing grievous hurt by act endangering life or personal safety of others- whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
32. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 13 of 20
3. That the accused was the person who was driving the vehicle at the relevant time.
33. These words i.e. "Rash" and "Negligent" have not been defined in the Indian Penal Code. However, as per Blacks Law Dictionary, 8th Edition the word 'Negligent' is characterized by the persons failure to exercise the degree of care that someone of ordinary prudence would have exercise in the same circumstances.
34. The Oxford Advanced Learner's Dictionary, 6th addition defined 'Rash' as doing something that may not be sensible without first thinking about the possible result.
35. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual.
36. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the questions as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be a sufficient considering all the circumstances of the case.
37. It is the case of the prosecution that on 05.05.2013, at about 9:00 am, at Wazirabad Fly Over, near majnu ka tila, Delhi, accused was found driving FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 14 of 20 vehicle TATA ACS bearing registration No. DL-1LM-9785 in rash and negligent manner so as to endanger human life and public safety and while driving the aforesaid vehicle in the aforesaid manner struck the same against the complainant S.S. Negi causing grievous injuries upon his person and thereby committed an offence under Section 279/338 IPC.
38. Perusal of the record reveals that injured S.S. Negi has not been examined in the case in hand as he has expired during the pendency of the trial. Accordingly, he was dropped from the list of witnesses vide order dated 11.01.2018 passed by Ld. Predecessor.
39. Perusal of the record further reveals that two star/eye witnesses namely ASI Udham Singh (PW-3) and Fumman Singh (PW-5) have been examined by the prosecution.
40. PW-5 categorically deposed that he do not know anything about the present case and he has not witnessed the accident, accordingly, he miserably failed to support the case of prosecution in toto so as to establish the guilt of the accused beyond reasonable doubt.
41. PW-3 ASI Udham Singh deposed that accident had occurred due to the fault of the accused driver as he was driving the offending vehicle in rash and negligent manner and cause the accident.
42. It is pertinent to note that PW-3 failed to disclose specifically the mode and manner in which the vehicle was being driven by accused so as to impute any kind of rashness and negligence on the part of the accused.
In the absence of specific description of mode and manner in which the vehicle was driven, it cannot be held by any stretch of imagination that accused was driving the vehicle in rash and negligent manner.
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 15 of 20
43. It is also pertinent to note that PW-3 categorically admitted that public persons were present at the spot, however, no sincere effort seems to have been made so as to join the independent public person to the investigation.
44. No plausible explanation have been given for not joining/citing other independent public witness except injured to join the investigation.
45. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
46. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 16 of 20 occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 17 of 20 recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 18 of 20 In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
47. PW-6 is Dr. Amit Gupta, who categorically deposed in his cross examination that when he examined the patient, he was conscious but does not remember the incident. Accordingly, he also failed to depose anything incriminating against accused.
48. PW-7 Anil Kumar (Record Clerk), categorically deposed in the cross examination that he do not have any personal knowledge regarding the present case. Hence, nothing incriminating came in his testimony also so as to prove the guilt of the accused beyond reasonable doubt.
49. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non examination of injured/public witness, other witnesses failed to impute any kind rashness and negligence on the part of the accused, non examining of other public witnesses, prosecution has failed to establish its case against the accused Shafiq Ansari beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and accused Shafiq Ansari stands acquitted of the offences under Section 279/338 IPC accordingly.
50. Necessary BB with surety along with latest passport size photograph and FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 19 of 20 residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
51. File be consigned to the record room after due compliance.
52. Issue notice to LRs of the deceased (who was injured in the present case) to appear before DLSA, Central on 08.01.2020 for the purpose of compensation as per mandate of judgment passed by Hon'ble High Court in Satya Prakash's Vs. State : 203 (2013) DLT 652.
53. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 08.01.2020. Digitally signed SHILPI by SHILPI JAIN Date:
Pronounced and Signed in the Open Court on 21.12.2019 JAIN 2019.12.23 17:46:08 +0530 (Shilpi Jain) MM-02(Central)/THC/Delhi 21.12.2019 FIR No. 112/13 PS Timarpur State Vs. Shafiq Ansari Page No. 20 of 20