Delhi District Court
State vs . Rajeev Kumar & Ors. on 3 January, 2023
IN THE COURT OF SH. MAYANK AGGARWAL METROPOLITAN
MAGISTRATE : 09 (CENTRAL)
TIS HAZARI COURTS, NEW DELHI
FIR No. 51/2011
PS: Lahori Gate
U/s 452/324/34 IPC.
State vs. Rajeev Kumar & Ors.
JUDGMENT
1. Case No. : 300340/2016
2. Date of Commission of the offence : 26/04/2011
3. The name of the complainant : Sh. Nipeksh Sharma
4. Name & address of accused : 1. Rajeev Kumar
R/o 2078, Katra Gokulshah Sita
Ram Bazar, Delhi.
2. Pawan Kumar
R/o 2078, Katra Gokulshah Sita
Ram Bazar, Delhi.
3. Ram
R/o 2078, Katra Gokulshah Sita
Ram Bazar, Delhi.
5. Date of institution of FIR : 27/04/2011
6. Date of receipt of this case : 27/07/2011
7. The plea of the accused : Pleaded not guilty
8. Date of reserving the case for order : 18/11/2022
9. Date of Decision : 03.01.2023
10. Final order : ACQUITTAL
BRIEF FACTS
1. The present case emanates from FIR No 51/2011, registered at PS Lahori Gate, u/s 452/324/34 IPC upon the complaint of Sh. Nipeksh Sharma (complainant). The brief facts of the case are as follows: it is alleged that on 27/07/2011, at around 9.30 PM, while the Complainant and his father Sh. Dalip Sharma were present at there Hotel I.e Hotel Vaishno, 23, Fatehpuri Bazar, Delhi Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 1 of 15
-06, accused Rajeev came at the hotel for asking for the settlement of his account. It is alleged that accused Rajeev used to wash clothes for the hotel and on account of unsatisfactory services his contract was terminated. It is further alleged that upon requesting accused Rajeev to come and collect the dues day after, accused Rajeev firstly started using abusive language and thereafter called his two brothers I.e accused Pawan and Ram at the spot and thereafter all the three accused persons together and in furtherance of their common intention entered the hotel and hit the head of the complainant with a glass which was kept at the counter of the hotel and consequently injuries were caused to the complainant which were opined by the doctor to be simple. Lastly, it is alleged that upon apprehending the accused persons at the spot, they were handed over to the police.
2. Investigation was taken up and upon completion of investigation charge sheet was filed against all the alleged Accused persons and upon consideration of the record, cognisance was taken and all the accused persons were summoned and thereafter Charges u/s 452/324/34 IPC were framed to which all the accused persons pleaded not guilty and claimed trial. Thereafter the accused persons were put to trial and in the course of trial, Prosecution examined as many as 8(eight) witnesses and thereafter prosecution evidence was closed and on 04/03/2020 statement of the accused persons u/s 281 r/w 313 Crpc was recorded. Though it was stated by the accused persons that they wish to lead defence evidence, however vide separate statement dated 22/09/2022, the DE was closed without having led any defence evidence and matter was fixed for final arguments. Arguments were addressed by both the parties.
EVIDENCE ON RECORD
3. In order to prove the charges alleged, prosecution has examined the following witnesses namely:
PW 1 Nipeksh Sharma PW 2 HC Satish Kumar PW 3 Ct. Om Prakash PW 4 Ct. Amit (Belt No 901/N) Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 2 of 15 PW5 Dr. Aseem Taneja PW 6 Ct. Amit Kumar ( Belt No 1731/SD) PW7 Dalip Sharma PW8 SI Jagat Singh 3.1. PW-1, Nipeksh Sharma deposed that, he used to run a guest house in the name of Vashnaio at 23, Gandhi Gali, Fatehpuri, Delhi. He further deposed that accused Rajeev used to wash cloths of their guest house on contract basis and since he was not satisfied with his services, so he ended his contract. He further deposed that on 26.04.2011, at about 9:00 p.m to 9:30 p.m, accused Rajeev came at their guest house and said "Mera Hisab Kitab Kar Do", on which, he asked him to come on next day as he (PW1) was busy in some work. PW1 further deposed that accused Rajeev went outside and started using filthy language against him. PW1 further deposed that accused Rajeev made a call to someone and called his two brothers and they started talking with each other and came inside the guest house. He further deposed that the brothers of the accused Rajeev, again said, he does not know exactly whether they were brothers of the accused Rajeev or not, caught hold of him and accused Rajeev took a glass from his counter and hit it against his (PW1's) head.
PW1 further deposed that his father and the staff present there intervened and escaped him from the accused persons. He further deposed that he made a call at 100 number whereupon police official reached there and they handed over the accused persons to police. He further deposed that he put his signature at point A on his complaint EX. PW-1/A and that he was also sent for medical examination with constable Amit. PW1 further deposed that he put his signatures at point A on the personal search memos and arrest memos of the accused persons Ex. PW-1/B to Ex. PW-1/D and Ex. PW-1/E to PW-1/G and also on some documents Ex. PW-1/H. PW- 1/1 and PW-1/J at point A. The witness also correctly identified all the accused persons present in the court.
3.2. PW-2, HC Satish Kumar deposed that, on 27.04.2011 (night), he was posted as Duty officer at PS Lahori Gate and on that day, at about 12.20 night, he received a rukka from Ct. Amit sent by ASI Jagat Singh and on the basis of Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 3 of 15 which, he got registered FIR No.51/11 through computer operator and computer generated copy of FIR is Ex. PW2/A and his endorsement on rukka is Ex. PW 2/B which bears his signature at point A. 3.3. PW-3, Ct. Om Prakash deposed that, on 26.04.2011, he was posted at PS Lahori Gate and working as DD writer from 5:00 pm to 1:00 am. He further deposed that on that day, he received information on intercom through wireless operator at about 10:15pm regarding scuffle at Vaishno Hotel Wali Gali, near Gyani Faluda, near Fatehpuri via mobile no.9990083671 and he reduced this information in his own handwriting and the copy of the same was handed over to ASI Jagat Singh. PW3 produced the original register containing the relevant DD entry, photocopy of which is Ex.PW3/A. He further deposed that on the same day, at about 10:35 pm, the information was received through intercom from wireless operator that the police officer were standing at hotel Vaishno and "Koi Sunwai Nahi Kar Rahe" from mobile no.8527352522 and the said information was reduced in writing by PW3 in his own handwriting and the copy of the same was handed over to Ct. Amit for transmission of the same to ASI Jagat Singh, photocopy of which is Ex.PW3/B. PW3 produced the original register before the Court.
3.4. PW-4 Ct. Amit (Belt No 901/N) deposed that, he was posted as ct. at PS Lahori Gate and his duty hours were from 9.00 pm of 26/04/2011 to 9:00 am of 27/04/011 and that another Ct. Amit was also doing the same duty on the same time. He further deposed that on that day, the duty officer Ct. Satish had handed over to them the DD entry no.68B, but he does not remember the exact number and on his direction, they reached Vaishno Hotel, Fatehpuri. He further deposed that they both reached at near the Vaishno Hotel and found the gathering of public persons due to scuffle and met IO ASI Jagat Singh. PW4 further deposed that IO had sent the injured to the hospital with his colleague Constable, but he does not remember the name of the injured. He further deposed that IO handed over him one paper which was containing all the proceedings carried out by the IO and accordingly he came at the PS and the FIR was lodged through computer.
3.5. PW 5 Dr. Aseem Taneja deposed that, on 26.04.2011, he was posted Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 4 of 15 as a CMO at Aruna Asif Ali, Govt. Hospital, Rajpur Road, Delhi and on that day at about 11.15 pm, one patient namely Nipkesh Sharma was brought by Ct. Amit and he examined the patient and prepared his detailed MLC Ex. PW5/A bearing his signature at point A. He further deposed that he also gave final opinion about the nature of the injuries as "simple" and the kind of weapon used as "sharp". He further deposed that first aid was also given to the patient, who was further referred to Surgery OPD for further treatment.
3.6. PW 6 Ct. Amit Kumar ( Belt No 1731/SD) deposed that, in the intervening night of 26-27.04.2011, he was posted as a Constable at PS Lahori Gate and on that day at about 10.35 pm, DO concerned handed over him DD no. 69B and instructed him to hand over the aforesaid DD to ASI Jagat on the spot i.e. at Vaishno Hotel, Fatehpur Masjid. He further deposed that thereafter, he along with Ct. Amit Belt no. 901 went to the aforesaid spot and handed over the aforesaid DD to ASI Jagat/IO. He further deposed that one public person/complainant Nipeksh also met him on the spot and he alongwith aforesaid Ct. Amit had taken the complainant to Aruna Asif Hospital for his medical checkup on the instruction of the IO. PW6 further deposed that thereafter MLC of complainant was prepared in the aforesaid hospital and they returned back to the spot and handed over the MLC to the IO. He further deposed that thereafter IO had sent Ct. Amit No. 901, to the PS for the registration of the FIR.
3.7. PW7 Dalip Sharma deposed that, he used to run a hotel at Vaishno Hotel, 23, Fatehpuri Bazar, Delhi-6 and on 26.04.2011, at about 9:30 pm, he alongwith his son namely Sh. Nipeksh Sharma were present at the aforesaid hotel. He further deposed that accused Rajeev, present in the Court (correctly identified by the witness) used to wash the cloths of their hotel and they were not satisfied with the services of accused Rajeev so they had ended his contract. He further deposed that on that day, at about 9:30 pm, accused Rajeev came at his aforesaid hotel for demanding money and he replied to the accused Rajeev that he may come tomorrow for receiving the money, but accused Rajeev replied that "Muje To Aaj hi Paise Chahiye". PW7 further deposed that he replied to accused that at this moment he Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 5 of 15 had not calculated the whole due amount, so he may come tomorrow. He further deposed that thereafter, accused Rajeev went outside his hotel and started abusing him and thereafter, accused Rajeev called his two brothers namely Pawn and Ram Kumar, present before the court (correctly identified by the witness) outside his hotel. PW7 further deposed that thereafter, all aforesaid three persons namelv Rajeev, Pawan and Ram Kumar entered into his hotel and at that time his son was standing at the counter of the hotel. He further deposed that accused Pawan and Ram Kumar caught hold of his son and accused Rajeev had taken a glass from the counter and hit the broken glass on the head of his son. He further deposed that he intervened the matter and managed to rescue his son from the aforesaid accused. PW7 further deposed that he called at 100 number and after sometime, police officer reached at the spot and took his son to the hospital for his medical check up. He further deposed that IO also recorded his statement at the spot and that of his son.
3.8. PW8 SI Jagat Singh deposed that, on 26.04.2011, he was posted as a ASI at PS Lahori Gate and on that day, on receiving DD No. 68B Ex PW8/A, he reached at the spot ie Vaishno Hotel Church Mission Road, Khari Bawli, where two persons namely Nipeksh and Dilip Singh met him. He further deposed that in the meantime, two constables, whose names were Amit, reached at the spot with DD no. 69B Ex PW8/B. He further deposed that both of the persons namely Nipeksh and Dilip Singh produced accused Rajiv, Pawan and Ram (all the accused present in the Court and correctly identified). PW8 further deposed that he recorded the statement of Nipeksh Ex PW8/A bearing his signatures at point B. PW8 further deposed that Ct. Amit (2295/N) took Nipeksh to Aruna Ali Asaf Hospital for medical examination and came back at the spot and he handed over the MLC to him. He further deposed that thereafter, he prepared rukka Ex PW8/C and sent Ct Amit (901/N) for egistration of case, who came back at the spot and handed over original rukka and copy of FIR to him. PW8 further deposed that thereafter, he prepared the site plan at the instance of complainant Ex PW8/C bearing his signatures at point A. He further deposed that he interrogated the accused persons and arrested them and conducted their personal searches vide memos Ex PW1/E to PW1/G and PW1/B to PW1/T and their disclosures statements were recorded, which are Ex PW1/H to PW1/J bearing Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 6 of 15 his signatures at point A. He further deposed that he recorded the statement of witnesses, accused persons were produced in the concerned Court and thereafter challan was filed.
ARGUMENTS
4. It is argued by Ld. APP for the state that the prosecution has successfully proved its case beyond all reasonable doubts with the help of material proved on record. It is further argued by the Ld. APP that, there are enough evidences in the form of eye witness and the medical record to establish its case and has accordingly requested for conviction of the accused persons.
4.1. Per contra, it is argued by the Ld. Counsel for the Accused persons that, the prosecution has miserably failed in proving its case beyond reasonable doubt. The Ld. Counsel has further argued that, the basic ingredients of either of the offences charged are not made out in the present case. It is further argued that there are material contradictions between PW1 and PW7 as regards the events that took place on the date of the incident and as such makes the whole case of the prosecution doubtful. Accordingly, the Ld. Counsel for the accused persons has requested for acquittal of all the accused persons.
APPRAISAL
5. The case of the prosecution is that on 27/07/2011, at around 9.30 PM, while the Complainant and his father Sh. Dalip Sharma were present at there Hotel I.e Hotel Vaishno, 23, Fatehpuri Bazar, Delhi -06, accused Rajeev came at the hotel for asking for the settlement of his account. It is further alleged that upon requesting accused Rajeev to come and collect the dues day after, accused Rajeev firstly started using abusive language and thereafter called his two brothers I.e accused Pawan and Ram at the spot and thereafter all the three accused persons together and in furtherance of their common intention entered the hotel and hit the head of the complainant with a glass which was kept at the counter of the hotel and consequently injuries were caused to the complainant which were opined by the doctor to be simple.
5.1. At this stage it is worthwhile to reproduce sec 451, 452 and 324 IPC:
Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 7 of 15
451. House-trespass in order to commit offence punishable with imprisonment.--Whoever commits house-
trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
452. House-trespass after preparation for hurt, assault or wrongful restraint.--Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, of by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to in-
hale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
(emphasis supplied) Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 8 of 15 5.2. Bare perusal of the aforesaid provisions would reveal the necessary ingredients which are required to be proved in order to bring home the charge. As for sec 324 IPC the sin-qua-non condition in order to sustain the charge is that the alleged injury must have been caused by way of an instrument/weapon which answers to the mandate of the section. As for sec 452 IPC the necessary ingredients are, (1) commission of house trespass, (2) such commission is caused after having made preparation, (3) preparation must be for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint.
5.3. Now, as already stated, in order to attract sec 324 IPC, one of the primary condition is that weapon/equipment with which the injury is caused must answer to the requirement of sec 324 IPC, i.e to say that it must be either be any instrument used for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood. However, as per the testimony of PW1 and PW7, it is an admitted case of the prosecution that the alleged injury was caused to PW1 by using a glass which was at the counter of the hotel at the time of incident.
5.4. Needless to say that a glass is neither an instrument for shooting, stabbing & cutting nor is a corrosive substance or explosive substance or can be swallowed or can be received in blood. Thus what is to be seen is whether it qualifies as substance/instrument likely to cause death. At this stage it is pertinent to mention that to bring an offence under sec 324 IPC, the instrument must be one, not which is "liable" but which is "likely" to cause death, the instrument used must be one of which one can predicate that the probable result of its use will be by virtue of its very nature, death. It must be inherent in the nature of the instrument used that death is likely to ensue. Thus, needless to say that, as per the admitted case of the prosecution, since the alleged weapon of offence is a Glass, the same cannot be Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 9 of 15 termed as "instrument" likely to cause death and as such does not answers to any of the category of the weapons /instruments as enumerated in sec 324 IPC and therefore it is reasonable to observe that on this fact alone the charge u/s 324 IPC fails.
5.5. As regards the charge u/s 452 IPC is concerned, preparation is the genesis of the offence u/s 452 IPC. The phraseology of sec 452 IPC is eloquent enough to show that not only mere house trespass, but house trespass preceded by preparation by the accused for causing hurt to any person or for assaulting any person etc brings the offender to the fold of sec 452 IPC. To sustain conviction u/s 452 IPC, there must be clear evidence of preparation for causing hurt. The fact that a person enters another man's house and commits an assault does not necessarily supposes such preparation. For sec 452 IPC, it is necessary to prove that the dominant intention of the accused was to cause hurt while committing the house trespass and the same was committed after making preparation for causing hurt or for assaulting etc. Where there is no definitive evidence to the effect that the accused had come armed when he entered the dwelling house of the complainant, it cannot be reasonably said that he had entered the dwelling house after having made preparation for causing hurt etc. 5.6. At this stage it is pertinent mention that, the term "preparation" has not be defined under the code. However, in common parlance it can be understood to mean deciding or arranging the means or measures necessary for the commission of an offence. Preparation is a stage next to forming of an intention. It is a step ahead towards taking such measures that ensures that the desired result gets produced. It can also be understood as a physical execution of the intent towards achievement of the desired result.
5.7. Now, coming to the facts of the present case, it is an admitted case of the prosecution that none of the alleged accused persons, while entering the hotel at the time of incident, were carrying anything with them. Neither PW1 or PW7, who are the only witnesses to the incident, have stated that the alleged accused persons at the time of the incident were armed with any thing or weapon and admittedly, the Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 10 of 15 injury caused to PW1/Complainant was allegedly caused by using a glass which was kept at the counter of the hotel.
5.8. Thus, in the present case apart from the fact that accused Rajeev called his brothers I.e co-accused persons at the spot and thereafter all three went inside the hotel there is no other evidence in this regard. Thus the question that needs to be answered is that whether the act of calling of co-accused by accused Rajeev at the spot and thereafter going inside the hotel and assaulting the complainant/PW1 would amount to preparation or not.
5.9. It is a settled position of law that common intention can be formed even at a spur of a moment at the spot itself. There is no requirement of law that the common intention for the purpose of sec 34 IPC shall be formed separately before hand. Let us compare the present situation with a case where 3 persons after having formed their common intention beforehand to cause hurt to one person X, leave from their place towards the house of X and thereafter enters the house and execute their intent by causing simple injury to X. In the present example, admittedly, house trespass is committed by the said accused persons as the entry into the house of X was committed with the dominant intent to cause hurt (which is an offence punishable with imprisonment). Thus all the necessary ingredients of sec 451 are made out and accordingly charge u/s 451 read with 34 IPC shall be made out. As oppose to this, if it is provided, that either all or any of the accused person were armed with any thing or material, then it would amount to preparation and sec 452 IPC shall be made out. As the accused persons have gone a step ahead of forming the common intention and have taken steps/ done preparation for executing their common intent.
5.10. Similarly, in the present case, as per the material on record, even if accepted in its entirety, there is no such evidence to prove preparation on the part of the accused persons. As per the testimony of PW1 and PW7, the fact of assembly of all the three accused persons at the spot and thereafter the act of going inside together under present circumstances cannot be said to be preparation as is intended by sec 452 IPC. Thus, in the considered opinion of this Court, as there is no Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 11 of 15 evidence on record to fulfil the requirement of preparation on the part of the accused persons the charge u/s 452 IPC will not sustain.
5.11. Now, what remains to be examined is as to whether on the basis of material brought on record by the prosecution, whether the accused persons can be held liable for having committed any minor offence in terms of sec 222 Crpc or not.
5.12. Admittedly, the accused persons in their statement u/s 313 Crpc have not denied the presence of PW1 and PW7 at the spot, they have also not denied the presence of all three accused persons at the spot, they have also not disputed the fact that a dispute arose between the parties herein on account on of non payment of dues of accused persons despite asking, however, their version is that they have been falsely implicated in the present case and infact they were the ones who were beaten up by the complainants and accordingly made the two PCR calls.
5.13. Now, as per the evidence, PW1 and PW7 have testified that pursuant to the accused persons hitting PW1, PCR call was made by them and thereafter PW8 (IO/SI Jagat Singh) came at the spot and the accused persons were handed over by PW1 and PW7 to PW8 and thereafter PW8 initiated the proceedings and recorded the statement of PW1 and forwarded PW1 to hospital for medical examination. The said factual narration is reiterated by PW8 as well. Thus, it is apparent, that neither PW1 or PW7 have made any allegation of any in action on the part of the police officials and as per their respective testimonies, upon arrival of PW8, immediately the accused persons were handed over to the IO/PW8. Also, neither PW1 or PW7 have testified that multiple PCR calls were made by either of them at the time of the incident.
5.14. Further PW8/IO has testified that he reached the spot within 10 minutes of receiving Ex. PW8/A (DD Entry 68B) which was recorded at 10:15 PM. In such factual background, it remains unexplained as to who and how got Ex. PW8/B (DD Entry 69B) recorded at 10:35 pm, which provides that police is present at the spot but not taking any action, more so when it is an admitted case of the prosecution that no public person or staff member of the complainant were either present at the spot Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 12 of 15 or aware about the incident.
5.15. Logically speaking, if case of the prosecution as has been stated by PW1,7 and 8 is to be believed, then, since immediate action was taken by the Police upon the PCR call by the complainant, there is no reason for PW1 and 7 to make the second call vide which Ex. PW8/B got recorded (DD entry 69B), moreover no such complaint of any inaction on the part of the police has been alleged by either PW1 and 7 in their respective testimonies and neither PW1 to PW7 have testified that multiple PCR calls were made by either of them at the time of incident. Likewise, as per the case of the prosecution since accused persons were immediately handed over by PW1 and 7 to PW8, the accused persons were also not having an opportunity or occasion to make a call that too after 10 minutes of reaching of the IO at the spot and already having initiated proceedings. Thus, the question that arises in the mind of this Court is how and under what circumstances and by whom the second PCR Call was made which led to recording of DD Entry 69B and the only explanation that is available is the defence version of the accused u/s 313 Crpc, that the PCR call was made by the accused persons on account of being beaten by the Complainants. Accordingly, in the absence of any cogent and logical explanation on the part of the prosecution in respect of Ex. PW8/B (DD Entry 69B), the whole case of the prosecution comes under the cloud of reasonable doubt and explanation offered by the accused persons appears to be plausible. Thus, this fact in itself creates considerable doubt in the mind of this court as regards the whole case as has been set up by the prosecution and lends weight to the accused version.
5.16. Further, PW1/Complainant and PW7 are at considerable variance as regards the chain of events that allegedly took place at the date of the incident. As per PW1, accused Rajeev upon coming to the hotel requested him to clear the dues, whereupon PW1 requested him to come day after as PW1 was busy in doing some other work. It is further stated by PW1 that when PW1 was assaulted by the alleged accused persons , PW7 and the staff of the hotel intervened and saved PW1 and lastly it is stated by PW1 that certain members of the staff of the hotel were indeed present at the spot when incident took place. Whereas, PW7 has testified that, when Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 13 of 15 accused Rajeev came at the spot, then he enquired from PW7 for clearing of the dues and PW7 requested accused Rajeev to come day after as the balance due amount was not calculated by PW7. It is further testified by PW7 that when the incident took place none of the members of the staff were present at the spot to help them. Further as per PW8/IO, upon inquiry from the Hotel Staff it was revealed to the IO that none of the members of the staff were present at the spot at the time of the incident. Lastly, on one hand PW7 has testified that after the assault and before the arrival of the IO, the broken pieces of the glass were got removed by PW7 with the help of the hotel staff, whereas PW1 has shown complete ignorance to the said fact.
5.17. Thus, it is reasonable to observe that PW1 and PW7 are at considerable variance in terms of the events that allegedly took place at the spot on the date of the incident and further the discrepancies are not cosmetic but are material in nature and therefore the said witnesses cannot be solely relied upon for proving the case of the prosecution and since apart from PW1and PW7 there is no other witness to the incident nor there is any other material in support of the prosecution to prove its case, since all the remaining witness are formal in nature and are rather witness to the role played by them in the investigation, the prosecution cannot be said to have discharged its obligation of proving its case beyond reasonable doubt and the benefit of the same shall be given to the accused.
5.18. At this stage, it is pertinent to remember that, that the cardinal principle of criminal jurisprudence is that an accused is presumed to be innocent until proven guilty and the burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt by bringing on record reliable and credible evidence. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond reasonable doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. It is for the prosecution to travel the entire distance from "may have" to "must have" by bringing on record reliable and cogent material. However, in the present case as has been already highlighted, the prosecution has miserably failed to discharge its burden and prove Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 14 of 15 its case beyond reasonable doubt.
FINAL ORDER
6. In view of the aforesaid discussion, this Court is of the considered opinion, that the prosecution has failed to prove the charges u/s 452/324/34 IPC beyond all reasonable doubts against accused Rajeev, Pawan and Ram. Accordingly, accused Rajeev, Pawan and Ram., are acquitted of the charges u/s 452/324/34 IPC.
(Announced in open Court on 3rd of January, 2023 ) (MAYANK AGGARWAL) MM-09/Central/THC The judgment contains 15 pages and all the pages bears my signatures.
(MAYANK AGGARWAL) MM-09/Central/THC Cr. Case no. 300340/2016 FIR No. 51/2011 PS Lahori Gate State Vs Rajeev Kr. & ors. 15 of 15