Delhi District Court
State vs . on 22 February, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 429785/2016
Unique Case ID No. -: DLSW020054652016
FIR No. -: 669/2014
Police Station -: Chhawla
Section(s) -: 147,148,149,323,341,
34,174A IPC
In the matter of -
STATE
VS.
1.HARISH @ SONU S/o Gajraj, Village Deenpur, Gali No. 3, Near Gyan Uday Public School, New Delhi.
2. GAJRAJ @ BALE S/o Dulichand, Village Deenpur, Gali No. 3, Near Gyan Uday Public School, New Delhi.
3. VIKAS S/o Gajraj @ Bale, Village Deenpur, Gali No. 3, Near Gyan Uday Public School, New Delhi.
4. VIKRAM @ VICKY S/o Gajraj, Village Deenpur, Gali No. 3, Near Gyan Uday Public School, New Delhi.
5. ANIL KUMAR @ TEETU S/o Kartar Singh, Radha Swamy Satsang Street, Deenpur Village, New Delhi.
6. PAPPU S/o Jile Singh, Village Deenpur, Gali No. 8, Near Masjid, New Delhi .... Accused Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 1 of 21 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
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1. Name of Complainant : Ranjeet
2. Name of Accused : Harish @ Sonu & Ors.
Section Offence complained of or
3. : 147/148/149/323/341/34/174A proved of Indian Penal Code, 1860
4. Plea of Accused : Not Guilty
5. Date of commission of offence : 26.10.2014
6. Date of Filing of case : 25.05.2016
7. Date of Reserving Order : 10.02.2021
8. Date of Pronouncement : 22.02.2021
9. Final Order : Acquitted Argued by -: Sh. Ajay Kumar Aggarwal, Ld. APP for the State.
Sh. Sunil Kumar, Ld. counsel for accused Pappu. Sh. Arun Singh, Ld. counsel for rest of the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 26.10.2014, information was received in the police station regarding a scuffle. When the police officials reached the place of incident, it was found that the complainant Ranjeet and accused Harish @ Sonu were under treatment at Rao Tularam Memorial Hospital. At the hospital, both the persons refused from giving any statement. Later on, the injured Ranjeet came in the police station and gave his statement that on the date Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 2 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:46:07 +0530 of incident i.e. 26.10.2014, he had gone to Chotu Ram Park for a walk.
At about 5.10 PM, as soon as he parked his motorcycle, 8-10 persons came there and attacked him. Amongst the attackers, he could identify Bala and Bala's sons namely Vicky, Vikas and Sonu. Alongwith them, their relative Pappu, Mastu and 3-4 other unidentified persons were present. Accused Vicky attacked him with a knife and rest of the accused used baseball bats to beat him. As such, it is alleged that the accused committed the offences punishable under Section 147/148/149/323/341/34 of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 669/2014 was registered at P.S. Chhawla.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused persons was filed. Accused Pappu was declared an absconder during the investigation and as such, offence under Section 174A IPC was added against him. After taking cognizance of the offence, the accused were summoned to face trial vide order dated 25.05.2016.
3. On their appearance, a copy of charge-sheet was supplied to them in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Sections 147/148/149/323/341/34 IPC was framed against the accused persons and a separate charge under Section 174A Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 3 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.02.22 14:46:12 +0530 IPC was framed against accused Pappu. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Ct. Rajesh PW 2 : Ct. Bacchu Singh PW 3 : Ranjeet PW 4 : HC Anil Kumar PW 5 : ASI Manvir PW 6 : Dr. Rakesh Kumar, CMO PW 7 : SI Rajesh (IO) PW 8 : HC Ashok Kumar DOCUMENTARY EVIDENCE Ex. PW1/A : Disclosure Statement of accused Pappu.
Ex. PW1/B : Arrest memo of accused Pappu.
Ex. PW2/A : Arrest memo of accused Anil.
Ex. PW3/A : Statement of complainant.
Ex. PW3/B : Site Plan
Ex. PW3/C : Arrest memo of accused Vikram
Ex. PW3/D : Arrest memo of accused Vikas.
Ex. PW3/E : Arrest memo of accused Gajraj.
Ex. PW3/F : Arrest memo of accused Harish.
Ex. PW4/A : DD no. 30A
Ex. PW4/B : DD no. 37A
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
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Ex. PW4/C : DD no. 38A
Ex. PW4/D : FIR
Ex. PW4/E : Endorsement on Rukka
Ex. PW5/A : Personal search memo of accused Anil.
Ex. PW5/B : Disclosure statement of accused Anil.
Ex. PW6/A : MLC of Ranjeet
Ex. PW6/B : MLC of Harish @ Sonu
Ex. PW7/A : Rukka
Ex. PW7/B : Disclosure statement of accused Harish.
Ex. PW7/C : Disclosure statement of accused Gajraj.
Ex. PW7/D : Disclosure statement of accused Vikas.
Ex. PW7/E : Disclosure statement of accused Vikram.
Ex. CW1/A : Process under Section 82 CrPC
5. Ranjeet (PW3) is the star witness of the prosecution. He deposed on oath that on 07.11.2014, at about 5.10 PM, he was jogging at Johar park, Deenpur. Suddenly, 8-10 boys of village Deenpur attacked him. He named accused Vicky, Vikas, Sonu, Pappu, Teetu and Bala as the persons involved in the commission of the crime. He stated that he did not know the name of the other persons. The witness further deposed that Vicky attempted to attack his stomach using a knife, however, he stopped him by his hand and sustained injuries. Thereafter, the other accused persons started beating him using baseball bats and dandas.
Public gathered on the spot and someone called the police at 100 number. The police took him to the hospital and came to his residence to record his statement. He identified the above-named accused persons in court Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 5 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:47:36 +0530 and stated that the local police did not take him to the place of occurrence. The witness deposed that accused Vicky and Sonu had attacked his wife about 8 months prior to the incident for which police had lodged the NCR no. 110/2014. He stated that accused Vicky is the brother-in-law (jeeja) of his wife.
5.1. In his cross examination, Ranjeet (PW3) stated that the police had not arrested anyone regarding the attack on his wife. He further stated that his statement was recorded by the local police qua this incident, at his residence at night time. He admitted that his statement was not recorded by the police in the hospital. The witness further stated that after he sustained knife injury, blood was oozing out from his hand and nose, which fell on his shirt and pajama. He admitted that he did not hand over his pajama to the police. He further deposed that although his statement was recorded on the next date of incident, the complaint was lodged only on 17.11.2014. The witness further stated that the police had not obtained his signatures on any documents when the accused persons were arrested. He deposed to the effect that accused Pappu was not arrested in his presence and the police had not joined any public witness. In his re-examination, he stated that the date of incident was 26.10.2014 and he inadvertently stated it to be 07.11.2014 in his examination-in- chief.
6. SI Rajesh (PW7) was posted on emergency duty on the date of incident alongwith Ct. Bacchu Singh. He deposed that he received a DD no. 30A regarding a scuffle and injuries at Chotu Ram Park, Deenpur Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 6 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:47:41 +0530 Johar. He reached the spot and came to know that the injured had already been shifted to Rao Tularam Hospital. After reaching the hospital, he found complainant Ranjeet and accused Harish admitted there. Both of them were fit for statement, however, they refused to give any statement to the police. Thereafter, on 17.11.2014, the complainant Ranjeet came to the Police Station and gave his statement Ex. PW3/A. He further deposed that he reached at the spot alongwith the complainant and prepared the site plan Ex. PW3/B. He also deposed regarding the investigation done in the present case till his transfer.
6.1 In his cross examination, SI Rajesh (PW7) admitted that he had not made any departure entry on 26.10.2014. He further stated that on the date of incident, he did not return to the spot after visiting the hospital. He admitted not registering a separate FIR on the basis of the statement of injured Harish. The witness also admitted that he did not record statement of any injured except injured Ranjeet on 17.11.2014 and 26.02.2015.
7. ASI Manvir (PW5) deposed on oath that the investigation in the present case was marked to him after the transfer of the first IO SI Rajesh (PW7). He has proved on record the arrest memo etc. documents. 7.1 During the cross examination, ASI Manvir (PW5) stated that he had inquired about the weapons used by the accused and he was told that the same were thrown away after commission of the offence. He further stated that he had brought the accused to the spot in search of the weapons, however, he did not remember the time of bringing the accused Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 7 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:47:46 +0530 to the spot. He further admitted that he had not recorded the statement of the complainant. He deposed that he did not remember if he had marked the departure or arrival entry for the said purpose. Regarding accused Pappu, he admitted that he had not ascertained the identification of the accused to determine if he was the same person who was involved in the offence.
8. Ct. Bacchu Singh (PW2) deposed on oath that he had gone to the place of incident alongwith SI Rajesh Kumar on 26.10.2014. No one met him at the spot and when they reached the hospital, he requested both the injured persons to give their statements, however, they refused. He also went to the house of the accused on 06.09.2015 alongwith ASI Manvir to arrest accused Anil.
8.1 During the cross examination, Ct. Bacchu Singh (PW2) stated that the blood-stained clothes were not recovered from the spot or the hospital. The fact that the injured were in the hospital was disclosed to him by some public persons, the details of whom he did not record.
9. Dr. Rakesh Kumar, CMO, RTRM Hospital (PW6) deposed on oath regarding the treatment given to the injured Ranjeet and Harish. He stated that he had opined the injuries to be simple. He has proved on record the MLCs PW6/A and PW6/B.
10. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
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CHAUDHARY Date: 2021.02.22
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STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
11. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against them, the statements of the accused were recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused Harish @ Sonu stated that he has been falsely implicated in the present case. He stated that the complainant is the brother (Sadhu) of Vikram Singh, who is his brother. He stated that the complainant had instigated wife of his brother Vikram Singh and due to which, there were disputes between them. The complainant had beaten him and his MLC was prepared in this regard. He stated that all other accused persons were falsely implicated in the present case. Rest of the accused persons stated that they have been falsely implicated in the present case and they were not present at the time of the incident. Thereafter, the accused persons except accused Pappu stated that they wished to lead D.E in the present case. However, no D.E was led and the same was closed on the statement of the accused persons.
ARGUMENTS-
12. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also have given my thoughtful consideration to the material appearing on record.
13. It has been argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 9 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:47:55 +0530 that the oral testimony of the witnesses is duly corroborated with the documents on record like the MLC etc. Further, the investigation conducted has been duly proved and the accused have failed to throw any doubt on the version of the prosecution. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, ld. counsel for the accused have argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel have argued that the whole case is fabricated and no such incident had occurred. They submit that there is an inordinate delay in filing of the present FIR. Neither the weapon of offence was recovered nor any public witnesses were joined. Further, there is material discrepancy in the testimony of the witnesses. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE-
15. The accused have been charged for the offence of rioting, causing hurt, wrongful confinement etc. in the present case. In order to bring home the guilt of the accused, the prosecution has to prove that the accused persons constituted an unlawful assembly in terms of Section 141 IPC, and then used force or violence in prosecution of the common object of such assembly. Thus, common object is the gist the said offence. Under Section 149 IPC, by virtue of constructive liability, every member of the unlawful assembly is fastened with liability for the offence committed by any other member, in the prosecution of common Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 10 of 21 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2021.02.22 14:47:59 +0530 object of such assembly. However, the member should have positive knowledge that such offence was likely to be committed. For offence under Section 323 IPC, causing of hurt by the accused, voluntarily (in terms of Section 39 IPC), has to be proved by the prosecution. For the offence under Section 341 IPC, the prosecution has to prove that the accused restricted the victim from moving in any direction in which such victim had a right to proceed. Thus, this is the evidentiary requirement to be met by the prosecution.
16. In the present case, the injuries on the victim Ranjeet are simple in nature, as per the opinion of the doctor, PW6. Ex. PW6/A is the MLC of the injured. As per the same, abrasions, lacerated wounds and one incised wound is present on the body of the injured.
DELAY IN REGISTRATION OF FIR-
17. The first and foremost objection of the ld. counsel for the accused is that there was unexplained and excessive delay in registration of the present FIR. He has contended that the whole case of the prosecution is fabricated as the injured had ample time to devise a false case. Refuting his contentions, ld. APP for the State submits that the delay has been properly explained in the present case.
18. The law with regard to effect of delay in registration of FIR is well settled. If the FIR is lodged with delay, it loses the benefit of spontaneity and the possibility of introducing an exaggerated version also arises. Refer Meharaj Singh (L/NK) vs. State of UP (1994) 5 SCC 188.Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 11 of 21 Digitally signed by
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CHAUDHARY Date: 2021.02.22
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The Hon'ble Apex Court has recently summarised the principles in State of M.P. v. Ratan Singh, (2020) 12 SCC 630, as under -:
"5. .... The courts generally will not disbelieve the version of the eyewitnesses even if there is some delay in lodging the FIR, if the versions of the eyewitnesses are reliable and trustworthy. However, the delay needs to be explained. This Court, in Apren Joseph v. State of Kerala [Apren Joseph v. State of Kerala, (1973) 3 SCC 114 : 1973 SCC (Cri) 195] , emphasised that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in memory, in cases of delay in filing the FIR it is important to assess the explanation therefore, to look for possible ulterior motives, and to assess its effect on the credibility of the prosecution version. The following observations of the Court are pertinent in this regard : (SCC pp. 120-21, para 11) "11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154 CrPC. As observed by the Privy Council in King Emperor v. Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203 : AIR 1945 PC 18 : ILR (1945) 26 Lah 1] , the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eyewitness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the FIR, therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 12 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:08 +0530 and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version."
(emphasis supplied) Therefore, in cases where there is delay in registering of the FIR, the Court should look into the reasons attributed for the delay in setting the criminal law in motion. As per the prosecution, the date of incident is 26.10.2014 and the FIR was registered on 17.11.2014, on the basis of the statement of the injured PW3, on the said date. Therefore, there is delay of 22 days in lodging of the FIR. This delay is substantial, therefore, the reasons for delay also ought to be compelling.
19. In the present case, the explanation for delay given by the prosecution suffers from contradictions and inherent weakness. Firstly, the FIR, Ex. PW4/D, has a particular space for mentioning about the reasons for delay. Point no. 8 reads, "Reason for delay in reporting by the complainant/informant". Against this point, it is written, "no delay". The prosecution has not given any explanation as to why incorrect information was recorded in the FIR. The IO SI Rajesh (PW7) stated in his deposition that on the date of incident, when he reached the hospital, he found that injured was fit for statement. However, he refused to give any statement. This fact has been corroborated by the testimony of Ct. Bacchu Singh (PW2), who was present in the hospital alongwith the IO. Thereafter, the statement of injured PW3 on 17.11.2014, Ex. PW3/A, mentions that he could not give any statement earlier as he was undergoing treatment and was in pain. Pertinently, the MLC of the Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 13 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:13 +0530 injured, Ex. PW6/A, records that the injured was conscious and oriented at the time of admission.
20. However, during the trial, injured Ranjeet (PW3) took a different stand. No reasons for delay were given by the witness in the examination-in-chief. Only in his cross examination the injured PW3 stated that even though the police had recorded the statement day after the incident, yet the FIR was registered on 17.11.2014. Later, he stated that he had not made any statement to the police on 17.11.2014. The witness PW3 has merely stated that he approached the ACP, DCP and SHO for lodging his complaint from 26.10.2014 till 17.11.2014. However, no documentary proof whatsoever has been led to substantiate this bald assertion. It is highly unlikely that a victim of a crime would remain silent if the police does not act upon his complaint for such a long time. Therefore, the testimony of the injured in not reliable.
21. Further, in his examination-in-chief, injured PW3 wrongly stated that the incident took place on 07.11.2014. It is only when the Ld. APP re-examined him that he stated that the actual date of incident was 26.10.2014. He stated that the police recorded his statement at his residence, on the next day, i.e. 27.10.2014. This is also factually incorrect as the statement Ex. PW3/A, which the witness has admitted, was made before the police on 17.11.2014. Therefore, instead of explaining the reasons for delay in the FIR, the prosecution version on this account is inconsistent and hence, not reliable. The conclusion from the aforesaid discussion can only be that the present FIR is nothing but an afterthought.
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CHAUDHARY Date: 2021.02.22
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INDEPENDENT WITNESSES-
22. The second assertion of the ld. counsel for the accused is that no independent witnesses were joined by the police. He has argued that non-joining of public witnesses is fatal to the prosecution's case. On the contrary, ld. APP for the State has argued that the prosecution version cannot be disbelieved merely because majority of the witnesses are police officials.
23. Although it is true that non-joining of independent witnesses cannot be a sole ground to discard the evidence of police witnesses (Refer Appabhai vs. State of Gujarat AIR 1988 SC 696), however, evidence in every case is to be weighed in light of the peculiar facts of the case. In the present case, the injured PW3 has stated in his deposition that public witnesses had gathered on the spot and later police also arrived there. The police then took him to the hospital. However, there is no explanation as to why public witnesses were not joined by the police. It was elicited from Ct. Bacchu Singh (PW2) in his cross-examination that when they reached the spot, certain public persons informed them about the injured being taken to the hospital. He has admitted that he did not record the names or addresses of such public persons. The non-joining of public witnesses, despite availability, makes the prosecution version doubtful.
INJURIES ON THE ACCUSED-
24. Ld. counsel for the accused has next contended that the main Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 15 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:22 +0530 accused, namely Harish @ Sonu suffered injuries during the transaction, which the prosecution failed to explain. It is contended that this factor will be read against the prosecution.
25. I am in agreement with the ld. counsel for the accused. The main accused Harish @ Sonu has alleged in his statement recorded under Section 313 CrPC that the complainant gave him beatings on account of the previous dispute between both of them. He further stated that on account of such beatings, his MLC was also prepared. It is settled that once the accused has raised a defence in his statement under Section 313 CrPC, it is for the prosecution to refute the same by leading evidence. Reliance is placed on dictum laid down by the Hon'ble Supreme Court in Parminder Kaur vs. State of Punjab (2020) 8 SCC 811 in this regard. The MLC of the said accused is on record as Ex. PW6/B. As per the MLC, the accused was admitted in the hospital on the date of incident, after the complainant, with the alleged history of physical abuse. Simple injuries were found on his body. The fact that he was also injured and was found under treatment in the same hospital has been testified by the IO SI Rajesh (PW7) and Ct. Bacchu Singh (PW2). IO (PW7) has also admitted in his cross examination that no separate FIR was registered on the basis of the statement of the accused Harish @ Sonu. Therefore, the fact that the injuries on the accused were not explained by the prosecution, puts a dent in the case of the prosecution and leads to the inference that the evidence of the witnesses of the prosecution is not reliable. Reliance is placed on Babu Ram vs. State of Punjab (2008) 3 Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 16 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:29 +0530 SCC 709 in this regard.
OTHER DEFICIENCIES-
26. Apart from circumstances mentioned above, the defence of the accused persons is augmented by the other deficiencies in the case of the prosecution, which has led to the downfall of the prosecution's case. These are as follows-:
A. Non-recovery of weapon - The injured Ranjeet (PW3) in his testimony has deposed that he was attacked with knife, which accused Vicky was carrying and the other accused persons were holding baseball bats and dandas. ASI Manvir (PW5) has deposed that he brought the accused persons on the spot to search for the weapons involved in the incident. However, neither did he recall the time of bringing such accused to the spot nor the number of the departure or arrival entry made in the police station for the same. The recovery of weapons used would have been strong corroborating evidence for the prosecution. Non recovery of the same can only go in the favour of the accused persons. B. Blood-stained clothes - Another circumstance of relevance is the non-production of the blood-stained clothes of the injured. The injured (PW3) in his testimony has deposed that blood was falling on his shirt and pyjama. He stated that he reached the hospital wearing only pyjama.
However, he admitted that he did not hand over his blood-stained clothes to the police. No explanation in this regard is offered by the witness. The police official, Ct. Bacchu Singh (PW2) also admitted that the recovery Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 17 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2021.02.22 14:48:35 +0530 of blood-stained clothes was neither made from the hospital nor the spot of incident.
C. Site plan and arrest memos- The IO (PW7) deposed in his examination-in-chief that he reached the spot alongwith the complainant, where he prepared the site plan. He reiterated his version in the cross- examination wherein he stated that he had prepared the site plan at the instance of the complainant. However, this deposition is directly contradictory to the testimony of the complainant, PW3, who has categorically stated in his examination-in-chief that the local police had not taken him to the place of occurrence. However, he admitted his signatures on the site plan. Therefore, the evidence of the prosecution on this account is inconsistent and the testimony of the IO cannot be relied upon. Similarly, the injured in his deposition on one hand admitted signing the arrest memos and on the other hand also stated during his cross-examination that the police had not obtained his signature on any paper, at the time when the accused persons were arrested. It appears as if the injured had signed blank papers, which were then used by the police. As such, on a cumulative assessment of all the circumstances discussed above, the inescapable conclusion remains that the prosecution has failed to prove the ingredients of the offences beyond reasonable doubt.
SECTION 174A, IPC-
27. Apart from the main offences, accused Pappu has been charged for the offence under Section 174A IPC. According to the said Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 18 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:39 +0530 offence, failure to attend at specified time and place in compliance of a proclamation renders the person liable to be declared as an absconder. In order to prove the said offence against the accused Pappu, the prosecution has relied upon the testimony of HC Ashok (PW8) and Ct. Rajesh (PW1). It has further relied upon the process under Section 82, Ex. CW1/A.
28. At the outset, it is observed that without any complaint contemplated under Section 195 CrPC, the proceeding under Section 174A IPC is valid in terms of the law laid down by the Hon'ble High Court of Delhi in Maneesh Goomer vs. State 2012 SCC OnLine Del. 66. However, in the opinion of this Court, the prosecution has failed to prove the offence beyond reasonable doubt. Ex. CW1/A reveals that it was issued at the address, "Village Deenpur Extension, Near Masjid, Gali No. 8, Delhi". No house number is written on the said proclamation. In the report of the process server, it is stated that he went on the said address and pasted a copy of the process on the main door of the house. However, the process server has not mentioned as to what is the house number of the accused in the said street.
29. Further, ld. counsel for the accused has argued that the accused was in judicial custody at the said time. This fact has been admitted by Ct. Rajesh (PW1), who has admitted in his cross- examination that the accused Pappu was produced upon production warrants from Hisar Jail, at the time when he was arrested. Moreover, ASI Manvir (PW5) has admitted in his cross examination that he had not Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 19 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:43 +0530 identified the accused Pappu to see if he was the same person involved in the crime or not. Moreover, the process server, HC Ashok Kumar (PW8) has stated in his cross examination that he did not remember the exact address of the accused, where he executed the process under Section 82 CrPC. He further stated that he did not remember if any family member of the accused and/or any neighbour met him at the time of execution of process. As such, the prosecution has failed to prove the offence under Section 174A IPC against accused Pappu.
CONCLUSION -
30. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The accused have been successful in pointing out the deficiencies in the case of the prosecution. There is unexplained delay in registration of the FIR and the testimony of the injured and the IO is unreliable. The injuries on the accused were not explained and the defence of the accused seems plausible. Further, there was no recovery of the weapon of offence and the blood-stained clothes. In light of the above, evidence of any independent witness would have invigorated the case of the prosecution. However, no such witness was joined and this has crumbled the whole case of the prosecution.
31. Resultantly, the accused HARISH@ SONU, GAJRAJ @ BALE, VIKAS, VIKRAM @ VICKY, ANIL KUMAR @ TEETU Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 20 of 21 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.02.22 14:48:48 +0530 and PAPPU are entitled for benefit of reasonable doubt and are hereby found not guilty. They are hereby acquitted of the offences under Section 147/148/149/323/341/34 IPC. Accused PAPPU is further acquitted of the offence under Section 174A IPC.
ORDER -: ACQUITTED Pronounced in open court on 22.02.2021 in presence of accused persons.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2021.02.22
14:49:00 +0530
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi,
Note: This judgment contains 21 pages and each page has been signed by me.
Cr. Case No. 429785/2016 STATE VS. HARISH @ SONU ETC. Page 21 of 21DEV CHAUDHARY Digitally signed by DEV CHAUDHARY Date: 2021.02.22 14:48:55 +0530