Delhi District Court
Cr. Case/289915/2016 on 10 November, 2021
1 of 15
IN THE COURT OF ANURAG THAKUR
MM-02, CENTRAL, TIS HAZARI COURTS, DELHI
FIR No. 238/2015
PS: Timarpur
U/s 323/341/506/34 IPC
State v. Rishi & Ors.
CNR No. DLCT02-001727-2015
Date of institution of case: 23.07.2015
Date when judgment reserved: 27.10.2021
Date when judgment pronounced: 10.11.2021
JUDGMENT
Unique ID no. of the case : 289915/16
Date of commission of offence : 25.03.2015
Name of complainant : Jugal Kishore s/o Chiranji Lal
Name and address of accused : (I) Rishi s/o Kalu Dass
R/o N-62/106, Patrachar Jhuggi,
Timarpur, Delhi.
(II) Duli Chand s/o Kalu Dass
R/o N-62/105, Patrachar Jhuggi,
Timarpur, Delhi.
(III) Phool Chand s/o Kalu Dass
R/o N-62/128, Patrachar Jhuggi,
Timarpur, Delhi.
(IV) Chander Shekhar @ Sanju
S/o Ganga Prashad
R/o N-62/127, Patrachar Jhuggi,
Timarpur, Delhi.
(V) Mithilesh s/o Kalu Dass
R/o N-62/106, Patrachar Jhuggi,
Timarpur, Delhi.
Offence complained of : U/s 323/341/506/34 IPC
Plea of accused : Pleaded not guilty
Date of order : 10.11.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION OF THE CASE
1. Succinctly, case of prosecution is that on 25.03.2015 at 7.32 a.m. information was received from Ct. Sanjiv at PS Timarpur regarding a quarrel at Patrachar ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:22:42 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 2 of 15 Jhuggi, Timarpur. This information was entered at DD no. 10A and this DD entry was marked to SI Net Ram and Ct. Kiran Pal for inquiry. Both policemen reached at the spot and found that one Rishi s/o Kalu Dass was hurling abuses at his neighbour Jugal Kishore and also beating him up. Rishi was drunk and he also threatened Jugal Kishore with dire consequences. Rishi was arrested and taken to PS by SI Net Ram and a Kalandra u/s 107/151 Cr.P.C was prepared. On 07.04.2015 Jugal Kishore came to PS Timarpur and got his statement recorded wherein he stated that Rishi, Duli Chand, Phool Chand, Mithilesh and Sanju @ Chander Shekhar on 25.03.2015 at 7 a.m. in front of Sulabh Shochalaya, Patrachar Jhuggi, Timarpur, obstructed his way, beat him up with a danda (wooden stick) and also threatened to kill him. On the basis of this statement, the present FIR was registered u/s 323/341/506/34 IPC at PS Timarpur and the investigation of the same was entrusted to SI Yogesh.
2. Upon completion of investigation, the final report was filed against Rishi, Duli Chand, Phool Chand, Mithilesh and Sanju @ Chander Shekhar. Cognizance of offence was taken and the accused persons were summoned vide order dated 23.07.2015. Upon appearance, copies of charge sheet were supplied to the accused persons in compliance of section 207 Cr.P.C. Charge against the accused persons for offence u/s 323/341/506/34 IPC was framed on 15.11.2016 to which they pleaded not guilty and claimed trial.
3. Thereafter, the prosecution was given opportunity to prove the allegations against the accused persons. The prosecution examined eight witnesses viz. PW-1 Jugal Kishore (the complainant), PW-2 HC Sandeep Kumar (DO who registered the FIR), PW-3 ASI Dalel Singh (DO who wrote DD No. 10A dated 25.03.2015), PW-4 Ct. Shailender Singh (accompanied IO during investigation on 17.04.2015), PW-5 HC Kiran Pal (was with SI Net Ram on 25.03.2015), Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.11.10 22:23:19 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 3 of 15 PW-6 Dr. Girish Chandra Prabhat (medically examined PW-1), PW-7 Anil Kumar (Clerk, Trauma Centre deposed regarding MLCs), PW-8 SI Yogesh Kumar (IO of the case).
4. The following documents were tendered in evidence by prosecution.
Ex.PW1/A (Original statement of complainant), Ex.PW1/B (arrest memo of Rishi), Ex.PW1/C (arrest memo of Chander Shekhar @ Sanju), Ex.PW1/D (arrest memo of Mithilesh) Ex.PW1/E (arrest memo of Phool Chand), Ex.PW1/F (arrest memo of Duli Chand), Ex. PW1/G (personal search memo of Rishi), Ex.PW1/H (personal search memo of Chander Shekhar), Ex.PW1/I (personal search memo of Mithilesh), Ex.PW1/J (personal search memo of Phool Chand), Ex.PW1/K (personal search memo of Duli Chand), Ex.PW1/L (seizure memo of dolchi), Ex.PW2/A (computer generated copy of FIR), Ex.PW2/B (endorsement on rukka), Ex.PW2/C (certificate u/s 65 of Indian Evidence Act), Ex.PW3/A (DD no. 10A dated 25.03.2015), Ex.PW6/A (MLC of injured Jugal Kishore), Ex.PW8/A (original rukka) and Ex.PW.8/B (Site Plan). Ex.PA1(True copy of DD no. 14A dated 25.03.2015).
5. At this juncture, it is apposite to reproduce the testimonies of PW-1 complainant Jugal Kishore and PW-8 IO SI Yogesh Kumar in verbatim:-
PW-1 Statement of Sh. Jugal Kishore, s/o Sh. Chiranji Lal, r/o N-62/172, Patrachar Jhuggi, Timarpur, Delhi-110054.
On SA On 24.03.2015, at about 10 PM, I was returning to my home from my shop when the accused Rishi (who is present in the court and correctly identified by the witness by pointing out towards him) had beaten me near the gate of the school on the way. I made the PCR call at 100 number. PCR took me along with the accused Rishi to the police station Timarpur. The police asked me to go and assured me to look into the matter. On the next day morning, I was going to bring milk, all the accused persons present in the court today, attacked me for the reason that I made the PCR call Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.11.10 22:23:37 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 4 of 15 against them. I protect my head with the help of utensils. In the meantime, my mother came to the spot and the accused persons threatened me to beat again. I became unconscious due to beatings. PCR took me to the Trauma Center. I was discharged from the hospital on same day in the evening. Thereafter, I went to police station Timarpur and I narrated the incident. My statement was recorded and the same is Ex.PW1/A bearing my signatures at point A. The IO prepared the site plan at my instance on 07.04.2015. All the accused persons were arrested by the police in my presence vide separate memos Ex.PW1/B to Ex.PW1/K all bearing my signatures at point A respectively. All the accused persons are previously known to me. The accused persons are threatening me regularly. On 20.04.2015, I handed over the damaged utensil (dolchi) to the IO which was seized by IO vide seizure memo Ex.PW1/L bearing my signatures at point A. I can identify the case properties if shown to me. At this stage, MHCM has produced one steel dolchi without lid and which is pressed on one side having particulars of present case and same is shown to the witness. Witness has correctly identified the same after looking at the dolchi.
The same is EXP1. At this stage, witness pointed out towards accused Rishi present in the court today as accused Rishi used to threat me if I would depose against him and also threat me to file a false case against me. Accused Rishi used to threat me and the wife of accused Duli Chand used to threat me to kill. XXXXXXXXXXXX by Sh. Atul Kumar Gupta, Ld. Counsel for accused persons. I am practicing as Advocate since 2015. The address of my mother's Tea stall is Timar Pur near Bansal Sweets. Police came at 10:00 PM on 24.03.2015. I do not remember the time when I reached police station. Police recorded my statement. It is correct that I know all the accused person in the present case prior to the registration of this case as they were residing in my locality. It is correct that spot is a public place and public persons frequently pass from there. On next day I went to take milk for about 7:00 AM near spot. My mother did not come at spot on 25.03.2015. I do not know who called PCR. I do not remember the time when I alongwith my mother reached PS in the evening on 25.03.2015. I do not remember for how much time I was in police station. Police did not record statement of my mother on that day. I do not remember what papers were prepared by police in my presence. I have not signed any document.
Question: Whether police registered a kalandara under section 107/151 CrPC against accused Rishi on 25.03.2015?
Answer: I do not remember.
I showed the dolchi (utensil) on the same day, however, police took the same from ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:24:08 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 5 of 15 me later i.e., on 20.04.2015. police also recorded my statement on 07.04.2015 at 08:20 PM. Police called me on my phone. Police did not record my statement after 07.04.2015. I do not remember for how much time I remained at PS on 07.04.2015. It is wrong to suggest that police did not took dolchi from me on the first day when I showed the same to them as no such incident took place as alleged. It is wrong to suggest that no incident of fighting took place in present case. It is wrong to suggest that accused has been falsely implicated in the present case. It is wrong to suggest that I am deposing falsely.
PW-8 SI Yogesh Kumar, No. D-4591, Spl. Branch, Shahdara Zone. ON S.A. On 07.04.2015, I was posted at PS Timarpur as SI. On that day, complainant Jugal Kishore came to the PS and gave his statement which was reduced into writing by me which is already exhibited as Ex. PW.1/A bearing my signatures at point B. The complainant stated that on 24/25 March, 2015, he was wrongfully restrained and beaten by Rishi, Phool Chand, Dool Chand and Mithilesh and Chander Shekhar @ Sanju. He also told that on 25.03.2015 he was admitted to the hospital Sushurth Trauma Centre, Met Calf Road and got his MLC prepared. Thereafter, I inquired and found that the MLC was in possession of SI Net Ram and it was duly collected by me. Thereafter, I prepared the rukka which is Ex.PW8/A and got the FIR registered which is already exhibited as Ex.PW2/A. Thereafter, the copy of FIR and original rukka was handed over to me by DO. Thereafter, I recorded the statement of SI Net Ram Ct. Kiranpal. Thereafter, I took the complainant to the spot of incident and got the site plan prepared at the spot which is Ex.PW8/B bearing my signatures at point A. Thereafter, I searched for the accused but they were not found at their homes. On 16.04.2015 I alongwith complainant searched for the accused at Patrachar Jhuggi, Timarpur where accused Rishi was found. Thereafter, accused Rishi was arrested by me and got the arrest memo prepared which is already exhibited as Ex.PW1/B bearing my signatures at point B and I conducted the personal search and prepared personal search memo which is already exhibited as Ex.PW1/G bearing my signatures at point B. Thereafter, I tried to search for the DANDA by which the complainant was beaten by the accused but the same could not be found. Thereafter, I tried to search for other accused but they could not be found. Thereafter, I recorded the supplementary statement of the complainant. The accused Rishi was released by me on bail upon his furnishing the requisite sureties. On 17.04.2015, I alongwith Ct. Shailender and complainant again searched for the other accused in Patrachar ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:24:29 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 6 of 15 Jhuggi, Timarpur, where all other accused Chander Shekhar @ Sanju, Mithiles, Phool Chand and Duli Chand and I prepared the arrest memo which is already exhibited as Ex.PW1/C bearing my signatures at point C, Ex.PW1/D bearing my signatures at point C, Ex.PW1/E bearing my signatures at point C, Ex.PW1/F bearing my signatures at point C respectively. I also conducted the personal search of Chander Shekhar @ Sanju, Mithilesh, Phool Chand and Duli Chand and prepared the personal search memo which is already exhibited as Ex.PW1/H bearing my signatures at point C, Ex.PW1/I bearing my signatures at point C, Ex.PW1/J bearing my signatures at point C, Ex.PW1/K bearing my signatures at point C respectively. Thereafter, I again searched for the danda which could not be found. Thereafter, I released Chander Shekhar @ Sanju, Mithilesh, Phool Chand and Duli Chand on bail after duly furnishing sureties. Thereafter, I recorded the supplementary statement of complainant and Ct. Shailender. On 20.04.2015, I was present at PS Timarpur, complainant Jugal Kishore came to the PS and produced the dolchi which already had a dent on it and told me that this is the dolchi by which I tried to save myself while I was attacked by the accused by the danda. Thereafter, I seized the dolchi vide seizure memo which is already Ex.PW1/L bearing my signatures at point B and deposited the dolchi with the malkhana and recorded the supplementary statement of the complainant Jugal Kishore with regard to dolchi. Thereafter, I seek the opinion of the doctor on the MLC conducted of the complainant which was found to be 'simple injury' which is already Ex.PW6/A. I have seen all the five persons present in court and they are the accused in the present matter, however, I cannot specifically point out by name each and every accused. Thereafter, the chargesheet was prepared and duly submitted before the court.
XXXX by Sh. Atul Kumar, ld. Counsel for all the accused. The complainant came to the PS Timarpur on 07.04. at or about 6:30 p.m. I recorded the statements of SI Netram and Ct. Kiranpal at the PS Timarpur at 9:30 p.m. I reached the spot of incident at about 10 p.m. The spot of incident is a public place where people were passing. I remained at the spot of the incident for about half an hour. I tried to find any public witness at the spot of incident but failed to find any one. I personally searched the accused persons at their residence at about 10:30 p.m. It is correct to suggest that I did not visit the spot of incident after 07.04.2015. On 16.04.2015 I alongwith complainant went for search of other accused at about 12:30 in the afternoon. I recorded the departure time before leaving the PS. It is correct to suggest that the DD entry for departure has not been placed with the chargesheet. I recorded the supplementary statement of complainant at the spot of incident on ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:24:53 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 7 of 15 16.04.2015. I do not remember the exact address from where I arrested Rishi but it was his place of residence in Patrachar Jhuggi. I do not remember to whom I informed about the arrest of accused Rishi. On 17.04.2015 I recorded the supplementary statement of the complainant and Ct. Shailender u/s 161 Cr.P.C at about 10 a.m in the morning where the accused persons were arrested. I do not remember the exact address from where I arrested the other accused persons but it was their residence place at Patrachar Jhuggi. I remained at the place of arrest for two and an half hour. On 20.04.2015 the complainant came to PS in the evening, however, I do not remember the exact time. I did not find any person who could depose regarding the dolchi produced by the complainant. I do not remember the exact date on which the opinion on MLC was seeked from the doctor. It is correct to suggest that I knew that the complainant was student of LL.B III year. It is wrong to suggest that I am deposing falsely. It is also wrong to suggest that I am deposing at the instance of the complainant. It is wrong to suggest that the accused persons have been falsely implicated by me.
The prosecution evidence was closed on 31.03.2021. Recording of statements of accused persons concluded on 07.10.2021. During their statements u/s 313 r/w section 281 Cr.P.C the accused persons stated that they have been falsely implicated and they elected not to lead defence evidence. Final arguments in the matter were concluded on 27.10.2021.
6. Ld. APP for the State argued that the complainant had categorically testified that accused persons were the perpetrators of crime. He claimed that the deposition of complainant is unassailable and there is hardly any inconsistency in his examination-in-chief and cross-examination. He contended that other witnesses had also fully supported the case of prosecution. He adumbrated that MLC of the complainant proves the injuries caused to him and the production of dolchi during trial further fortified the case of the prosecution. He demanded that the accused persons be convicted as the case against them is proved beyond reasonable doubt. The complainant through the Ld. APP for the state placed on record written submissions and relied upon judgments rendered in Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.11.10 22:25:11 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 8 of 15 the case of Narain Singh & Ors. v. State of Haryana MANU/SC/0095/2004, Mano Dutt & Ors. v. State of U.P. MANU/SC/0159/2012 and Rinku v. The State passed by Special Judge PC Act & CBI-03, South-West District, Dwarka, Delhi on 25.11.2014 in support of the case.
7. Per-contra, ld. defence counsel submitted that there are lacunae, inconsistencies and deficiencies in the case of the prosecution. He pointed out that there is inordinate delay of 13 days in registration of FIR. He stated that the danda allegedly used to beat up the complainant was never recovered. He brought to the notice of the court that in spite of presence of public persons at the site of quarrel, no independent person was asked to join the investigation by the police. He claimed that the testimony of PW-1 is replete with contradictions and the same is not creditworthy. He submitted that all the accused persons are entitled to be acquitted as the case against them is not proved beyond reasonable doubt.
8. It is profitable to cite the relevant provisions of law involved in the present case:-
323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
341. Punishment for wrongful restraint.- Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
506. Punishment for criminal intimidation.- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life or with imprisonment for a ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:25:32 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 9 of 15 term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a terms which may extend to seven years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
In a nutshell, the prosecution has to prove that all the accused in furtherance of their common intention beat up the complainant after stopping him while he was on his way to bring milk and also threatened him. Upon consideration of the rival submissions and on perusal of material including evidence available on record, my observations in the matter are delineated hereinafter.
9. First attack on prosecution case is on ground of delay in lodging the FIR. The incident occurred on 25.03.2015 whereas the FIR was lodged on 07.04.2015 i.e. after a delay of 13 days. This delay is unexplained. Even from the attendant circumstances, the reason for such delay cannot be deciphered. In his statement made to police Ex.PW1/A, the complainant mentioned that he was undergoing treatment so he came to PS on 07.04.2015 to make his statement. This reason for going to PS after about two weeks of incident is withered down by complainant's own testimony wherein he stated that he was discharged from the hospital on the evening of 25.03.2015 itself and he also visited the PS in evening on the date of incident. Why the complainant did not make a statement for 13 days baffles this court. Moreover, the injuries mentioned in MLC of complainant are not such that they incapacitated him from going to PS to lodge the FIR. In Mukesh & Anr. v. State of NCT of Delhi & Ors. (2017) 6 SCC 1 the apex court made the following observation regarding the delay in registration of FIR:-
49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:25:51 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur
10 of 15 possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
The delay in lodging FIR is inordinate and the same is not satisfactorily explained. Hence, doubts are raised on the case adumbrated by the prosecution especially when the delay is seen in light of DD No. 14A dated 25.03.2015 of PS Timarpur.
10. The accused persons did not dispute the genuineness and preparation of DD No. 14A dated 25.03.2015 and the same was exhibited as Ex.PA1. This DD entry is the arrival entry of SI Net Ram at PS Timarpur who had come back to the PS (after conducting inquiry into DD No.10A regarding quarrel at Patrachar jhuggi which was entrusted to him). Since DD No. 14A is part of the final report so the same can be read against the prosecution, whether proved or not. Perusal of this DD entry shows that SI Net Ram came back to the PS and he brought with him accused Rishi who had been arrested u/s 107/151 Cr.P.C. From a reading of this DD entry, it is clear as noon day that only one person namely Rishi was threatening the complainant, beating him and pushing him around which was causing breach of peace in the area. There is no mention in this DD entry that other accused were present at the spot and were beating up or threatening the complainant with danda. This DD entry was made in usual course, without delay and no motive is attributable to SI Net Ram for not recording the events correctly in the DD entry. The delay in registration of FIR seen in context of DD No. 14A raises doubts about presence and participation of accused Duli Chand, Phool Chand, Chander Shekhar and Mithilesh in the alleged incident as testified by the complainant. The delay in registration of FIR seems to have resulted in embellishment and concoction. The chance of ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:26:22 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 11 of 15 false implication of accused Duli Chand, Phool Chand, Chander Shekhar and Mithilesh cannot be negated. At any rate, significant doubt has crept into the case set up by the prosecution.
11. Another confusion in the case is with regard to the seizure of dolchi (milk carrying utensil). The dolchi was seized on 20.04.2015 i.e. about after 25 days of the incident. The delay in seizing the dolchi is another ground for disbelieving the case of prosecution. The complainant deposed that the dolchi was shown by him to the IO. No reason has been given by the IO for seizing the dolchi on 20.04.2015 and not on 07.04.2015. Moreover, the IO in his testimony never mentioned that the dolchi was shown to him on the very first day. The complainant testified that he became unconscious due to beatings given by the accused persons and thereafter, he was taken to hospital by PCR van. It is not known whether the dolchi remained lying at the spot till the time the complainant came back after being discharged from hospital in evening or was the dolchi handed over to him by someone. Surprisingly, SI Net Ram did not find any dolchi at the spot while inquiring into DD No. 10A marked to him. The possession of dolchi by the complainant for such a long time after the incident gave sufficient opportunity to him to tamper with the same. The chance of fabrication of evidence cannot be ruled out.
12.The next deficiency in the case is that despite presence of public persons at the spot, no effort was made to inquire from them about the incident. The incident occurred in a thickly populated area and most of the bystanders would have been neighbours whose statements could have been easily recorded by the police. PW-1 in his examination-in-chief stated that his mother was present at the spot when he was beaten up by all accused persons but surprisingly in his cross-examination he stated that his mother was not present at the spot at the ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:26:40 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 12 of 15 time of the incident. The non-joining of independent witnesses also casts a little doubt on the story of the complainant. Even the person who made the PCR call was not examined by the IO, though his phone number would have been available and the IO could have tracked him down but the same was not done for reason best known to the IO. The benefit of aforementioned gaps, if any, go to the accused persons.
13. Except the complainant, no eye witness of the incident has been examined by the prosecution. If the accused persons have to be convicted on the basis of the sole testimony of complainant, then his testimony has to be first-rate. In the matter of Ganesan v. State Represented by its Inspector of Police Criminal Appeal No. 680 of 2020 decided on 14.10.2020, the topmost court of the land explained the meaning of first-rate or sterling quality in the following words:-
9.3 Who can be said to be a "sterling witness", has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:27:01 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 13 of 15 doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
Let us now weigh the testimony of PW-1 Jugal Kishore on the stringent standards mentioned in Ganesan (supra). The witness did not remember what papers were prepared by police in his presence on 25.03.2015. He also did not remember whether a Kalandra was prepared against accused Rishi u/s 107/151 Cr.P.C on 25.03.2015 or not. He failed to tell the time when he along with his mother went to the PS in the evening on 25.03.2015. He stated that police did not record his statement after 07.04.2015 which is contrary to record as his statements were recorded three more times i.e. twice at the time of arresting the accused persons in case and third time when the dolchi was seized. Prior to his cross-examination, the complainant never revealed that he went to the PS on 25.03.2015. This revelation further erodes the credibility of the witness. The DD entry 14A dated 25.03.2015 also dents the quality of oral evidence of ANURAG Digitally signed by ANURAG THAKUR THAKUR 22:27:37 +05'30' Date: 2021.11.10 FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 14 of 15 complainant as it casts doubt on participation of all accused but Rishi in the incident which resulted in registration of the FIR. In cross-examination spanning only a single page, the complainant gave 5 prevaricating answers. He went back on his statement made during his examination-in-chief about presence of his mother at the spot. During his examination-in-chief, PW-1 stated that due to beatings given by accused persons, he became unconscious but this statement is also not corroborated by his MLC or by testimony of PW- 5 Ct. Kiran Pal who accompanied SI Net Ram to the spot and found Rishi in a drunken state using intemperate language for complainant. The complainant had also deposed that danda (wooden stick) was used by the accused to beat him but again Ct. Kiran Pal stated nothing about use of danda by Rishi for beating up the complainant. The testimony of PW-1 is anything but of sterling quality and the same does not inspire confidence.
14. There are numerous other gaps in the case like non-examination of PCR officials by prosecution, the non recovery of danda used to beat up the complainant. The site plan does not even show the place where the dolchi was found by the complainant. It only mentions one point i.e. Mark A where the incident purportedly occurred. It is a sign of shoddy investigation and it does not aid the case of the prosecution. The MLC does show that some scuffle did happen at the spot on that day and danda may have been used to beat up the complainant but the evidence is insufficient to substantiate the case as narrated by the complainant. Even regarding the offence of criminal intimidation, the complainant had not made specific allegations against other accused except Rishi and even against Rishi, the allegation is that he used to threat him to not depose in the case otherwise he would file a false case against the complainant. This statement in itself shows that the criminal intimidation, if any, by Rishi was after the incident and not at that time. There was certainly no common ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:28:01 +05'30' FIR no. 238/15 State v. Rishi & Ors. PS Timarpur 15 of 15 intention of the accused persons to beat up the complainant. No motive is attributable to accused Duli Chand, Phool Chand, Chander Shekhar and Mithilesh for beating up the complainant. The complainant had made a PCR call against only accused Rishi on the night prior to the incident and not against the other co-accused. In the judgment of Narain Singh (supra) despite there being injuries on the person of the victim, the accused persons were acquitted as the nebulous and suspect nature of evidence of prosecution could not prove the allegations.
15.An argument was advanced by the counsel for the accused persons that a Kalandra u/s 107/151 Cr.P.C was made regarding the incident but for the same incident, the present FIR could not have been lodged. This argument does not find favour with this court as there is nothing in section 300 Cr.P.C which prohibits the making of a Kalandra u/s 107/151 Cr.P.C and registration of FIR simultaneously, for the same incident. Reliance is placed upon the judgment of Rinku (supra) in this regard. To conclude, it can be stated with certitude that the case against the accused persons has not been proved beyond reasonable doubt and accordingly, all the accused persons namely Rishi, Duli Chand, Phool Chand, Mithilesh and Chander Shekhar are acquitted of the offence u/s 323/341/506/34 IPC.
Announced in the open court on 10th November, 2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.11.10 22:28:22 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE-02 CENTRAL, TIS HAZARI COURTS, DELHI This judgment consists of 15 pages and each and every page of this judgment is signed by me.
FIR no. 238/15 State v. Rishi & Ors. PS Timarpur