Delhi District Court
State vs Shiv Prasad @ Amit Etc on 7 September, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28098/2016)
FIR No. 298/2012
Police Station Sarai Rohilla
Charge-sheet filed under Sections 323/326/308/34 IPC.
Charges framed against accused 323/34 IPC, 326/34 IPC
persons. & 308/34 IPC.
State Versus 1. Shiv Prasad @ Amit,
S/o Sh. Kailash,
R/o SK-22, Sindhora Kalan,
Chowki No. 2, PS Sarai Rohilla,
Delhi.
2. Kailash,
S/o Sh. Raja Ram,
R/o SK-22, Sindhora Kalan,
Chowki No. 2, PS Sarai Rohilla,
Delhi.
3. Sangeeta
W/o Sh. Kailash,
R/o SK-22, Sindhora Kalan,
Chowki No. 2, PS Sarai Rohilla,
Delhi.
4. Tarun @ Rinku,
S/o Sh. Dhyan Singh,
R/o H. No. 4, Sindhora Kalan,
Chowki No. 2, PS Sarai Rohilla,
Delhi.
...Accused Persons.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 1 of 37
State Vs. Shiv Prasad @ Amit & Ors.
Date of Institution of case 10.07.2013
31.08.2024 & previous
Date of Arguments dates.
Judgment reserved on 31.08.2024
Judgment pronounced on 07.09.2024
Decision Acquitted
JUDGMENT
1. Accused persons namely Shiv Prasad, Kailash, Sangeeta and Tarun @ Rinku are facing trial for the offences punishable under Sec. 323/34, 326/34 & 308/34 IPC. The prosecution story is that on 29.08.2012 at about 09:30 pm in Plot No. 5 (SK-22), Sindora Kalan, Chowki No. 2, Shakti Nagar, Delhi all the four accused persons in furtherance of their common intention attempted to commit culpable homicide by assaulting the injured Sh. Om Prakash with sharp edged object with such intention or knowledge and under such circumstances that if they had caused his death, they would have been guilty of culpable homicide not amounting to murder. Further on the abovementioned date, time and place, they all in furtherance of their common intention intentionally caused simple hurt to the persons of Mohan, Manoj and Vidyavati and further on the abovementioned date, time and place they all in furtherance of their common intention intentionally caused grievous hurt to the person of Pramod.
2. The brief facts which are borne out from the record of the case are that on 29.08.2012, on receiving DD No. 35A, Ex. PW- 12/A regarding quarrel, PW-13 IO/SI Praveen Mann along PW-6 Ct. Ankur went to the spot of incident i.e. Plot No. SK-5, FIR No. 298/2012, PS: Sarai Rohilla Page no. 2 of 37 State Vs. Shiv Prasad @ Amit & Ors.
Sindhora Kalan, Chowki No. 2 where quarrel was going on between two groups and many persons had sustained injuries. Thereafter IO sent the injured persons to Hindu Rao Hospital through CATs ambulance. Thereafter PW-13 IO/SI Praveen Mann alongwith PW-6 Ct. Ankur reached Hindu Rao Hospital and collected the MLCs of injured persons. He recorded the statement of one of the injured person namely Sh. Pramod and on the basis of statement of injured Pramod, IO prepared rukka and got the present FIR registered under Sec. 323/324/34 IPC at the Police Station through Ct. Ankur. Thereafter IO/SI Praveen Mann searched for accused persons but no clue was found.
3. On 10.09.2012, IO prepared site plan, Ex. PW-13/B at instance of Complainant/injured Pramod. Thereafter, IO SI/Praveen Mann arrested accused Kailash, Shiv Prasad @ Amit and Sangeeta, conducted their personal search and recorded their disclosure statement. IO also prepared pointing out memo of spot of incident at instance of accused Shiv Prasad @ Amit. IO also arrested accused Tarun on 05.12.2012. During investigation, IO collected the result regarding the nature of injury on the MLC of complainant/injured Pramod which was opined to be as 'sharp grievous' in nature. IO also collected the MLC of injured Om Prakash in which the nature of injury was opined to be 'blunt grievous' and thereafter Sec. 326 IPC & Sec. 308 IPC were added in the present case. Thereafter, IO re-arrested the accused persons in this case and after the completion of investigation, IO prepared the charge-sheet and filed the same in Court through SHO. It is pertinent to mention that a cross FIR bearing FIR FIR No. 298/2012, PS: Sarai Rohilla Page no. 3 of 37 State Vs. Shiv Prasad @ Amit & Ors.
298/2009, PS Sarai Rohilla was also got registered by accused Sangeeta against the complainant and his family members.
4. Vide order dated 0 4 . 0 6 . 2 0 1 3 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to the accused persons namely Shiv Prasad @ Amit, Kailash & Sangeeta and vide order dated 26.06.2013, copy of charge-sheet under Sec. 207 Cr.PC was supplied to accused Tarun @ Rinku by the order of Ld. MM. Vide order dated 03.07.2013, the present case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 09.09.2013, the Ld. Predecessor Court was pleased to frame charges under Sec. 323/34 IPC, 326/34 IPC & 308/34 IPC against all the four accused persons to which they pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 15 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs:-
7. PW-1 Sh. Parmod is the complainant as well as one of the injured in the present case. He deposed that he did not recollect the date of incident but about one year ago at about 08:30 pm he came out in the gali and saw Rinku, Gulab Singh, Amit, Kailash and other were present there. He further deposed that on seeing him accused Amit threw his cycle and thereafter Rinku, Gulab Singh, Amit, Kailash and Sangeeta attacked him. He further deposed that his parents nemely Sh. Om Prakash and Smt. Vidya Wati also came out who were also beaten by the abovesaid FIR No. 298/2012, PS: Sarai Rohilla Page no. 4 of 37 State Vs. Shiv Prasad @ Amit & Ors.
accused persons. He also deposed that accused Rinku was having iron rod and accused persons also gave beatings to his uncle Sh. Mohan and he sustained injury on his back. He also deposed that he cannot tell as to what weapon was carried out by which of the accused persons as the incident had taken place immediately. He also deposed that accused party had enmity with his family. In his cross-examination he deposed that firstly he noticed that Amit and Rinku pounced upon him along with three/four other boys and out of those three/four boys, some were from the locality and some were from outside. He also deposed that the said two accused persons did not talk to him and immediately started beating him. He further deposed that firstly Amit and thereafter Rinku caught him and Rinku had a weapon in the form of a Sariya at the said time. He also deposed that Amit did not have any weapon in his hand till the other three persons had not hit him. He also deposed that his house was ancestral and his father had six brothers. He also deposed that his father was also beaten by Rinku who had rod in his hand and his father was hit by the rod first and not him. He also deposed that he did not get unconscious. He denied the suggestion that they had illegally grabbed the room of his uncle Ram Singh. He deposed that he was not drunk at the time of incident and he had not called the PCR. He denied the suggestion that he had beaten her Chachi Sangeeta on the said day. He also deposed that his statement was recorded in the hospital and no other document was prepared in his presence by the Police. He denied the suggestion that he was not hit by any weapon by Rinku and he was implicating Rinku FIR No. 298/2012, PS: Sarai Rohilla Page no. 5 of 37 State Vs. Shiv Prasad @ Amit & Ors.
only to exhonorate himself as he had beaten his Chachi Sangeeta. He also denied the suggestion that he had falsely implicated the accused persons in the present case as they were having property dispute with them.
8. PW-2 Sh. Om Prakash is one of the injured and father of complainant/PW-1 Sh. Pramod. He deposed that he did not recollect the date of incident due to head injury but about one year ago, accused persons called other boys to beat his family. He further deposed that accused Rinku gave rod blows on his head from the back side. He also deposed that accused Sangeeta and Kailash caught hold him and gave beatings to him. He further deposed that accused Amit had also caused injury on his person but he cannot tell the kind of weapon but it was made of iron. He further deposed that his wife also received head injury and his brother Mohan sustained injury on his back side in the incident. The witness was cross-examined at lenght on behalf of accused persons. In his cross-examination he deposed that all the family member including him were present in his house on the day of incident in question. He also deposed that he had made call at 100 number and his brother also called at 100 number. He also deposed that there were 10-15 people in the gali when he reached there. He also deposed that he had seen that Police was there and he showed them the paper but immediately the accused persons started beating him. He also deposed that all accused persons were carrying danda and sariya and he had not seen his son Pramod at the place of incident. He also deposed that he did not FIR No. 298/2012, PS: Sarai Rohilla Page no. 6 of 37 State Vs. Shiv Prasad @ Amit & Ors.
know if Vidyawati, Manoj and Mohan were beaten by accused persons or not. He denied the suggestion that he and his brothers Kailash and others were having property dispute with each other. He denied the suggestion that at the time of incident, he had attacked Sangeeta with some sharp object i.e. knife etc. He admitted that he was facing criminal trial in a case pending before a different court. This witness was re-examined by Ld. Addl. PP for the State in which he admitted that at about 09:30 pm, he heard abuses coming from outside his house and on hearing the abuses, he along with his brother Mohan, wife Vidyawati and son Manoj came out. He denied the suggestion that when he came outside, he saw that accused Amit along with his friends was beating his son Pramod or that blood was ozzing out from the hand of Pramod. This witness was confronted with his statement recorded under Sec. 161 Cr.PC.
9. PW-3 HC Ratan Singh, is the Duty Officer who proved copy of FIR No. 298/2012, Ex. PW-3/A and certificate under Sec. 65B of The Indian Evidence Act, Ex. PW-3/B. He also proved endorsement, Ex. PW-1/A on rukka. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
10. PW-4 Smt. Vidyawati is the mother of injured/complainant Pramod. She deposed that on 29.08.2012 at about 09:00-09:30 pm, she heard noise and when she came out, she saw that all the accused persons along with other persons were beating his son. She further deposed that her husband came to save but they also FIR No. 298/2012, PS: Sarai Rohilla Page no. 7 of 37 State Vs. Shiv Prasad @ Amit & Ors.
gave beatings to her husband. She further deposed that she tried to intervene the matter in which she also received injuries which was caused by accused Sangeeta. She also deposed that she cannot tell as to what kind of weapon was used by accused Sangeeta. In her cross-examination, she deposed that she heard screaming sounds from the gali and she alongwith her husband ran towards the gali. She also deposed that Pramod had not called her but was screaming as he had been caught by the accused persons. She admitted that there were about 25-30 people present at the spot and Amit and his friends were beating Pramod. She further deposed that thereafter Sangeeta and Kailash came at the spot and she and her husband were empty handed and Sangeeta gave beatings to her. She denied the suggestion that Pramod attacked at Sangeeta with any sharp weapon. She also deposed that no case was lodged by Sangeeta on the same day against her son. She denied the suggestion that they want to grab the share of accused persons. She also denied the suggestion that accused Rinku was known to accused Kailash and Amit therefore they had falsely implicated Rinku in this case.
11. PW-5 HC Sachin Kumar, deposed that on 10.09.2012 on pointing out of complainant Pramod @ Pappu Bhaiya, IO arrested accused Kailash at PS Sarai Rohilla. He proved arrest memo and personal search memo of accused Kailash as Ex. PW- 5/A & Ex. PW-5/B. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
12. PW-6 Ct. Ankur, deposed that on 29.08.2012, on receiving FIR No. 298/2012, PS: Sarai Rohilla Page no. 8 of 37 State Vs. Shiv Prasad @ Amit & Ors.
DD No. 35A, he along with IO/SI Praveen Mann reached at the spot of incident i.e. SK-5, Sindhora Kalan where crowd had gathered and quarrel was going on between two groups. He further deposed that SI Praveen informed police station to send more forces to control the situation and the matter was pacified with the help of staff and PCR officials and injured were sent to Hindu Rao Hospital. He further deposed that he alongwith SI Praveen wen to Hindu Rao Hospital and collected the MLC of Pramod and SI Praveen recorded his statement. He further deposed that on the basis of statement of injured Pramod, SI Praveen prepared rukka and handed over the same to him to get the present FIR registered at PS. He further deposed that he got the FIR registered at PS through Duty Officer and handed over the copy of FIR and original rukka to SI Praveen. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
13. PW-7 Sh. Mohan Kumar, is uncle of complainant Pramod as well as one of the injured. He deposed that on 29.08.2012 at about 09:30 pm, he heard noise and came out and saw that the accused persons namely Amit, Kailash and Sangeeta were giving beating to Pramod, Manoj and Om Prakash. He further deposed that when he pacified the matter before arrival of the police, he also sustained injuries on his head and other parts of his body. He further deposed that when Om Prakash was putting the case file before the police official, Kailash reached there and inflicted a danda blow on the head of Om Prakash, in the presence of police.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 9 of 37 State Vs. Shiv Prasad @ Amit & Ors.
He further deposed that due to the fear, police left them and thereafter accused persons gave beatings to him, Pramod, Manoj and Om Prakash. In his cross-examination, he deposed that he was inside his house on the date and time of incident in question and at about 09:30 pm he heard voices of quarrel. He further deposed that he came out of his house and saw three accused persons namely Amit @ Shiv Prasad, Sangeeta and Kailash abusing Om Prakash and at that time, none had received any injury. He also deposed that he was not hit by Kailash and when Om Prakash was hit, Pramod and Vidyawati were present at the site. He also deposed that Rinku was not present at the time of abusing and he was present at the distance of about 10 ft. from the place of incident when the police had arrived. He also deposed that he called police at 100 number and he was taken to the hospital by PCR. He admitted that Meenakshi had lodged a case under Sec. 354 IPC bearing FIR No. 129/2013. He denied the suggestion that he was deposing falsely in this case only to take the revenge from the accused persons.
14. PW-8 HC Puran Singh, is the Duty Officer in case FIR No. 69/2012, PS Sarai Rohilla. He proved the copy FIR No. 69/2012, Ex. PW-8/A. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
15. PW-9 Ct. Parvinder, deposed that on 16.09.2012, on pointing out of complainant Sh. Pramod, IO arrested accused Sangeeta and Shiv Prasad @ Amit. He proved their arrest memos, personal search memos as Ex. PW-9/A to Ex. PW-9/D. FIR No. 298/2012, PS: Sarai Rohilla Page no. 10 of 37 State Vs. Shiv Prasad @ Amit & Ors.
He also proved the disclosure statement of accused Shiv Prasad @ Amit as Ex. PW-9/E and deposed that pursuant to disclosure his statement, IO tried to recover knife and danda but same could not be recovered and IO prepared non-recovery memo, Mark-A in this regard. In his cross-examination, he denied the suggestion that accused did not make any disclosure statement and disclosure statement was recorded by the IO as per suitability of the case.
16. PW-10 Dr. Deepak, Senior Resident, Bara Hindu Rao Hospital has proved the MLCs of injured persons namely Vidyawati, Manoj, Om Prakash and Pramod as Ex. PW-10/A to Ex. PW-10/D respectively. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
17. PW-11 Dr. Gaurav Khera, Senior Resident (Orthopedics), Bara Hindu Rao Hospital has opined that the nature of injury on person of Vidyawati and Manoj was 'simple' in nature as per their MLC Ex. PW-10/A & Ex. PW-10/B. He also opined that nature of injury of Pramod Kumar was 'grievous' in nature as per his MLC Ex. PW-10/D. This witness was also not cross- examined on behalf of accused persons despite opportunity given to them.
18. PW-12 HC Laxmi Narayan, has proved DD No. 35A dated 2908.2012 as Ex. PW-12/A. This witness was also not cross- examined on behalf of accused persons despite opportunity given to them.
19. PW-13 SI Praveen Mann, is the Investigating Officer of FIR No. 298/2012, PS: Sarai Rohilla Page no. 11 of 37 State Vs. Shiv Prasad @ Amit & Ors.
this case. He deposed that on receiving DD No. 35A, Ex. PW- 12/A he reached at the spot i.e. SK-22, Sindhora Kalan, Chowki No. 2 where quarrel was going on between two parties. He further deposed that he shifted the injured persons to Hindu Rao Hospital through CATs ambulance. He further deposed that he along with Ct. Ankur reached Hindu Rao Hospital and thereafter he collected the MLCs of injured persons and recorded statement of injured Pramod, Ex. PW-1/A. He further deposed that on the basis of statement of injured Pramod, he prepared rukka and handed over the same to Ct. Ankur for registration of FIR. He narrated about all the proceedings conducted by him during investigation. He proved the arrest memos and personal search memos of accused persons along with their disclosure statements. He also deposed that he tried to recover the weapon of offence but the same could not be recovered. He also deposed that during investigation, he collected result on nature of injury of injured persons namely Vidyawati and Manoj which were opined as 'simple' in nature whereas nature of injury of injured persons namely Om Prakash and Promod were opined as 'grievous'. He correctly identified the accused persons in the court during the trial. This witness was cross-examined at length. In his cross- examination he deposed that when he reached at the spot of incident, quarrel was going on. He also deposed that at the place of incident, PCR was already there and he along with PCR staff and Ct. Ankur tried to stop the quarrel and thereafter they stopped quarreling. He also deposed that he could not say as to who all were sent to Hindu Rao Hospital in CATs ambulance and FIR No. 298/2012, PS: Sarai Rohilla Page no. 12 of 37 State Vs. Shiv Prasad @ Amit & Ors.
PCR van. He also deposed that he did not record the statement of any public person except the family members of Pramod. He also deposed that he did not record the statement of any public person who were present at the place of incident. He also deposed that he could not say that the accused persons and complainant made any complaint to the PS regarding quarrel. He admitted that local public at the place of incident did not cooperate and help them during the investigation. He denied the suggestion that he arrested accused persons namely Sangeeta, Kailash, Shiv Prasad @ Amit and Tarun as no public person was cooperating them in investigation on the complaint of Pramod.
20. PW-14 Dr. R. N. Sahai, Surgeon, Hindu Rao Hospital has proved the MLC No. 5380/12 of injured Mohan as Ex. PW-14/A on behalf of Dr. Atul Garg. In his cross-examination he admitted that injured was not examined in front of him neither the MLC was prepared in front of him.
21. PW-15 Dr. Ankur Srivastava, Senior Resident, Hindu Rao Hospital has proved the nature of injury of injured Om Prakash as 'grievous' vide opinion Ex. PW-15/A of Dr. Kuldeep Yadav. In his cross-examination, he admitted that opinion regarding nature of injury was not given in his presence or that he had no personal knowledge of this case.
22. After closing of Prosecution Evidence, separate statements of accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused Tarun @ Rinku claimed that he was innocent and he was standing on the edge of FIR No. 298/2012, PS: Sarai Rohilla Page no. 13 of 37 State Vs. Shiv Prasad @ Amit & Ors.
his Chhaja (gallery) and had seen the fight in the gali. He further claimed that he told them it was not fair to beat a lady and separated the persons who were fighting. He further claimed that the he took Sangeeta and made her sit at a separate place and that time PCR van and ambulance arrived at the spot and took the injured to the hospital. Accused Kailash claimed that the complainant and his family members were in habit of creating nuisance. He further claimed that at times, complainant party used to steal articles of other persons and when they were stopped or given beatings, they falsely implicated them in the criminal case. Accused Shiv Prasad @ Amit claimed that he had been falsely implicated in the case and the complainant was his uncle (Tau) and the others were also family members and there was family dispute between the parties relating to property. Accused Sangeeta claimed that on 29.08.2012 she had gone to Ghanta Ghar for purchasing vegetables along with her husband and her son and when she returned at about 09:15 pm, her daughter Meenakshi started crying and told her that Pramod under influence of liquor had come and had tried to outrage her modesty. She further claimed that when she asked Pramod why he had misbehaved with her daughter, Pramod came with some sharp object and hit her on her hand and on her ear. She further claimed that on hearing the call of Pramod, his father Om Prakash and her brother-in-law Mohan @ Nirmal along with Manoj and Pintu took her to the Gali while giving beatings to her. She further claimed that she was dropped in the kichad (mud) and was given beatings. She also claimed that on hearing the FIR No. 298/2012, PS: Sarai Rohilla Page no. 14 of 37 State Vs. Shiv Prasad @ Amit & Ors.
noise, her husband and Keshav came to the spot to save her and Pramod, Mohan and Om Prakash gave beatings to them. She also claimed that one teeth of Keshav had broken on the spot and Vidyawati, Pintu and Manoj started beating her. She also claimed that Pramod. Mohand and Om Prakash gave beatings to her husband and Om Prakash slipped and suffered injury.
23. After recording of their statement under Sec. 313 Cr.P.C, accused persons have examined two witnesses in their defence. The testimony of defence witnesses have been discussed in brief as under:-
24. DW-1 Ms. Minakshi, is the daughter of accused Sangeeta and Kailash. She deposed that on 29.08.2012 when her parents Sangeeta and Kailash along with her younger brother Keshav had gone to Subzi Mandi, Ghantaghar, her Tau's son Pramod came into her house and abused her and asked her about her parents. She further deposed that Pramod was under influence of liquor and started Chhedkhani with her and when she made noise, he left the room. She further deposed that at about 09:00-09:15 pm, her mother came to house and she explained her the whole incident. She also deposed that her mother came outside the house and asked Pramod as to why he had come to their house in her absence and thereafter Pramod caused injury on the hand and ear of her mother by some pointed weapon. She also deposed that on calling of Pramod, her Tau Om Prakash, her uncle Mohan, her elder cousin Manoj and Pintu reached there and gave beatings to her mother. She also deposed that her mother raised alarm on FIR No. 298/2012, PS: Sarai Rohilla Page no. 15 of 37 State Vs. Shiv Prasad @ Amit & Ors.
which her father and her younger brother Keshav came there and her parents were also beaten up by her Tau Om Prakash, Pramod, Mohan, Manoj and Pintu. In her cross-examination, she deposed that she did not know as to how Mohan, Vidyawati and Pramod sustained injuries on their person. She denied the suggestion that they had sustained injury due to beatings given to them by her father Kailash, mother Sangeeta, brother Shiv Prasad and one Tarun. She denied the suggestion that she was creating false story in order to save the accused persons.
25. DW-2 Sh. Somvir, deposed that on 29.08.2012, he saw that Pramod, Om Prakash, Manoj, Pintu and Mohan were giving beatings to accused Sangeeta and her husband Kailash. He further deposed that Tarun Thakur @ Rinku caught Sangeeta and took her at one side and asked her to sit. He also deposed that he saw that the blood was oozing out from the hand and ear of accused Sangeeta. In his cross-examination, he deposed that he had not seen any injury on the person of Om Prakash, Vidyawati, Manoj, Pramod and Mohan. He also deposed that he did not know if they had received injuries in the said incident. He also deposed that he had seen the clothes of Sangeeta stained in mud. He also deposed that he had not seen any person causing injury to Kailash and Sangeeta. He denied the suggestion that he was deposing falsely in order to save accused persons as they had having good relations with them or that he was a planted witness.
26. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Girish Chandra, Ld. FIR No. 298/2012, PS: Sarai Rohilla Page no. 16 of 37 State Vs. Shiv Prasad @ Amit & Ors.
Counsel for accused persons namely Sangeeta, Shiv Prasad @ Amit and Kailash and Sh. Hemant Choudhary, Ld. Counsel for accused Tarun @ Rinku.
27. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-1/complainant Sh. Pramod has completely supported the case of prosecution and PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar who are the eyewitnesses and injured persons in the present case have corroborated the version of complainant. He also argued that none of the prosecution witnesses have turned hostile. He further argued that PW-10 Dr. Deepak, PW-11 Dr. Gaurav Khera, PW-14 Dr. R. N. Sahay and PW-15 Dr. Ankur Srivastava have proved the injuries and its nature on the person of injured persons. He also argued that the previous enmity showing the motive for the commission of offence has been proved by the prosecution. He further argued that the testimony of prosecution witnesses are of sterling quality and it should be relied upon. He also argued that the all the proceedings have been duly proved by the police witnesses and hence accused persons should be convicted under all the Sections of law under which charges have been framed against them.
28. Ld. Counsels for accused persons argued that prosecution has miserably failed to prove its case against the accused persons.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 17 of 37 State Vs. Shiv Prasad @ Amit & Ors.
They further argued that accused persons have been falsely implicated in the present case. To substantiate their point, they argued that PW-1/complainant Sh. Pramod is not a reliable witness as he had given a different version in a complaint given to the police but he improved his version at the time of recording of his testimony in the court. They further argued that as per MLC of PW-1/complainant Pramod, there was smell of alcohol from his mouth. They further argued that PW-2 Sh. Om Prakash deposed that when he was showing documents to the police, accused persons started beating him but no police official has corroborated the version of PW-2 Sh. Om Prakash. They further argued that the testimony of all the injured persons suffers from material contradictions. They further argued that PW-2 Sh. Om Prakash deposed that he regained consciousness in the hospital on next day but as per his MLC he was conscious and oriented at the time of his admission in the hospital. They further argued that PW-7 Sh. Mohan Kumar did not even name accused Rinku in his examination-in-chief. They further argued that the alleged dandas/sariyas have not been recovered during the investigation. They also argued that since the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, they should be acquitted under all the sections of law under which charges have been framed against them.
29. In the present case, charges under 323/34 IPC, 326/34 IPC & 308/34 IPC. have been framed against the accused persons. These Sections have been elaborated as under:-
FIR No. 298/2012, PS: Sarai Rohilla Page no. 18 of 37 State Vs. Shiv Prasad @ Amit & Ors.
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.
326. Voluntarily causing grievous hurt by dangerous weapons or means:-
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a 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, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
34. Acts done by several persons in furtherance of common intention.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 19 of 37 State Vs. Shiv Prasad @ Amit & Ors.
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.
30. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
31. PW-1/complainant Sh. Pramod deposed that on the date of incident at about 08:30 pm, he returned from his duty and after putting his tiffin at his house, he came in the gali. However, in his complaint given to the police, Ex. PW-1/A, PW-1/complainant Sh. Pramod has stated that on 28.08.2012 at about 09:30 pm after taking dinner, he came out of his house in the gali. Thus, as per his complaint given to the police, PW-1/complainant Sh. Pramod had already taken dinner while as per his testimony recorded in the court he came in the gali just after returning from his office without taking dinner. Secondly, there is difference of one hour of his reaching to the spot in his two versions i.e. statement given to the police and his testimony recorded in the court. Thus, the PW-1/complainant Sh. Pramod has imporved his version at the time of recording of his testimony in the court which raises serious doubts on his veracity.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 20 of 37 State Vs. Shiv Prasad @ Amit & Ors.
32. PW-1/complainant Sh. Pramod deposed that when he came in the gali, he saw Rinku, Gulab Singh, Amit, Kailash and others and accused Amit threw his cycle after seeing him. However, in his complaint, Ex. PW-1/A given to the police, PW-1/complainant Sh. Pramod had stated that when he came out in the gali, he saw accused Amit, Rinku and 2-3 other boys. Thus, PW-1/complainant Sh. Pramod had not stated to the police that accused Kailash was also present there and hence he has improved his version. Moreover, he had not named any person with name of Gulab Singh in his complaint given to the police. No person with the name of Gulab Singh has been charge- sheeted by the police nor any investigation has been conducted by the IO with repsect to 2-3 other persons as stated by the complainant. PW-1/complainant Sh. Pramod had not mentioned about the throwing of cycle by accused Amit in his complaint, Ex. PW-1/A given to the police. PW-1/complainant Sh. Pramod has not given any explanation with respect to his improved version. This raises serious doubts on the veracity of PW-1/complainant Sh. Pramod.
33. PW-1/complainant Sh. Pramod deposed that someone had inflicted pointed sariya blow on his head. PW-10 Dr. Deepak has proved the MLC of PW-1/complainant Sh. Pramod exhibited as Ex. PW-10/D but no injury on his head has been mentioned in his MLC. PW-11 Dr. Gaurav Khera deposed that there was fracture of right ulna bone of complainant Pramod Kumar. Thus, there are contradictions in the version of PW-1/complainant Sh. Pramod FIR No. 298/2012, PS: Sarai Rohilla Page no. 21 of 37 State Vs. Shiv Prasad @ Amit & Ors.
and the medical record and opinion qua head injury. This raises serious doubts on the veracity of PW-1/complainant Sh. Pramod.
34. PW-1/complainant Sh. Pramod in his cross-examination deposed that he was not durnk at the time of incident. However, as per MLC, Ex. PW-10/D of complainant Pramod Kumar duly proved by PW-10 Dr. Deepak there was smell of alcohol from his person which shows that the complainant Pramod was drunk at the time of incident. Since PW-1/complainant Sh. Pramod has denied of consuming of alcohol which has been duly proved by PW-10 Dr. Deepak through his MLC, the testimony of PW-1/complainant Sh. Pramod cannot be relied upon.
35. PW-1/complainant Sh. Pramod in his complaint, Ex. PW- 1/A given to the police has explained the motive of commission of offence. In his complaint, Ex. PW-1/A, he specifically stated that accused Amit, Rinku and 2-3 other persons came to him and asked him to withdraw the case against them and on his refusal, accused Amit hit him on his finger with sharp edged weapon. However, at the time of recording of his testimony in the court in capacity of PW-1, he has not stated so. Thus, PW-1/complainant Sh. Pramod has not explained the cause of quarrel. It is pertinent to mention that in his cross-examination, PW-1/complainant Sh. Pramod has specifically deposed that accused persons did not talk to him and immediately started beating him. Thus, PW-1/complainant Sh. Pramod has given two contradictory versions which cannot exist together. This raises serious dobuts on veracity of PW-1/complainant Sh. Pramod.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 22 of 37 State Vs. Shiv Prasad @ Amit & Ors.
36. PW-1/complainant Sh. Pramod deposed that someone had inflicted sariya blow on his head and thereafter his parents were also beaten. However, in his cross-examination, he deposed that his father was hit by the rod and he was not hit firstly. Thus, there are material contradictions in the version of PW-1/complainant Sh. Pramod with respect to the same set of facts which raises serious doubts on his veracity.
37. PW-1/complainant Sh. Pramod in his cross-examination could not tell about the kinds of clothes he was wearing at the time of incident. He even could not tell whether the incident took place in winter or summer season. This raises serious doubts on the veracity of PW-1/complainant Sh. Pramod.
38. PW-2 Sh. Om Prakash who is the father of PW-1/complainant Sh. Pramod deposed that accused Rinku gave rod blow on his head and he sustained injury on his head and due to the said head injury he could not recollect the facts. In his cross-examination, he also deposed that he regained consciousness in the hospital on the next day. PW-10 Dr. Deepak has proved the MLC of PW-2 Sh. Om Prakash, Ex. PW-10/A. However, as per MLC of PW-2 Sh. Om Prakash, Ex. PW-10/A, there was no head injury on his person and he was conscious and oriented. Thus, as per MLC, Ex. PW-10/A, PW-2 Sh. Om Prakash never became unconscious and his version that he regained consciousness on next day is not reliable. In these circumstances, the testimony of PW-2 Sh. Om Prakash cannot be relied upon.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 23 of 37 State Vs. Shiv Prasad @ Amit & Ors.
39. PW-1/complainant Sh. Pramod deposed that firstly he came to the gali and when the incident was going on, his parents i.e. PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati came there. However, PW-2 Sh. Om Prakash father of PW-1/complainant Sh. Pramod deposed that when he came in the gali, he had not seen Pramod at the place of incident. He also deposed that Pramod had gone for his work. In cross-examination by the Ld. Addl. PP for the State, PW-2 Sh. Om Prakash denied the suggestion that when he came outside, he saw that accused Amit along with his friend was beating his son Pramod. Thus, PW-2 Sh. Om Prakash has raised doubts on the presence of PW-1/complainant Sh. Pramod at the spot of incident at the time of incident. Thus, there are material contradictions in the testimony of PW-1/complainant Sh. Pramod and PW-2 Sh. Om Prakash which raises serious doubts on their veracity.
40. PW-2 Sh. Om Prakash deposed that he had seen the police at the spot of incident and he had shown them the papers but immediately accused persons started beating him. Thus, as per version of PW-2 Sh. Om Prakash, he was given beatings by accused persons while he was showing papers to the police. However, no other eyewitness including PW-1/complainant Sh. Pramod, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar has deposed on same lines. Moreover, PW-6 Ct. Ankur and PW-13/IO SI Praveen who reached at the spot of incident have not deposed that PW-2 Sh. Om Prakash had shown any documents to them or that he was given beatings by the accused FIR No. 298/2012, PS: Sarai Rohilla Page no. 24 of 37 State Vs. Shiv Prasad @ Amit & Ors.
persons while he was showing papers to them. This raises serious doubts on veracity of PW-2 Sh. Om Prakash.
41. PW-1/complainant Sh. Pramod deposed that when he came in the gali, accused Kailash and Sangeeta were present there. Thus, as per version of PW-1/complainant Sh. Pramod, accused Kailash and Sangeeta were present at the spot of incident before the starting of the quarrel. He also deposed that his parents i.e. PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati came later on. PW-2 Sh. Om Prakash has denied the presence of PW-1/complainant Sh. Pramod at the spot of incident. PW-4 Smt. Vidyawati deposed that in her presence, accused Sangeeta and Kailash came to the spot of incident. Thus, three different versions with respect to the same set of facts i.e. time of coming of accused persons namely Sangeeta and Kailash at the spot of incident have been brought on record by PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati. This raises serious doubts on the veracity of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati.
42. PW-7 Sh. Mohan deposed that accused Amit, Kailash and Sangeeta were beating Pramod, Manoj and Om Prakash and thereafter accused party had called more persons and one of them is present in the court and he identified accused Tarun as the said person. Thus, as per version of PW-7 Sh. Mohan, accused Tarun @ Rinku was called at the spot of incident in the middle of the quarrel. However, PW-1/complainant Sh. Pramod has specifically deposed that accused Tarun @ Rinku was present at the spot of FIR No. 298/2012, PS: Sarai Rohilla Page no. 25 of 37 State Vs. Shiv Prasad @ Amit & Ors.
incident even before the start of quarrel. Thus, there are material contradictions with respect to the presence of accused Tarun @ Rinku in the testimonies of PW-1/complainant Sh. Pramod and PW-7 Sh. Mohan and both versions cannot stand together.
43. PW-7 Sh. Mohan deposed that when he came out of his house, he saw accused Kailash, Sangeeta and Amit abusing Om Prakash and till that time none had received any injury. He also deposed that Pramod and Vidyawati were inside the house and were not present at the spot of incident when he came out of house. However, PW-1/complainant Sh. Pramod deposed that firstly he came out of his house and the quarrel started and only thereafter his parents i.e. PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati came there and all of them were given beatings by accused persons. As per the version of PW-1/complainant Sh. Pramod, PW-7 Sh. Mohan Kumar came at last. Thus, there are material contradictions in the testimony of PW-1/complainant Sh. Pramod and PW-7 Sh. Mohan with respect to the time of their reaching at the spot of incident which raises serious doubts on their veracity.
44. PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati have deposed that accused Tarun @ Rinku gave beatings to them. However, PW-7 Sh. Mohan Kumar has deposed that accused Rinku was not present at the time of abusing and he was present at a distance of about 10 feet from the place of incident before the police arrived. PW-6 Ct. Ankur and PW-13/IO SI Praveen have deposed that a quarrel was going FIR No. 298/2012, PS: Sarai Rohilla Page no. 26 of 37 State Vs. Shiv Prasad @ Amit & Ors.
on when they reached at the spot of incident and thereafter the matter was pacified with the help of available staff and PCR officials. Thus, as per version of PW-7 Sh. Mohan, accused Rinku was not involved in the incident till the police arrived which is contrary to the versions of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash and PW-4 Smt. Vidyawati. It raises serious doubts on the veracity of prosecution witnesses as well as on prosecution story.
45. PW-1/complainant Sh. Pramod deposed that accused Rinku was having iron rod but further deposed that he cannot tell as to what weapon was carried by which accused. He deposed that accused Amit did not have any weapon in his hand. However, in his complaint, Ex. PW-1/A given to the police, PW- 1/complainant Sh. Pramod has not stated that accused Tarun @ Rinku was having any rod in his hand. PW-1/complainant Sh. Pramod has not deposed about carrying of any weapon by other accused persons except accused Tarun @ Rinku. However, PW-2 Sh. Om Prakash deposed that all the accused persons were carrying danda and sariya. PW-4 Smt. Vidyawati has not deposed about the carrying of sariya or dandas by the accused persons. PW-7 Sh. Mohan Kumar did not depose that accused Tarun @ Rinku was having any rod or sariya in his hand. Thus, all the abovesaid four eyewitnesses have given different version with respect to carrying of particular weapons by the accused persons. It is pertinent to mention that no danda or sariya was ever recovered from possession of any of the accused and hence it has FIR No. 298/2012, PS: Sarai Rohilla Page no. 27 of 37 State Vs. Shiv Prasad @ Amit & Ors.
become doubtful whether any danda or sariya was used in the commission of offence or not.
46. PW-13/IO SI Praveen deposed that he arrested accused Tarun @ Rinku on 05.12.2012 vide arrest memo Ex. PW-13/D from Kalu Chaatwala, Ganda Nala, Bharat Nagar. However, as per the arrest memo of accused Tarun @ Rinku, Ex. PW-13/D, he was arrested at PS Sarai Rohilla only and not from Kalu Chaatwala, Ganda Nala, Bharat Nagar. The alleged incident took place on 29.08.2012 but accused Tarun @ Rinku was arrested by the IO on 05.12.2012 i.e. after a delay of about four months which has not been explained by the IO. The manner, time and place of arrest of accused Tarun @ Rinku raises serious doubts on the conduct of the IO.
47. DW-1 Ms. Minakshi who is the daughter of accused persons namely Sangeeta and Kailash deposed that on 29.08.2012 at about 08:00-08:15 pm, PW-1/complainant Sh. Pramod came to her house under influence of liquor and started outraging her modesty and when her mother came, she narrated the entire incident to her. She further deposed that when her mother asked accused Pramod as to why he had come to his house, PW-1/complainant Sh. Pramod and his family members gave beatings to her parents and brother. The verison of DW-1 Ms. Minakshi that PW-1/complainant Sh. Pramod was under
influence of liquor has been corroborated by his MLC, Ex. PW- 10/D. It has put a dent on the prosecution story.
48. PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, FIR No. 298/2012, PS: Sarai Rohilla Page no. 28 of 37 State Vs. Shiv Prasad @ Amit & Ors.
PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar have not explained as to how the accused persons sustained injuries if they were aggressors. PW-4 Smt. Vidyawati has specifically deposed that no case was lodged by accused Sangeeta on the same day against him. However, on the perusal of record, it is revealed that accused Sangeeta had lodged a cross-FIR No. 299/2012, PS Sarai Rohilla against complainant Pramod and his family members on the date of incident itself. It has come on record that a quarrel had taken place between the complainant and his family members and the accused persons and both the parties had also sustained injuries. PW-13/IO SI Praveen deposed that the quarrel was going on between two parties when he reached at the spot of incident but he has not deposed as to which party was the aggressor and which party was victim. He also deposed that he found mob at the spot of incident. Thus, despite seeing the quarrel, PW-13/IO SI Praveen could not assess as to which party was at fault. From the testimony of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan it has not been proved that accused persons were the aggressors in the present case. It has weakened the case of prosecution.
49. DW-2 Sh. Somvir has also deposed that PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-7 Sh. Mohan, Manoj and Pintu gave beatings to accused Sangeeta and her husband Kailash and at that time accused Tarun @ Rinku took Sangeeta on one side and asked her to sit there. Thus, as per version of FIR No. 298/2012, PS: Sarai Rohilla Page no. 29 of 37 State Vs. Shiv Prasad @ Amit & Ors.
DW-1 Ms. Minakshi and DW-2 Sh. Somvir, the accused persons were the victims while the PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-7 Sh. Mohan, Manoj and Pintu were the aggressors. Through the testimony of DW-1 Ms. Minakshi and DW-2 Sh. Somvir coupled with the contradictions in the statement of injured witnesses, the accused persons have been successful in puting a dent on prosecution story.
50. The alleged incident took place at a public place i.e. in the street where several houses were situated. PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar have admitted that public persons had gathered at the spot. PW-6 Ct. Ankur has also deposed that there was a crowd at the spot of incident. PW-13 IO/SI Praveen has also deposed that he saw a mob at the spot of incident. Despite the presence of independent eyewitnesses, the IO has not examined any independent eyewitness in the present case for the reasons best known to him. Since with respect to the present incident, two cross-FIRs have been registered by two different parties against each other, the joining of independent eyewitnesses could have corroborated the version of any of such party.
51. Hon'ble High Court of Delhi in Judgment titled as 'Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as MANU/DE/3131/2017'' has held that:-
'joining of independent public witness is not mere a FIR No. 298/2012, PS: Sarai Rohilla Page no. 30 of 37 State Vs. Shiv Prasad @ Amit & Ors.
formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them'.
52. Thus, it is clear that IO has not joined independent eyewitnesses in the investigation despite availability. Thus, in view of law laid down by Hon'ble High Court of Delhi in judgment titled as 'Mohammad Burhan (Supra)', non-joining of any independent eyewitnesses in the present case is fatal to the case of prosecution.
53. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
FIR No. 298/2012, PS: Sarai Rohilla Page no. 31 of 37 State Vs. Shiv Prasad @ Amit & Ors.
54. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber 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 circumstances should given room for any doubt as to the factum of the occurrence, the FIR No. 298/2012, PS: Sarai Rohilla Page no. 32 of 37 State Vs. Shiv Prasad @ Amit & Ors.
persons involved, as well as the sequence of it. Such a version should have corelation 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 very 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 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 FIR No. 298/2012, PS: Sarai Rohilla Page no. 33 of 37 State Vs. Shiv Prasad @ Amit & Ors.
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."
55. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
56. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
57. Due to material contradictions in the testimonies of PW- 1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar serious doubts have been FIR No. 298/2012, PS: Sarai Rohilla Page no. 34 of 37 State Vs. Shiv Prasad @ Amit & Ors.
created upon the prosecution story. The versions of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar are not natural one and casts a shadow of doubt on their veracity. The things appears to have not happened in the manner these have been projected. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar are not clear, cogent, credible and trustworthy and same are not corroborated by other material evidence. The testimonies of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
58. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
59. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to FIR No. 298/2012, PS: Sarai Rohilla Page no. 35 of 37 State Vs. Shiv Prasad @ Amit & Ors.
deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
60. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
FIR No. 298/2012, PS: Sarai Rohilla Page no. 36 of 37 State Vs. Shiv Prasad @ Amit & Ors.
61. In the present case, due to the material contradictions in the testimonies of PW-1/complainant Sh. Pramod, PW-2 Sh. Om Prakash, PW-4 Smt. Vidyawati and PW-7 Sh. Mohan Kumar, non-recovery of weapons of offence i.e. Sariya/dandas, non- seizure of blood-stained clothes of injured persons and earth control, being under the influence of alcohol of PW-1/complainant Sh. Pramod Kumar, non joining of any independent eyewitnesses in investigation despite availability and defence taken by accused persons on the basis of which cross-FIR No. 299/2012, PS Sarai Rohilla has been registered, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
62. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable under Section 323/34, 326/34 & 308/34 IPC against all the four accused persons beyond reasonable doubt.
63. Accordingly in view of the aforesaid discussion, accused persons namely Shiv Prasad @ Amit, Kailash, Sangeeta & Tarun @ Rinku are hereby acquitted for offence punishable under Section 323/34, 326/34 & 308/34 IPC.
Digitally signed VIRENDER by VIRENDER Announced in the open court KUMAR KUMAR KHARTA KHARTA on 7th day of September, 2024 Date: 2024.09.07 12:16:06 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:07.09.2024 FIR No. 298/2012, PS: Sarai Rohilla Page no. 37 of 37 State Vs. Shiv Prasad @ Amit & Ors.