Delhi District Court
State vs . Pawan Kumar Etc. on 24 February, 2023
IN THE COURT OF SHRI YASHDEEP CHAHAL
Metropolitan Magistrate01 : New Delhi District
Patiala House Courts : New Delhi.
State Vs. Pawan Kumar Etc.
FIR No. 78/2013
P.S. : Connaught Place
Under Section : 186/329/332/353/356/34 IPC
ID number of the case : 52914/2016 DLND020066312014
Date of commission of : 24.05.2013.
offence
Date of institution of the : 10.11.2014.
case
Name of the complainant : Constable Deep Chand, No.2689/ND,
PIS No.28100789, S/o Shri Vishan Dev, R/o.
House. No.VI/58, Budh Vihar PhaseI, New
Delhi.
Name of accused and : (1) Pawan Kumar @ Machu, S/o Shri Ram
address Mehar, R/o Jhuggi No. 10, Near Palika
Dham, Kali Mandir, New Delhi & Village
Jhalwa, P.S. Bishesharganj, P.O. Gangg
Jammi, District Behraich, UttarPradesh.
(2) Sushil Kumar @ Chaubey, S/o Shri Ram
Manohar, R/o Jhuggi No. 10, Near Palika
Dham, Kali Mandir, New Delhi & Village
Jhalwa, P.S. Bishesharganj, P.O. Gangg
Jammi, District Behraich, UttarPradesh.
(3) Pritam Singh, S/o Shri Bhali Singh, R/o
H. No. 45, The Enclave, Vikas Nagar, Uttam
Nagar, Delhi.
(4) Ajeet Kumar, S/o Late Ram Manohar
Kashyap, R/o Jhuggi No. 10, Near Palika
Dham, Kali Mandir, New Delhi & Village
Jhalwa, P.S. Bishesharganj, P.O. Gangg
Jammi, District Behraich, UttarPradesh.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 1/41
(5) Vinod, S/o Shri Ishwar Sharma, R/o
Village Dhandra, P.S. Maskar, District
Navada, Bihar.
Offence complained of or : Under Sections 149/186/332/353/379 of IPC
proved Complained of.
Under Sections 186, 332, 353 read with
Section 34 of IPC proved.
Plea of the accused : Pleaded not guilty
Final order : Accused Pawan Kumar @ Machu and Sushil
Kumar @ Chaubey Convicted.
Accused Pritam Singh, Ajeet Kumar and
Vinod Acquitted.
Date of judgment : 24.02.2023.
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.As per case of prosecution on 24.05.2013 at about 11:20 a.m. in Janpath Market near DFMD Barricades, Bank of Baroda Side, within the jurisdiction of Police Station Connaught Place, New Delhi, accused Pawan Kumar @ Machu, Sushil Kumar @ Chobey, Pritam Singh, Ajit Kumar and Vinod along with some unidentified associates formed an unlawful assembly and in prosecution of the common object of unlawful assembly, voluntarily obstructed complainant/constable Deep Chand, a public servant, in discharge of his public function i.e. to maintain law and order and assaulted him thereby voluntarily caused simple hurt to him by beating him with the intent to prevent and deter the complainant in lawful discharge of his duty. Further, they also snatched gold chain weighing about 8 gm from the neck of the complainant.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 2/412. The complaint revealed that while complainant constable Deep Chand was posted at Police Station Connaught Place, New Delhi and performing his official duty in Division No. 4, Janpath Market towards Bank of Baroda, DFMD Barricades and was alone on patrolling in the area on 24.05.2013, at about 11:20 a.m., when he reached near LIC Parking, one of the accused, was selling goods/articles on the public way under Teh Bazari in violation of the stay order granted by the Hon'ble Delhi High Court, causing obstruction/hindrance to the passerby, and was directed/instructed to keep the articles/goods within the prescribed limits. On being told so, he spoke to the complainant in filthy language by saying 'tum police wale kaun hote ho hamara samaan chhota karane wale' and thereafter, he started abusing complainant in loud voice and gathered other Teh Bazari Holders by using filthy and abusive language by saying 'Aaj in police walon ko sabak sikha do. Anyhow the complainant escaped from there and as soon as he reached near Barricade, 34 boys came from behind and started beating the complainant by saying 'Aaj hum police ko sabak sikha kar he rahenge ki ye hamare thhiye ka samaan kaise chhota karate hain'. The complainant tried to escape from their clutches but they did not stop and beat the complainant brutally. They pulled down the complainant as a result of which button of his shirt was also broken. Meanwhile, one of the boys snatched his gold chain weighing 8 grams. Mob also gathered at the spot and taking advantage of the situation, they fled away from the spot. The alleged act was done at the instance of Mohd. Hayat and all the boys used to work with him and Mohd. Hayat had taken the place under Teh Bazari under partnership. Thereafter, complainant narrated the incident to FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 3/41 Constable Satender and H.C. Satyavir who called other Police Staff from the Police Station. In the meanwhile, PCR Van also reached there and Constable Hans Raj took the injured complainant Deep Chand to Ram Manohar Lohia Hospital for treatment where he told the I.O. that all the men have beaten him at the instance of Pritam, caused obstruction in discharge of his official duty and snatched his gold chain weighing 8 grams.
3. On the complaint of complainant, present FIR was registered. After completion of investigation, chargesheet under Section 186/332/353/356/379/34 of IPC was filed in the Court concerned. All accused were summoned and requisite documents were supplied to them in compliance of Section 207 of Cr. P.C.
4. Thereafter, charges under Section 149/186/332/353/379 of the Indian Penal Code, 1860 were framed against the accused to which they pleaded not guilty and claimed trial.
5. The trial was commenced and the matter proceeded to the stage of prosecution evidence. To prove its case, the prosecution has examined following witnesses:
6. Complainant/Constable Deep Chand, No. 2689/ND, Posted at Police Station Parliament Street, New Delhi was examined as PW1. He deposed on oath that on 24.05.2013, he was posted at Police Station Connaught Place and was deputed as beat constable in Division No. 4 at FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 4/41 Janpath Market. He further deposed that in Janpath Lane there were some open shops which were formed on wooden planks where shopkeepers used to sell their goods. He further deposed that there was an order of the Hon'ble High Court by which stay was granted to the shopkeepers to organize the market there. He further deposed that as per arrangement on the entry in the lane there were barricades and with each barricade there was a DFMD (Metal Detector) for entry and exit in the lane. On that day, he was on duty with Head Constable Satbir, Constable Hans Raj and Constable Satender. He further deposed that after entering in the market they told the shopkeepers not to extend their shops as it was obstructing the passage of entry and exit in the market and the space for walking should not be obstructed. Thereafter, they all went towards Sansad Marg. He further deposed that after about 20 minutes when he was coming back and passing through the Janpath Lane, he saw crowd gathered there and one person, namely, Pritam called him and when he went there Pritam started rebuking him by saying that 'tumhari himmat kaise huyi humein direction dene ki aur aaj tum sab police walo ko sabak sikhana hai'. Thereafter, Pritam started abusing him. Sensing the danger he started walking from there ignoring him and other crowd. However, when he was walking he felt that someone was chasing him and when he turned around he saw two accused along with other accused persons running towards him and they all attacked him. PW1 correctly identified accused persons in the Court. He further deposed that accused Sushil caught hold of his feet and Pawan started beating him. Subsequently, other persons also joined them in beating the complainant and he fell down on the road. In the meanwhile, some public person intervened and saved the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 5/41 complainant and someone called PCR at 100 number and police arrived at the spot. He further deposed that his gold chain which was worn around his neck was also snatched in the incident. Thereafter, he was taken to Ram Manohar Lohia Hospital where he received medical treatment. Meanwhile, Constable Hans Raj also reached at the hospital where his statement Ex. PW1/A, bearing his signatures at point A, was recorded. Thereafter, at about 3:00 p.m., he was discharged from the hospital. Thereafter, he along with other police officials again visited the spot where he shown the spot to them, however by that time almost all the shopkeepers who used to work on the wooden planks had gone from there and the accused persons who had attacked him were also not present there. At that time one secret informer informed the I.O. that Pawan and Sushil were present near a mosque near Janpath Lane. Thereafter, he along with I.O. and other police officials went there and saw accused Sushil and Pawan. PW1 identified accused Sushil and Pawan in the Court who were arrested vide arrest memo Ex. PW1/B and Ex. PW1/C, both bearing his signatures at point A respectively. Both the accused persons were personally searched vide personal search memos Ex. PW1/D and Ex. PW1/E, both bearing his signatures at point A respectively. He further deposed that his torn uniform shirt was also seized vide seizure memo Ex. PW1/F, bearing his signatures at point A. Thereafter, he came to know the name of other attackers as Ajit and Vinod. Subsequently, PW1 correctly identified accused Ajit, Vinod and Pritam in the Court. He further deposed that after arrest of Sushil and Pawan they went back to Police Station where they were sent to lock up. He further deposed that at about 06:00 p.m. I.O. received information FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 6/41 that accused Vinod was present in the parking of Indian Oil Building. Thereafter, he along with I.O. and other police officials went there and accused Vinod was arrested at his instance vide arrest memo Ex. PW 1/G. He was personally searched vide personal search memo Ex. PW 1/H, both bearing his signatures at point A respectively. He further deposed that thereafter, I.O. received the information that accused Pritam was present near the toilet opposite Bank of Baroda, Connaught Place. After receiving this information, they went there and at his instance accused Pritam was arrested vide arrest memo Ex. PW1/J and was personally searched vide personal search memo Ex. PW1/K, both bearing his signatures at point A respectively. After medical examination, both the accused persons were sent to lock up. He further deposed that on the next morning at about 5:00 a.m., he was present in the Police Station Connaught Place and I.O. received an information that one more accused was present in his Jhuggi near Palika Kendra. Thereafter, they went there and at his instance accused Ajit was arrested vide arrest memo Ex. PW 1/L and was personally searched vide personal search memo Ex. PW 1/M, both bearing his signatures at point A respectively. After medical examination accused was sent to lock up.
7. During examination of PW1 MHC (M) produced one sealed pulanda sealed with the seal of RC, bearing particulars of the present case, same was opened with the permission of the Court and one while colour polythene was taken out containing one uniform shirt with whistle guard, right pocket of which was in torn condition, button of left shoulder flap was in broken condition, two buttons of the shirt were also in broken FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 7/41 condition, the shirt was torn from right shoulder and batch (DP) was not present on the right shoulder flap. The same were shown to the witness and he correctly identified the same which he wore at the time when he was beaten up by the accused persons. The shirt was exhibited as Ex. P1.
8. With the permission of the Court, Ld. APP for State asked introductory leading question whether there was any CCTV camera in the area and he along with I.O. had watched that CCTV footage of the relevant time to which PW1 replied in affirmative and that its control room was on the top floor of the building of P.S. Connaught Place. He further deposed that after discharging from the hospital, he along with I.O. went to watch the CCTV footage of the relevant time when he was beaten up by the accused persons and after watching the CCTV footage I.O. instructed the officials of control room to preserve the same. He further deposed that accused could be seen beating him in the CCTV footage.
9. With the permission of the Court, CCTV footage contained in the compact disc, sealed with the seal of J.K., was played showing the time as 11:18 a.m. and date as 24.05.2013 with police barricade and DFMD. PW1 surrounded with 45 persons being beaten up badly and thrown on the ground was seen therein but faces of the assailants were not clear. However, in the second video clip accused Pawan was clearly visible and he was seen beating PW1 along with his brother Sushil but faces of other assailants were not clear. After perusal of the compact disc, it was crystal clear that witness was beaten up by the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 8/41 public persons and later he was taken away from the spot. The compact disc was exhibited as Ex. P1.
10. MHC (M) again produced one sealed pulanda, sealed with the seal of J.K. which was opened up with the permission of Court. It was found containing one police uniform shirt in one polythene which was in torn condition from 23 places. Same was shown to the witness and he correctly identified the same. The case property was exhibited as Ex. P2.
11. During his crossexamination PW1 Constable Deep Chand affirmed that the Kiosks/Planks of the accused persons were permitted by the Government and a stay order was granted by the Hon'ble High Court in their favor. He further deposed that size of the Kiosks/Planks of the accused persons is 4x6 but he did not bring any papers in this regard. He affirmed that if any shopkeeper extends the size of his Kiosks/Planks the officials of NDMC challans the Kiosks/Planks and the accused person. He further affirmed that officials of NDMC regularly visit the site and if they find any irregularity, they take legal action. PW1 further deposed that he along with Constable Satyender, Constable Hans Raj, Head Constable Satyavir and Constable Narender were on regular visit and were giving warnings to the shopkeepers not to extend their area prescribed as per rules. He further affirmed that they did not measure the area of Kiosks/Planks of the accused persons on that day. He further deposed that around total 1520 public persons gathered at the spot at that time. Thereafter, PCR van reached at the spot and taken him to Ram FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 9/41 Manohar Lohia Hospital for medical treatment and after first aid at about 3:00 p.m., they came to Police Station. He affirmed that accused persons were also got medically examined at Ram Manohar Lohia Hospital after the incident. They were arrested on the same day till late evening except accused Ajeet who was arrested on the next date. He denied the suggestion that accused persons were beaten up and tortured in the Police Station at night and they were not provided food and drink. He further deposed that CCTV footage was seen in his presence by the I.O. in the Police Station but the same was not seized in his presence. He could not say whether the DVR set was seized by the I.O. or not. He further deposed that his statement was recorded by the I.O. at Ram Manohar Lohia Hospital at about 1:30 p.m. on the same day. No other witness was examined in his presence by the I.O. He further deposed that arrest memo and other memos were prepared by the I.O. at the Police Station in his presence. PW1 affirmed that he along with constable Hans Raj and Constable Satyender signed some papers before the I.O. in the Police Station. He further deposed that he along with I.O. visited the spot on the same day at about 4:00 p.m. He could not say as to where the I.O. had prepared the site plan. He even did not remember whether he signed any paper at the spot but he certainly signed some papers at the Police Station. He affirmed that accused Pritam Singh remained on the wheel chair. He denied the suggestion that the accused persons did not assault or beat or misbehave him. He denied the suggestion that the accused persons were innocent and had been falsely implicated by the I.O. as they had demanded payment of certain items from the complainant.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 10/4112. Constable Hansraj, No. 652, New Delhi District, Posted at Police Station Connaught Place, New Delhi was examined as PW2. He deposed on oath that on 24.05.2013, his duty was in Division No. 4 at Janpath Market and he along with Head Constable Satvir, Constable Deep Chand and Constable Satender were removing the stalls which were coming on the road (thaiyya chotte karwa rahe the). He further deposed that at that time Constable Deep Chand was going at the side of Bank of Baroda and he along with Head Constable Satvir and Constable Satender was at Janpath Road towards Janpath Market. He further deposed that at about 11:20 a.m. Constable Deep Chand told him that accused persons, namely, Sushil @ Chaubey, Pawan and Vinod along with some other persons gave beatings to him at the instance of Pritam Singh. Thereafter, he along with Head Constable Satvir, Constable Deep Chand and Constable Satender went to the spot i.e. near Bank of Baroda, Janpath Lane and at that time constable Satender made a call to Police Station Connaught Place and narrated about the fact and asked some more force. After the call PCR Van along with some other staff reached at the spot. Thereafter, he took constable Deep Chand to Ram Manohar Lohia Hospital by PCR Van for his medical examination. At about 12:10 p.m. ASI Raj Kumar also reached at Ram Manohar Lohia Hospital and he was also present there at that time. Thereafter, I.O./ASI Raj Kumar recorded statement of Constable Deep Chand and prepared rukka and same was handed over to him for registration of FIR at about 1:15 p.m. Thereafter, he went to the Police Station and after registration of FIR came back to Ram Manohar Lohia Hospital along with copy of FIR and original rukka and handed over the same to I.O. Thereafter, he along with FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 11/41 I.O. and constable Deep Chand came back to Police Station. At that time, they met constable Kuldeep in CCTV Room and told him to show the CCTV footage of Janpath Market (spot) of the time 11:18 a.m. He shown them the said CCTV footage wherein they saw that some persons were fighting/giving beatings to constable Deep Chand (Kuchh log Constable Deep Chand ke saath maar peet kar rahe the). Thereafter, I.O. gave direction to Constable Kuldeep to save the said CCTV footage. Thereafter, they came back at the spot where other staff officials were also present. He further deposed that at the time of beatings to Constable Deep Chand, his gold chain was also lost at the spot so they searched for the same but all in vain. However, at that time one secret informer gave information to the I.O. that accused Pawan and Sushil were waiting for someone at the Raja Masjid at Janpath Lane, Connaught Place. Thereafter, he along with constable Satender and I.O. reached there and inquired from them and both the accused persons accepted that they gave beatings to Constable Deep Chand along with other persons. Accused Sushil @ Chaubey also told that he got injury on his eye at the time of beatings to Constable Deep Chand and his eye was swelling. Thereafter, they formally apprehended both the accused persons. At that time, secret informer informed the I.O. that accused Vinod has hidden himself in the parking area of Indian Oil Bhawan. Thereafter, they inquired Vinod and he accepted his involvement in the present case. He was formally arrested by the I.O. He further deposed that secret informer again gave information about another accused Pritam that he was sitting near the toilet in front of Bank of Baroda at Janpath Lane (who is a handicapped). On being inquired, he also accepted his involvement in the present case.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 12/41Thereafter, I.O. arrested all the accused persons, namely, Sushil Kumar, Vinod, Pawan and Pritam Singh vide arrest memo, already Ex. PW1/B, Ex. PW1/C, Ex. PW1/J & Ex. PW1/G, all bearing his signatures at point B respectively. All accused persons were personally searched vide personal search memos, already Ex. PW1/D, Ex. PW1/E, Ex. PW1/H & Ex. PW1/K, all bearing his signatures at point B respectively. Thereafter, I.O. recorded their disclosure statement vide Ex.PW2/A, Ex. PW2/B, Ex. PW2/C and Ex. PW2/D, all bearing his signatures at point B respectively. I.O. also seized torn uniform of Constable Deep Chand vide seizure memo, already Ex. PW1/F, bearing his signatures at point B, when they came back from the hospital to Police Station. Thereafter, I.O. recorded his statement. All accused persons were correctly identified by the witness. He also identified the torn uniform of Constable Deep Chand as Ex. P1, which was produced by the MHC (M), which was sealed with the seal of J.K.
13. During his crossexamination, PW2 Constable Hansraj deposed that on the fateful day, he was on duty from 09:00 a.m. in Division No. 4 at Janpath Market, New Delhi and there is only one beat box. He further deposed that he along with Constable Deep Chand, Head Constable Satbir, Constable Satender were on same beat. He further deposed that he was on Janpath Road at the time of incident which is at a distance of 100/150 meters away from the spot. He further deposed that Constable Deep Chand came to him at about 11:20 a.m. and told him about the incident. Constable Satender called the PCR and Police Station and informed about the incident. Thereafter, he along with Constable FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 13/41 Deep Chand and other staff reached at the spot. Constable Satender called the Duty Officer and in the meantime, PCR also reached there. He affirmed that when he reached at the spot there was no quarrel at that time. He further affirmed that Constable Deep Chand narrated him about the incident and he did not see anything i.e. quarrel at the spot. Thereafter, he moved constable Deep Chand to Ram Manohar Lohia Hospital in PCR Van. He further deposed that statement of constable Deep Chand was recorded in his presence in the hospital. He did not remember whether any other person/witness was also present there. Thereafter, I.O. handed over him rukka for registration of the case and he left for the Police Station. He did not remember at what time he returned back to the hospital. Thereafter, he handed over copy of FIR to the I.O. but did not remember who else was present there at that time. He affirmed that constable Deep Chand was discharged at the same time and he came to Police Station along with them. He further deposed that his statement was recorded by the I.O. in the Police Station but he could not recall the exact time. He did not remember whether statement of any other witness was recorded in his presence. He further deposed that I.O. had seen the CCTV footage and instructed Constable Kuldeep to save it. He did not remember whether DVR set or the CD of the incident were taken into possession by the I.O. in his presence. He also did not know whether the Teh Bazari/squatters were installed by the accused persons with the permission of NDMC or the Hon'ble Delhi High Court had granted stay on these squatters/Teh Bazari. He affirmed that NDMC has prescribed the area/size/norms of the squatters which were mentioned in their papers and are generally 6x4 feet. He affirmed that NDMC officials FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 14/41 regularly visit in the market and regularly check size of the squatters and challan against the squatters. He volunteered that they also challan the squatters under the Delhi Police Act. He affirmed that he was with the I.O. at the time of arrest of some of the accused. He further affirmed that he was not present at the spot at the time of incident, hence could not tell about the manner in which the incident took place. He further affirmed that he relied upon the version of Constable Deep Chand which was told to him. He denied the suggestion that he did not join the investigation. He further denied the suggestion that he has deposed falsely at the instance of I.O. He further denied the suggestion that accused persons were falsely implicated by the police in the above said case for want of bribe. He further deposed that he knew accused Pritam since the date of incident. He affirmed that accused Pritam move with the help of Baisakhi.
14. Shri V.K. Pandey, Ld. Counsel for accused Pritam adopted the crossexamination of PW1 conducted on behalf of other accused persons.
15. Head Constable Madan Lal, No. 1054/ND, Posted at Prosecution Branch, New Delhi District, Patiala House Courts, New Delhi was examined as PW3. He deposed on oath that on 24.05.2013 he was posted as constable at Police Station Connaught Place, New Delhi. On that day, he joined investigation in the present case along with ASI Raj Kumar as he received D.D. No. 13A dated 24.05.2013 regarding quarrel. Thereafter, he along with I.O./ASI Raj Kumar reached at the spot i.e. Jeewan Bharti Building, Janpath (Fatta Market), where on inquiry FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 15/41 I.O. found that a scuffle had taken place between Pawan, Sushil and Constable Deep Chand. During inquiry they came to know that Pawan and Sushil had beaten Constable Deep Chand. Both these accused persons were correctly identified by PW3. He further deposed that before they reached at the spot, constable Hans Raj had taken constable Deep Chand at Ram Manohar Lohia Hospital for medical treatment. I.O./ASI Raj Kumar had left him at the spot and he went to Ram Manohar Lohia Hospital. Thereafter, I.O. recorded his statement in the Police Station.
16. During his crossexamination, PW3 Head Constable Madan Lal affirmed that when he reached at the spot along with ASI Raj Kumar, the scuffle had already taken place. He further affirmed that incident did not take place in his presence. He further affirmed that I.O. did not take the measurement of the Kiosks/Phatta in his presence. He further affirmed that the site plan was not prepared in his presence. He further affirmed that the I.O. did not seize any case property in his presence. He further affirmed that I.O. did not record statement of any witness in his presence nor did prepare any memo in his presence. He further deposed that I.O. recorded his statement in the Police Station on the same day but he could not remember the time. He further deposed that he handed over the D.D. entry to ASI Raj Kumar and accompanied him to the spot. He further affirmed that he did not join any further investigation along with ASI Raj Kumar.
17. ASI Satyavir, No. 278/ND, Posted at Police Station Tilak FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 16/41 Marg, New Delhi was examined as PW4. He deposed on oath that on 24.05.2003 he was posted as Head Constable in Police Station Connaught Place, New Delhi and on that day his duty was as a Beat Head Constable at Janpath Market, New Delhi. He further deposed that on that day, he alongwith constable Deep Chand, Constable Hans Raj and Constable Satyender was on patrolling duty in the area. On that day, he told the shopkeepers to not spread their articles on the road and limit their shops (Fatta) in limited area as by these acts of shopkeepers, people were facing problems. After instructing the shopkeepers, he left the spot and had gone towards Janpath Lane. At about 11:20 a.m., Constable Deep Chand told him 'Prittam Ke Kehne Par Chhar Ladkon Ne Mujhe Maara Hai'. Thereafter, Constable Satyender informed the Police Station regarding the aforesaid quarrel. After 10 minutes, ASI Raj Kumar, Constable Madan Lal along with other staff reached at the spot. Thereafter, Constable Hans Raj took Constable Deep Chand to Ram Manohar Lohia Hospital for medical treatment. Thereafter, I.O. recorded his statement in the Police Station.
18. During his crossexamination, PW4 ASI Satyavir deposed that he did not know whether the Kiosks/Planks of the accused persons had been permitted by the NDMC. He also did not know whether there was any stay order granted by the Hon'ble High court in favour of the accused persons. He affirmed that he did not inquire from any seniors about this stay order by the Hon'ble High Court. He further deposed that size of the Kiosks/Planks of the accused persons is 6x4. He further deposed that he had heard about the size but did not know about the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 17/41 source nor he was having any paper in support of the same. He affirmed that they did not measure the Kiosks/Planks of the accused persons. He volunteered that the sign/marks had been made by the NDMC at that site. He further deposed that Constable Deep Chand called him when he was on patrolling duty along with Constable Satyender. He could not say as to how many people were gathered at the spot. He volunteered that there was crowd of the public. He did not accompany Constable Deep Chand to Ram Manohar Lohia Hospital. He further deposed that statement of Constable Deep Chand was not recorded in his presence. He further deposed that his statement was recorded by the I.O. in the Police Station. He did not sign any paper in the present case. He did not visit the spot again with the I.O. He did not even watch the CCTV footage of the incident. He affirmed that neither the footage nor the DVR set was taken into possession by the I.O. in his presence. He further deposed that he could not identify the faces of accused persons. He further deposed that he did not know whether the accused persons, except Ajeet, were arrested on the same day in the late evening. He further deposed that after the incident he was in the market and left for his residence from there. He further deposed that since he did not know any of the accused by face, so he could not say whether the accused Pritam Singh remained on wheel chair. He denied the suggestion that he has deposed falsely at the instance of I.O.
19. Constable Kuldeep, No. 552 Posted at Special Cell, New Delhi was examined as PW5. He deposed on oath that on 24.05.2013 he was posted at Police Station Connaught Place, New Delhi. On that day, FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 18/41 he was deputed in CCTV Camera Room. He further deposed that on that day, Constable Deep Chand, Constable Hans Raj and ASI Raj Kumar came in the CCTV Room and asked him to show the footage of Janpath Market of Camera No. F6, F7, F8, D8 and LIC Parking Camera. He showed the same to him. In the CCTV footage, Constable Deep Chand was seen being beaten up by the five accused persons. Thereafter, he handed over the CCTV footage dated 24.05.2013 between 11:00 a.m. to 12:30 p.m. through two CDs to ASI Raj Kumar and same were sealed with the seal of RK with the help of a white cloth which was seized by the I.O. vide seizure memo Ex. PW5/A, bearing his signatures at point A.
20. During his crossexamination PW5 Constable Kuldeep affirmed that he handed over the CCTV footage of 24.05.2013 between 11:00 a.m. to 12:30 p.m. He took the footage in two CDs and handed over it to the I.O. He also handed over the Certificate Under Section 65B of the Indian Evidence Act to the I.O. which is Ex. PW5/B, bearing his signatures at point A. I.O. also recorded his statement inside the CCTV Room. He handed over the said certificate on the same day in the evening. He affirmed that DVR set was not seized or not taken into possession by the I.O. The above mentioned CDs were seized by the I.O. in a white pulanda and same were sealed with the seal of R.K. The seal was put by R.K. Moharrar, the name of the Moharrar. He did not remember that he took main clips of the incident between the time period 11:00 a.m. to 12:30 p.m. He affirmed that he did not remember the exact duration of the recording of the incident which was made available in the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 19/41 abovesaid two CDs. He showed the footage to the I.O. and other officials but he could not identify the faces of the accused persons seen in the footage. He further deposed that when aforesaid CDs were sealed by the I.O. and his statement was recorded, Constable Deep Chand, Constable Hans Raj and ASI Raj Kumar were present there. No other statement was recorded by the I.O. in his presence. He was not sure about the exact time duration of recording available in the aforesaid two CDs. He affirmed that the CCTV Camera and DVR set were not seized/taken into possession by the I.O. He denied the suggestion that the CDs were tempered and edited and the portion which goes against the accused persons was picked up and chosen by the I.O. to implicate the accused persons falsely in the present case. He further denied the suggestion that he has deposed falsely at the instance of I.O.
21. WSI Rajesh, No. 5057D, Posted at Parliament Street, New Delhi was examined as PW6. She deposed on oath that on 24.05.2013 she was posted as Women Assistant SubInspector at Police Station Connaught Place, New Delhi. On that day, she was working as duty officer from 08:00 a.m. to 4:00 p.m. On that day, Constable Hans Raj gave her rukka which was sent by ASI Raj Kumar for registration of FIR. On the basis of said rukka, she registered the present FIR, copy of which is Ex. PW6/A (OSR), bearing her signatures at point A. She also made endorsement on the rukka Ex. PW6/B by mentioning her name at point A. After registration of FIR she handed over the copy of FIR and original rukka to constable Hans Raj for handing it over to ASI Raj Kumar for further action. She also produced certificate under Section 65B of the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 20/41 Indian Evidence Act Ex. PW6/C, bearing her signatures at point A.
22. PW6 was not crossexamined by Ld. Counsel for accused despite opportunity being given to him.
23. Head Constable Satender, No. 403/Crime, SOS1, Crime Branch, Prashant Vihar, Delhi was examined as PW7. He deposed on oath that on 24.05.2013, he was posted as Constable in Division No. 4 at Police Station Connaught Place, New Delhi. On that day, he along with Head Constable Satbir, Constable Hans Raj and Constable Deep Chand was in beat duty at Janpath Market, Connaught Place since morning i.e. at about 9:00 a.m. and were directing the shopkeepers to keep their articles inside their respective shops. Thereafter, he along with Constable Hans Raj and Head Constable Satbir moved towards the Janpath Road and Constable Deep Chand moved towards Bank of Baroda. At about 11:20 a.m., Constable Deep Chand came and informed them that he had scuffled with 45 persons near barricades near Bank of Baroda. Thereafter, he made a call in the Police Station and informed about the incident and reached at the spot where people were gathered. Meanwhile, PCR and other beat staff of Police Station Connaught Place also reached there. Constable Hans Raj and Constable Deep Chand went to Ram Manohar Lohia Hospital. Thereafter, I.O./ASI Raj Kumar also reached at the spot. After some time, constable Hans Raj along with complainant, Constable Deep Chand came back from Ram Manohar Lohia Hospital and I.O. prepared site plan at his instance. Thereafter, at about 4:40 p.m. they were on beat at Janpath market and someone came to the I.O. and FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 21/41 informed that two persons, out of the said persons, who scuffled with Constable Deep Chand, are present near Raja Masjid, Janpath Market. Thereafter, they all reached at Raja Masjid, Janpath Market and informer pointed towards the assailants, 34 public persons were asked by the I.O. to join the investigation but they refused without disclosing their names and addresses. They apprehended them and on inquiry, they revealed their names as Sushil and Pawan. Constable Deep Chand identified the said assailants. Thereafter, the said persons were interrogated and their disclosure statements were recorded. Disclosure statement of accused Sushil is already Ex. PW1/A and disclosure statement of accused Pawan is already Ex. PW2/A, both bearing his signatures at point B respectively. Thereafter, accused Sushil was arrested by the I.O. vide arrest memo already Ex. PW1/B and accused Pawan was arrested vide arrest memo already Ex. PW1/C, both bearing his signatures at point C respectively. Thereafter, accused Sushil was personally searched vide personal search memo already Ex. PW1/D and accused Pawan was personally searched vide memo already Ex. PW1/E, both bearing his signatures at point C respectively. Accused Sushil and Pawan were correctly identified by the witness in the Court. He further deposed that in the meanwhile, informer telephoned the I.O. and informed that one more assailant, namely, Vinod, who scuffled with Constable Deep Chand, is present in the parking of Indian Oil Building. I.O. shared the information with them. Thereafter, at about 6:00 p.m. with their help, I.O. arrested accused Vinod. Constable Deep Chand identified the assailant. Thereafter, accused Vinod was interrogated and his disclosure statement, already Ex. PW2/C, was recorded bearing his signatures at point B. FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 22/41 Thereafter, accused Vinod was arrested by the I.O. vide arrest memo, already Ex. PW1/G, bearing his signatures at point C. Thereafter, accused Vinod was personally searched by the I.O. vide personal search memo already Ex. PW1/H, bearing his signatures at point C. Accused Vinod was correctly identified by PW7 in the Court. In the meanwhile, secret informer again informed the I.O. that handicapped assailant Pritam, who abused constable Deep Chand and instigated other accused persons to beat him, is sitting near toilet near Bank of Baroda, where one handicapped person tried to move from there after seeing them. Thereafter, at about 6:45 p.m., with their help, I.O. apprehended him and on inquiry, he revealed his name as Pritam Singh. Constable Deep Chand identified the said assailant. Thereafter, accused Pritam was interrogated and his disclosure statement, already Ex. PW2/D, bearing his signatures at point B, was recorded. Thereafter, accused Pritam was arrested by the I.O. vide arrest memo, already Ex. PW1/J, bearing his signatures at point C. Thereafter, accused Pritam was personally searched by the I.O. vide personal search memo, already Ex. PW1/K, bearing his signatures at point C. Accused Pritam was correctly identified by PW7 in the Court. He further deposed that thereafter, medical examination of accused persons were got conducted and after medical examination they came back to Police Station where I.O. recorded their statement. PW7 further deposed that on 25.05.2013, at about 5:00 p.m., I.O. took out accused Sushil from lock up of Police Station Connaught Place and gave in his custody. Constable Deep Chand was with him. Thereafter, he along with I.O. Constable Deep Chand and accused Sushil went to Jhuggi No. 10 of accused Sushil at Palika Dham where accused woke up the boys and out FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 23/41 of said boys, one boy informed that one Ajit was also involved in the fight with constable Deep Chand. The said Ajit was also present there. I.O. apprehended him and on inquiry he revealed his name as Ajit. Constable Deep Chand identified the said assailant. Thereafter, Ajit was interrogated and his disclosure statement, Ex. PW7/A, bearing his signatures at point A, was recorded. Thereafter, accused Ajit was arrested by the I.O. vide arrest memo, already Ex. PW1/L, bearing his signatures at point B. Thereafter, accused Ajit was personally searched by the I.O. vide personal search memo, already Ex. PW1/M, bearing his signatures at point B. I.O. also inquired from accused Ajit about the gold chain of Constable Deep Chand, to which he replied that he lost the same in the market when he was trying to run away from the spot. He further deposed that I.O. informed regarding the arrest of accused Ajit to his brother whose name he did not know. Accused Ajit present in the Court was correctly identified by the witness.
24. During his crossexamination, PW7 Head Constable Satender affirmed that when he reached at the spot the scuffle had already taken place. He further affirmed that no scuffle took in his presence. He had no exact knowledge of the size of the squatters allotted by NDMC to the accused persons. He affirmed that the NDMC officials regularly visit the Kiosks/Squatters allotted to the accused persons and also remove the encroachments made by them and also forfeit their goods/articles. He affirmed that the Hon'ble High Court of Delhi has granted stay to the Kiosks/Squatter holders. He affirmed that all the accused persons were got medically examined by the I.O. and he FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 24/41 accompanied the I.O. for their medical examination. His statement was recorded by the I.O. in the Police Station. He did not remember whether I.O. recorded statements of other witnesses in his presence. He further deposed that aforesaid memos were signed by him at the site of arrest of the accused persons. He did not know whether the accused persons were interrogated at night in the lock up. He even did not remember whether the I.O. had seen the CCTV footage. He volunteered that he had seen the said footage later on but did not know when and in whose presence. The IO did not take the said footage into the CDs in his presence. He further deposed that I.O. did not took the DVR set in his possession. He also did not remember which police person showed him the said footage. He did not remember whether he accompanied the I.O. at the spot after the incident. He reached at the spot before arrival of the I.O. but he did not know when I.O. came to the spot. He affirmed that PCR van reached at the spot and site plan was prepared by the I.O. at the instance of Constable Deep Chand and he was also present there along with other beat staff of Police Station Connaught Place but he did not remember their names. He further deposed that constable Deep Chand physically came to them where he was on duty at Janpath Road Police Booth. He did not remember the beat number where he was deputed. He also did not remember the beat number of constable Deep Chand but affirmed that it was Division No. 4. He denied the suggestion that he was not part of the investigation. He further denied the suggestion that no such scuffle took place between accused persons or constable Deep Chand. He further denied the suggestion that the accused persons were falsely implicated in this case. He further denied the suggestion that he has deposed falsely at FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 25/41 the instance of I.O.
25. Inspector Dinesh Kumar, No. D1549, Posted at Police Station Kashmere Gate, Delhi was examined as PW8. He deposed on oath that on 03.07.2013, he was posted as SubInspector at Police Station Connaught Place. On that day, case file of the present case was marked to him from the first I.O. Thereafter, he prepared the draft charge sheet and sent it to the prosecution for scrutiny. Thereafter, he was got transferred.
26. PW8 was not crossexamined by Ld. Counsel for accused persons despite opportunity being granted to them.
27. SubInspector Surender Sharma, No. D4785, Posted at Crime Branch, Chankya Puri, New Delhi was examined as PW9. He deposed on oath that in the year 2014, he was posted as SubInspector at Police Station Connaught Place and the present case was marked to him for further investigation. Thereafter, he obtained the case file from MHC (R) of the Police Station and tried to search the case property i.e. the gold chain but no clue could be gathered about the same. Thereafter, he prepared the charge sheet and filed the same before the concerned Court through SHO, P.S. Connaught Place.
28. PW9 was not crossexamined by Ld. Counsel for accused persons despite opportunity being granted to them.
29. SubInspector Raj Kumar, No. D3312, Posted as Reader to ACP in the Head Quarter, New Delhi was examined as PW10. He FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 26/41 deposed on oath that on 24.05.2013, he was posted at Police Station Connaught Place as Assistant SubInspector. On that day, he was on emergency duty and was present at Police Station Connaught Place. On that day, D.D. No. 13A relating to quarrel at Janpath near LIC Building was received by him from the concerned Duty Officer and after receiving the same, he along with constable Madan, who joined investigation with him in the present case, reached at the spot where they met H.C. Satyavir and Constable Satender, who informed him about the incident. He also came to know that offender had fled away from the spot and injured Constable Deep Chand was shifted to the hospital by Constable Hans Raj with the help of PCR. Thereafter, he went to Ram Manohar Lohia Hospital alone and left constable Madan at the spot. He found constable Deep Chand admitted in the hospital and also met constable Hans Raj there. Thereafter, he collected his MLC and found that constable Deep Chand was fit for statement. Thereafter, he made interrogation from injured Constable Deep Chand and recorded his statement, already Ex. PW1/A, attested by him at point B. Thereafter, he prepared the rukka and handed over the same to Constable Hans Raj for registration of FIR. Thereafter, constable Hans Raj went to the Police Station and got registered the FIR and after that he came back at the hospital along with copy of FIR and original rukka, Ex. PW10/A, bearing his signatures at point A, and handed over the same to him. Thereafter, he along with Constable Deep Chand and Constable Hans Raj came back to the spot and at the instance of Constable Deep Chand he prepared the site plan, Ex. PW10/B, bearing his signatures at point A. He also made efforts to trace out the accused persons. Accused Sushil and Pawan were caught by FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 27/41 them near Raja Masjid, Janpath Lane at the identification of complainant Constable Deep Chand and both of them were arrested vide arrest memos already Ex. PW1/B and Ex. PW1/C, both bearing his signatures at point D. He also prepared their personal search memos, already Ex. PW1/D and Ex. PW1/E, both bearing his signatures at point D. He also recorded their disclosure statements, already Ex. PW2/A and Ex. PW2/B, both bearing his signatures at point C. Thereafter, he arrested accused Vinod from Indian Oil Building Parking vide arrest memo, already Ex. PW1/G, bearing his signatures at point D. He also personally searched him vide memo already Ex. PW1/H, bearing his signatures at point D. He also recorded his disclosure statement, already Ex. PW2/C, bearing his signatures at point C. Thereafter, he arrested accused Pritam near Toilet, Opposite Bank of Baroda, vide arrest memo, already Ex. PW1/J, bearing his signatures at point D and personally searched him vide memo already Ex. PW1/K, bearing his signatures at point D. He also recorded his disclosure statement of accused Pritam Ex. PW2/D, bearing his signatures at point C. Thereafter, he also seized torn police uniform of complainant/Constable Deep Chand vide seizure memo, already Ex. PW 1/F, bearing his signatures at point C. Thereafter, he took all the aforesaid accused persons for their medical examination and put them behind the bars. Thereafter, he recorded statement of all relevant police witnesses who were performing their duties along with complainant at the time of incident at the spot. He further deposed that on 25.05.2013, at about 6:30 a.m., accused Ajit Kumar was arrested from Jhuggi No. 10, Palika Dham, Gole Market, New Delhi at the instance of coaccused Sushil in the presence of Constable Satender and Constable Deep Chand vide arrest FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 28/41 memo, already Ex. PW1/L, bearing his signatures at point C. Thereafter, he personally searched the accused Ajit vide personal search memo, already Ex. PW1/M, bearing his signatures at point C. He also recorded his disclosure statement, already Ex. PW7/A, bearing his signatures at point B. After medical examination, accused Ajit was put behind the bars. Thereafter, he recorded statements of relevant witnesses and subsequently produced all the accused persons before the Court from where they were sent to Judicial Custody. He further deposed that during investigation, on 05.06.2013, he collected CCTV footage of the incident vide seizure memo, already Ex. PW5/A, bearing his signatures at point B, as he already had given instructions to the concerned official on 24.05.2013, to save the CCTV footage. He also took certificate Under Section 65B of the Indian Evidence Act, already Ex. PW5/B, from Constable Kuldeep Kumar, who was InCharge of said CCTV footage. Thereafter, he was transferred to the aforesaid place so he deposited the present case file to the MHC (R). All five accused present in the Court were correctly identified by this witness. During his examinationin chief, MHC (M) produced one sealed pulanda, sealed with the seal of 'JK' which was in intact condition bearing particulars of the case. The same was opened with the permission of Court and it found containing one white colour polythene bag having one police uniform (shirt), which was in torn condition. On seeing the police uniform, Ex. P2 witness correctly identified the same.
30. During his crossexamination, PW10 SubInspector Raj Kumar deposed that he had been visiting the site of Kiosks run by the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 29/41 accused persons. He denied the suggestion that the NDMC had allotted a space of 4x6 feet to the accused persons to run the Kiosks/Planks. Though, it was not in his knowledge that the Hon'ble Delhi High Court had granted stay to the accused persons to run their Kiosks there. He affirmed that the said space and the Kiosks come under the jurisdiction and purview of NDMC. He further affirmed that the officials of NDMC regularly visit the market and had been instructing the Kiosks owners. He further affirmed that in case the police assistance is required, the NDMC officials called the police. He further affirmed that on the fateful day, police assistance was not called by the NDMC officials. He further deposed that constable Kuldeep handed over him the CD of CCTV footage which was played and seen by him. However, he could not say the exact time of the incident covered in the videos. He further deposed that infact there were three CCTV Cameras but he could not say how much recording was procured and from which camera. He did not seize the DVR set as case property. He affirmed that the said DVD which was handed over to him by constable Kuldeep was intact and he seized the same as it is. He could not say whether the said DVD is clearly visible or not. He denied the suggestion that they did not take into possession the footage of whole incident but picked up the portion which favoured the complainant's case. He further deposed that the torn uniform was handed over to him by Constable Deep Chand at about 3:30 p.m. to 4:00 p.m. He further deposed that constable Deep Chand was wearing the police uniform in the hospital in his presence. The pocket of the police uniform was torn, 23 front side buttons were broken and one shoulder flap was not there. He was not sure whether the badge of police uniform was torn FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 30/41 or not. He was also not sure as to which side pocket was torn. He further deposed that rest of the portion of the police uniform and whistle dory was ok and in wearing condition. He further deposed that either of the pockets were not torn and one side badge was missing. He affirmed that accused persons were also admitted by him in the Ram Manohar Lohia hospital after their arrest and their MLCs were also prepared. He further affirmed that accused Pawan, Vinod, Pritam and Sushil were arrested on the same day and were taken to the Police Station. He further deposed that he did not examine any public witness though public persons were gathered there, however, attempt was made by him but they refused and left the place without disclosing their particulars. He denied the suggestion that Constable Deep Chand and other police officials were asking to purchase the readymade garments from the accused persons free of cost which was denied by them and that is why they were beaten by Constable Deep Chand and thereafter, he called other beat staff i.e. Constable Hans Raj, Constable Satender and Head Constable Satyavir who gave beatings to the accused persons to teach them a lesson. He affirmed that no previous criminal record of the accused persons was present. He denied the suggestion that he did not investigate the case fairly or that the accused persons were falsely implicated in this case.
31. Shri Pawan Kumar, Additional DCP, South District, New Delhi was examined as PW11. He deposed on oath that in the year 2013 he was posted as ACP Connaught Place and during the course of his duty, he received certain documents such as charge sheet, copy of FIR, original Tehrir, site plan, seizure memo of uniform (shirt), disclosure FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 31/41 statement, copy of D.D. entries, arrest memos, personal search memos, JC remand forms, copy of statements, MLC, conviction slip, seizure memo of CCTV footage and CD. Thereafter, he gone through with the said documents and after analyzing the material on record, he gave complaint Ex. PW11/A, bearing his signatures at point A, under Section 195 of Cr.PC before the concerned Court for prosecution of all the accused persons.
32. During his crossexamination, PW11 deposed that I.O. had briefed him the case before he had given the complaint under Section 195 of Cr.PC. Moreover, he had thoroughly gone through the contents of the documents placed before him before granting the same. He could not recollect whether I.O. had told him regarding the MLCs of accused persons of Ram Manohar Lohia Hospital on the fateful day. He affirmed that MLCs of accused persons were not relied upon by him while granting sanction as the same were not placed before him by the I.O.
33. In their joint statement recorded voluntarily without any fear, coercion or threat, under Section 294 of Cr.PC, all the accused persons admitted genuineness of MLC No. E20130308518 dated 24.05.2013 of Constable Deep Chand, Ex. A1, and D.D. Nos. 20B and 32B, both dated 24.05.2013 of Police Station Connaught Place as Ex. A 2 and Ex. A3 respectively without admitting contents thereof. They have expressed no objection if these documents are read in evidence. In view of their joint statement, examination of relevant witnesses was dispensed with.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 32/4134. After completion of evidence of all the PWs, P.E. was closed.
35. Statement of all the accused persons were recorded under Section 281 read with Section 313 of Cr.PC on 18.08.2022. Accused persons stated that they are innocent and have been falsely implicated in the present case and they have no connection with the present case in any manner, whatsoever. They further stated that they did not wish to lead any evidence in their defence.
36. Thereafter, the matter was fixed for final arguments.
37. Final arguments were advanced by Ld. APP on behalf of State as well as by Ld. Counsel for all accused persons.
38. Ld. APP for the State submitted that the prosecution has proved its case beyond reasonable doubt and all the witnesses have invariably supported the case of the prosecution.
39. Per contra, it was submitted by Ld. Counsel for the accused that the story of the prosecution suffers from material inconsistencies and the case has not been proved beyond reasonable doubt.
40. The fundamental rule of criminal law postulates that the burden of proving the case rests on the shoulders of the prosecution. In a nutshell, the case of the prosecution is that on 24.05.2013 at about 11:20 FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 33/41 a.m. in Janpath Market near DFMD Barricades, Bank of Baroda Side, Connaught Place, New Delhi all accused persons along with their other unidentified associates formed an unlawful assembly and in prosecution of the common object of unlawful assembly, voluntarily obstructed the complainant/Constable Deep Chand, a public servant, in discharge of his public function i.e. to maintain law and order and assaulted him, thereby causing simple hurt to him with an intent to prevent and deter him in the lawful discharge of his duty, and thereby they all committed offences punishable under Sections 149, 186, 332 & 353 of the Indian Penal Code. Further, at the same time, the accused persons were also charged for snatching a gold chain weighing 8 grams from the neck of complainant and committing the offence punishable under Section 379 of IPC.
41. I may briefly lay down the ingredients required for proving the offences under question. For bringing home the charges under the aforesaid provisions of IPC, it is essential that -
(a) An act by which a person has obstructed the public servant in discharge of his duties;
(b) The act must have caused hurt to the public servant in order to deter him from his duty;
(c) Use of assault or criminal force to deter the public servant from discharging his duties.
42. It is the foremost requirement of criminal law that the prosecution must establish three essential attributes - actus reus, mens FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 34/41 rea and causal link between the crime and accused on trial.
43. The prosecution has examined eleven witnesses in this case. All the PWs, except the complainant PW1, entered into the scene after the commission of the offence. In other words, they all were accessories after the fact. None of the witnesses have even claimed to be eye witnesses of the incident. Pertinently, all the witnesses are police witnesses who formed a part of the team on duty on the date of incident. Though, the factum of beating the complainant by accused Pawan along with his brother Sushil is clearly visible but the involvement of other accused persons is unclear in the CCTV footage.
44. The star witness of the prosecution is the complainant/victim in the present case who has been examined as PW1 in the case. He has categorically deposed that he was working as a part of the beat in Division IV of the date of incident and while he was performing his duties, a scuffle took place wherein he was beaten by an unlawful assembly of persons working at the Teh Bazari. He further deposed that the accused Pawan and Sushil were a part of the group and the same was corroborated by the CCTV footage wherein the faces of the said accused persons could be identified when the footage was played in the Court. The fact of beating the victim is fairly clear and the actus reus required for the offences in question stand proved. Moreover, it is fairly clear from the testimonies of the PWs that the complainant was discharging his duties as a beat officer at the time of incident. During the cross examination, efforts were made on behalf of the accused to enquire FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 35/41 whether it was the job of NDMC to remove the squatters. PW2 deposed that NDMC also used to come to check any encroachment, but Delhi Police also used to fine the violators under the Delhi Police Act. Be that as it may, the victim was a beat constable and was performing his duties as per the directions received by him from his superiors. It was not for the accused persons to take law in their hands, as clearly discernible from the footage which shows an unlawful assembly of which accused Sushil and Pawan form a part. Moreover, the torn uniform seized in the investigation was produced in the Court and was identified by the victim as the uniform worn by him on the date of incident. The uniform is a symbol of a police officer on duty and the same is reflective of the manhandling and assault committed upon the victim. The CCTV footage in this case meets the criteria of best evidence and corroborates the testimony of the star witness.
45. With the permission of the Court, CCTV footage contained in the compact disc, sealed with the seal of J.K., was played showing the time as 11:18 a.m. and date as 24.05.2013 with police barricade and DFMD. Complainant/Constable Deep Chand surrounded with 45 persons was seen therein and being beaten up badly and thrown on the ground but faces of the assailants were not clear. However, in the second video clip accused Pawan was clearly visible and he was seen beating Complainant/Constable Deep Chand along with his brother Sushil but faces of other assailants were not clear. After perusal of the compact disc, it was crystal clear that complainant/Constable Deep Chand was beaten up by the accused persons Sushil and Pawan, and later he was taken away FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 36/41 from the spot.
46. I may also note that no endeavour has been made to involve public witnesses in this case. The importance of public witnesses in such cases has been highlighted time and again by the Hon'ble High Court. In Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
47. The legal position, as settled, is that as a matter of prudence, the investigating officers must look for independent witnesses to corroborate the factum of commission of offence. The absence of any independent witnesses may not per se vitiate the entire case of the prosecution if the same can be duly explained. I may usefully refer to the decision of the Hon'ble Supreme Court in Tahir v. State (Delhi) (1996) 3 SCC 338 wherein the Court noted that although there is no rule of evidence that conviction cannot be based on the sole testimony of police officials, however, prudence demands a more careful scrutiny of the testimonies of police officials as they may be considered to be interested in the outcome of the case. The rule of prudence requiring independent witnesses is born out of this careful scrutiny and requires that in cases, FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 37/41 when the timing of the offence and surrounding circumstances indicate that it was fairly possible for the investigating officer to procure independent witnesses, and he failed to do so nonetheless, the case of the prosecution would meet a reasonable doubt in the eyes of the law, and the benefit shall accrue to the accused.
48. In this case, the absence of independent witnesses, in my considered opinion, would not vitiate the entire case of the prosecution. For, the testimony of victim is trustworthy and has been duly corroborated by the CCTV footage. Once the testimony of police witness is duty corroborated, there is no reason for this Court to throw it away. Ultimately, it is the judicial satisfaction of the Court which is essential. More so, the police witness is not an ordinary witness, he is the victim himself and injuries caused to his morale and body cannot be sidelined merely because he was in the police service. The factum of hurt, the victim being a public servant, the victim being on duty at the time of incident, use of criminal force upon the victim and the consequential effect of deterring him from the discharge of his duties have been established by the prosecution beyond reasonable doubt. Moreover, it is the admitted position that the accused persons were running their teh bazari shops and the scuffle ensued when the victim tried to stop them from extending their shop beyond the specified limits on the public way. Thus, the intent behind the entire act committed by the accused persons was to deter him from performing his duties and the element of mens rea also stands proved to the satisfaction of the Court. No doubt, one of the most integral elements of criminal liability is the connection between the FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 38/41 accused and the criminal act. This causal link has been established by the prosecution by exhibiting the CCTV footage wherein the accused persons namely Sushil and Pawan could be recognized beyond any doubt.
49. The underlying theme behind the law of evidence is the judicial satisfaction of the Court. There is no rigid rule of law that shuns the testimonies of police officials, however, the evidence on record must inspire confidence of the Court and inconsistencies must be explained to the satisfaction of the Court. Wherever judicial conscience requires due corroboration of the evidence of the police officials and it is not forthcoming, the burden of proof on the prosecution falls short of a complete discharge. In this case, due corroboration has been made of the testimonies of the PWs, particularly of PW1, and judicial satisfaction has been met.
50. Although the prosecution has established its case against the accused Sushil and Pawan, it has miserably failed to establish the case against the other accused persons, primarily because of the absence of any public witness. All the PWs, except PW1, entered the scene of crime after the commission of the offence and they only effected the arrests later or witnessed them. The disclosures statements of the accused persons recorded u/s 161 Cr.P.C. are inadmissible. The testimony of PW 1, qua other accused persons, has not been corroborated by any evidence. Moreover, the accused Pritam was admittedly on wheelchair and no person on wheelchair is visible in the footage of the incident. Due to the absence of any material public witness in this case, the testimony of PW FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 39/41 1 as regards the involvement of other accused persons fails to inspire the confidence of the Court and deserves to be rejected.
51. Before parting, I am constrained to note that the investigating officers are increasingly being careless in involving any independent public witnesses. The involvement of independent public witnesses has been reiterated time and again by the Constitutional Courts. Despite clear directives, in most of the cases, all the witnesses are found to be police officials. Moreover, the IOs record no reasons as to why any independent public witnesses were not involved in the investigation, specifically in the immediate aftermath of the offensive act. To add to it, more often than not, the circumstances of crime indicate the presence of independent public persons at the scene of crime, and despite that, no endeavor is made for involving them. A blunt statement that none of the persons agreed to join the investigation is extended, without any further information. The present case is a classic case to demonstrate how the absence of independent public witness could have been fatal to the entire case of the prosecution, had there been no CCTV footage. Thus, the I.O.s need to be sensitized in this regard. I consider it fit to send a copy of this order to the Commissioner of Delhi Police, Jt. Commissioner (Legal), New Delhi District and DCP, New Delhi District to consider the enactment of a Standing Order laying down clear instructions for the IOs to make proper investigation in case. The instructions must also lay down the consequences for not adhering to the same. Furthermore, an endeavour must be made to sensitize the public persons of their responsibility to assist the investigating officers when called upon to do FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 40/41 so. Doing so, in my view, would greatly advance the efficacy of investigations.
52. In view of the aforesaid discussion, I am of the considered view that the prosecution has successfully proved its case against accused Pawan and Sushil. However, it has miserably failed to prove the guilt of remaining accused persons beyond reasonable doubt. Accordingly, the accused Pawan and Sushil are convicted for the offences punishable under Sections 186, 332, 353 & 34 IPC. However, the remaining accused persons stand acquitted from the charges leveled against them. Previous bail bonds of remaining accused persons, except the accused Pawan and Sushil, stand cancelled. Their surety stands discharged. Let fresh bail bonds be furnished in compliance of Section 437A Cr.P.C.
53. Let the original documents lying on the record of this file, if any, be released to the acquitted persons.
YASHDEEP Digitally signed by YASHDEEP
CHAHAL
CHAHAL Date: 2023.02.24 16:10:41 +0530
Dictated directly into the computer (YASHDEEP CHAHAL)
and announced in the open Court, M.M.01 : New Delhi District
On 24th February, 2023. Patiala House Courts : New Delhi.
FIR No. 78/2013 State Vs. Pawan Kumar @ Machu & Others Page No. 41/41