Delhi District Court
State vs . Ajay & Ors on 13 February, 2020
IN THE COURT OF SH. DEEPAK KUMARII, METROPOLITAN
MAGISTRATEVI, DWARKA COURTS, NEW DELHI.
FIR N9. 72/11
PS. Dwarka North
U/S. 186/341/332/353/394/506I/34 IPC
State vs. Ajay & Ors
JUDGEMENT
A. SL. NO. OF THE CASE : 422387/16
B. DATE OF OFFENCE : 01.04.2011
C. DATE OF INSTITUTION : 12.12.2012
D. NAME OF THE : ASI Bajrang Lal No.
COMPLAINANT 3090/SW
E. NAME OF THE ACCUSED : 1) Ajay S/o Sh. Surender
PERSONS Singh R/o House No. D38,
Bharat Vihar, Village
Kakrola, New Delhi.
2) Surender Singh S/o Sh.
Jai Singh R/o House No.
258, Kakrola Housing
Complex, New Delhi.
3) Vijay Kumar S/o Sh.
Ramesh Chand R/o
House No. A84, Shivani
Enclave Kakrola, New Delhi.
4) Sunil S/o Sh. Banney
Singh R/o House No. 57
Village Kakrola, New Delhi.
FIR No. 72/11
PS. Dwarka North
U/s. 186/341/332/353/394/506I/34 IPC
State Vs. Ajay & Ors Page no. 1/26
F. OFFENCE COMPLAINED OF : U/s 186/341/332/353/394/506
I/34 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal.
I. DATE OF SUCH ORDER : 13.02.2020.
Brief statement of reasons for decision
1. Briefly stated the facts of the case as unfolded from the chargesheet are that on 01.04.2011 at about 11:00 PM complainant was restrained by all the accused persons in furtherance of their common intention at a Dhaba at Peepal Chowk, Kakrola and prevented him from leaving the said Dhaba. It has also been alleged that the complainant was threatened that he shall not be allowed to leave the Dhaba unless the owner of the Dhaba serves food to them and one of the accused persons had also snatched the mobile phone from the complainant. It has also been averred in the chargesheet that all the accused persons gave beatings to the complainant and furthermore he was prevented from discharging his duties as a public servant and thus, all the accused persons committed offences punishable under section 186/341/332/353/394/506I/34 IPC. The present FIR was registered in pursuance of DD No. 4A dated 02.04.2011. During the course of investigation the complainant was medically FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 2/26 examined, site plan was prepared, accused persons were apprehended and arrested, statement of witnesses were recorded, case property was got recovered and other steps were taken towards the culmination of the investigation. On conclusion of investigation, the present challan under the aforesaid sections was filed in the court.
2. Accused persons were summoned by the Ld. Predecessor of this court for facing trial of the present case. In compliance of Section 207 CrPC., the copy of the challan and the documents annexed therewith were supplied to accused persons. Prima facie charge under section 186/341/332/353/394/506I/34 IPC IPC was made out against the accused persons. Accordingly, on 16.12.2013 the charge was framed against all the accused persons, to which they pleaded not guilty and claimed trial. It is noted that in the charge the offence has been mentioned as 352 IPC instead of 353 IPC. Furthermore, in the daily order of the same date the said discrepancy can be found there also. It seems that the same is typographical error as in the charge framed the ingredients are for the offence punishable under section 353 IPC and not of section 352 IPC. It is also noted that during the recording of evidence neither during the course of final arguments it was pointed out by the counsels for the parties that the charge framed is faulty. Hence, in view of the aforesaid it is assumed FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 3/26 that the charge has been framed for the offence punishable under section 353 IPC and not for offence punishable under section 352 IPC in addition to other offences. Thereafter, the case proceeded for prosecution evidence. In the instant case, twelve prosecution witnesses have been examined.
3. PW1 Ct. Anil deposed that on 01.04.2011 he was posted at PS Dwarka North as constable and on that day he was on emergency duty; he alongwith ASI Bajrang Lal went for attending the PCR call at Bharat Vihar, Sector15 and when they reached Peepal Chowk, ASI Bajrang Lal instructed him to reach the PS and they stopped at Peepal Chowk for dinner; thereafter he came back at the PS and IO recorded his statement.
4. In his cross examination he deposed that he alongwith ASI Bajrang Lal went to attend a call vide DD No. 38A; IO set him free from the Peepal Chowk at about 11:00 PM; he attended the call with the IO on his vehicle but he do not know the type of vehicle; he came to the PS by taking lift from someone; thereafter he did not met with the IO; he do not remember whether his statement was recorded in this case by IO or not.
5. PW 2 Gokul Chand is the public witness and he has not supported the case of prosecution and failed to identify the accused persons. As the witness was resiling from his previous FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 4/26 statement therefore, he was permitted to be cross examined by Ld. APP for the state wherein also nothing incriminating about the accused persons or about the incident could be extracted from him. He was not cross examined by the defence counsels despite opportunity being afforded to them.
6. PW3 HC Mahavir Singh deposed that on 02.04.2011 he was posted at PS Dwarka North as Duty officer from 12:00 midnight to 8:00 am; on that day, at 3:30 am, on receipt of tehrir sent by SI Jagdish, brought by Ct. Rajesh, he recorded FIR No. 72/11, u/s 353/186/332/382/506 IPC in the present case; computer generated copy of FIR is Ex.PW3/A (OSR); after registration of FIR, he made endorsement Ex.PW3/B on the rukka and handed over the same to Ct. Rajesh for handing it over to SI Jagdish. Nothing material came on record during the cross examination of this witness by the respective Ld. Counsels for accused persons.
7. PW 4 ASI Bajrang Lal deposed that on the intervening night of 01/02.04.2011 he was posted at PS Dwarka North and was on emergency duty from 8.00 pm to 8.00 am; on that day at about 10.50 pm he received DD No. 38A, Mark X, regarding quarrel at Bharat Vihar; on receipt of the same he reached at the spot alongwith Ct. Anil Kumar, however no quarrel was found at the spot; thereafter, Ct. Anil went to the police station and he went to FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 5/26 Nepali Dhaba at Peepal Chowk, Kakrola, New Delhi for dinner; four boys came there in a car and they asked the owner of the Dhaba for dinner; the owner of the Dhaba refused to give them dinner as the same was finished; thereafter, all the four accused persons told the dhaba owner, pointing towards him, that how he was taking dinner; thereafter, he got up and was coming out of the dhaba; at that time, all the four accused persons stopped him and asked him to tell the dhaba owner to provide food to them; when he refused, the accused persons started abusing and beating him; they told him for what the police is being paid salary; he made a call at PS from his mobile phone and one of the accused snatched his mobile phone from him; the accused persons continued to give beatings to him; in the meantime, police reached at the spot; on seeing the police the accused persons tried to ran away from the spot; he caught hold of two accused persons and the remaining two accused persons managed to flee from the spot; both the accused persons were produced before SI Jagdish whose names later on he came to know as Ajay and Surender; SI Jagdish had sealed his torn uniform with the seal of JS; he do not remember the exact initials of the seal; his torn uniform was seized vide memo Ex.PW4/A; he got himself medically examined from DDU hospital; IO recorded his statement which is Ex.PW4/B and prepared a rukka and got the case registered; thereafter they came back at the police station; later on he came to know that accused Sunil had got FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 6/26 anticipatory bail and his mobile phone was recovered by the IO and same was seized vide memo Ex.PW4/C; on the day of incident i.e. 02.04.2011, IO had prepared site plan at his instance and the same is Ex.PW4/C; on 03.04.2011, he had joined the investigation alongwith IO and IO had taken PC remand of accused Ajay; during the PC remand of accused Ajay, accused Vijay was arrested from his house vide arrest memo Ex.PW4/D; on 28.05.2011, accused Sunil was formally arrested vide memo Ex.PW4/E; all the accused persons correctly identified by this witness; arrest memos of accused Ajay and Surender are Ex.PW4/F and Ex.PW4/G; his mobile phone which was snatched by the accused persons was having the SIM No. 9953489791 (the SIM was in the name of his relative namely Rakesh) was recovered from one person, namely, Ram Chander r/o Shivani Enclave and he had identified his mobile phone which was seized vide memo is Ex.PW4/C; he had not given the copy of the bill to the IO as the same was misplaced from him; the said mobile phone was purchased by him from Vikas Puri; he correctly identified the uniform/shirt as the same which he was wearing at the time of incident and the same is Ex.P1 (colly); he also correctly identified the mobile phone produced in unseald condition as Ex.P2.
8. In his cross examination he deposed that on the day of incident, he had left the PS at about 10.40 pm on receipt of DD FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 7/26 No. 38 A; when he reached the spot from where call was made but none was found there; the person who made the call which was recorded vide DD no. 38A was not found at the spot but his mobile number was mentioned in the DD; he do not remember the said mobile phone number; he tried to make a call to the caller of DD no. 38A but the mobile phone was found to be switched off; from the spot, he had not telephonically narrated the facts regarding the call to the DO or to the SHO; from the spot he did not go to the PS; he admitted that they have mess facility in the PS; it took about 2 minutes in reaching the spot of DD no. 38A and he remained there for about 2 minutes; the Dhaba is just adjacent to the spot of DD no. 38A; within 10 minutes he reached at the spot from the PS and from the spot to the Dhaba; they both left the PS on a motorcycle; he went to the spot on his motorcycle bearing registration number 5101; he did not know the accused persons prior to the incident; initially the accused persons had an altercation with the Dhaba owner and thereafter they had an altercation with him; accused persons had reached the spot in a white colour car; he do remember the make and number of that car; at that time, the Dhaba owner was serving food to him and in the meanwhile the accused persons asked the Dhaba owner to serve food to them also; he could not eat the food as the quarrel was initiated; he had told the IO that he could not have his food as in the meantime, the accused persons had initiated the quarrel with him; (confronted with statement Ex.PW4/B where it is so FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 8/26 recorded); he had not made any call to the police when the accused persons were quarreling with the Dhaba owner, as he did not got the time for that; he had not made any call to 100 number on that day regarding the incident; someone else had informed the police regarding the incident; he do not remember the name and address of the said person today; the accused persons kept beating him for about 23 minutes; he had not pointed out/identified to the IO as to which of the accused person had snatched his mobile phone; he did not got issued a fresh SIM in place of the SIM which was in the snatched mobile phone; the PCR as well as the local police reached at the spot simultaneously; from the police station, IO SI Jagdish along with a constable had reached at the spot; the other two coaccused ran away from the spot on foot and the vehicle in which the accused persons had come to the spot was left by them at the spot; after handing over the two accused persons, who were caught by him at the spot, to the IO, he went to DDU hospital for his medical examination in the PCR van; none from the police station accompanied him to DDU Hospital; one constable had accompanied him to the DDU hospital in the PCR, he came back from DDU hospital to spot at about 3.454.00 am in the govt. gypsy which was sent by the SHO; at that time, IO met him at the spot; his statement was recorded by the IO under the street light at the spot; public persons were present at the spot at the time of incident; he do not remember whether IO recorded the statement FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 9/26 of any other public person on that day; the IO arrested the accused persons on that day and except that no investigation had been carried out by the IO in his presence on that day; he had not visited the place of incident for the purpose of investigation in this case; two of the accused persons were arrested by the IO on the day of incident after he reached the spot at about 3.454.00 am; he do not remember whether IO obtained his signatures on the arrest memo or not; arrest memos of accused Ajay and Surender does not bears his signatures; his snatched mobile phone was not recovered from any of the accused persons; he do not know whether the IO had put his mobile phone on surveillance for the purpose of recovery; the said mobile phone was produced before the IO by one Ram Chander S/o Paltu on 06.12.2011 and the same was identified by him; the said Ram Chander was not arrested by the IO; he do not know as to how the mobile phone was found in possession of said Ram Chander; he did not disclose anything about this in his presence; the said person came to the PS in his presence before the IO; when he had handed over his uniform to the IO, his name plate was affixed on the same; the uniform Ex.P1 was shown to the witness and on seeing the same, the witness stated that his name plate is not affixed on the uniform/shirt Ex.P1.
9. PW5 Ct. Prem Parkash deposed that on 06.12.2011, he was posted at PS Dwarka North as constable; on that day he FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 10/26 joined the investigation of present case with IO/SI Jagdish Chander and reached at house no. A141, PartII, Shivani Envclave, Karola, New Delhi where one Ram Chander S/o Paltu met them; IO interrogated Ram Chander and on interrogation, he produced one Nokia Mobile Phone Sim No. 9953489791 and Ram Chander told the IO that he had found the said mobile phone on 01.04.2011 near Peepal Chok, Bahadur Dhaba, same was seized vide memo Ex.PW4/C; IO recorded his statement; this witness correctly identified the case property i.e. mobile phone and sim card and same is Ex.PW5/1 (colly).
10. In his cross examination he deposed that the mobile phone was seized by the IO in his presence with the seal of 'JC'; on the day when he accompanied the IO i.e. 06.12.2011 DD entry was recorded by the IO in the DD/ register; he know about the case in which he accompanied the IO; IO had not served any notice to the person from whom the mobile phone was recovered nor he brought him to the PS; it is correct that the place from where the mobile was seized is populated; it is correct that except him and IO had not asked any public person to join the investigation for the purpose of recovery.
11. PW6 Ct. Sushil Kumar deposed that on 01.04.2011, he was posted at PS Dwarka North as constable; on that day he was on patrolling duty and during that one person met him and told him FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 11/26 that a quarrel is taking place at Peepal Chowk, Bharat Vihar, New Delhi; on receipt of the said information, he reached at the spot where ASI Bajrang Lal was found present and he was having injuries and his uniform was also torn; ASI Bajrang Lal told him that four boys had quarreled with him and had given beatings to him; ASI Bajrang Lal further told him that two of those boys had run towards Tara Nagar and two had run towards Bharat Vihar; he chased the boys who had fled away into a street towards Tara Nagar and when those boys fell on the road, he caught hold of them; he brought them to the spot where SI Jagdish had already reached; the names of those boys revealed as Ajay and Surender and he correctly identified them; thereafter he left the spot; on 03.04.2011, he again joined the investigation with the IO; during interrogation accused Ajay made a disclosure statement is Ex.PW6/A; thereafter accused Ajay got arrested accused Vijay from Peepal Chowk vide arrest memo Ex.PW4/D and disclosure statement of is Ex.PW6/B.
12. In his cross examination he deposed that he was not having any particular duty timings as he was posted in a beat as Beat Constable and when he received the information he was at a distance of about one kilometer from the spot; he received the information at 11:00 PM; on its receipt he did not made a call on 100 number nor did he informed the concerned police station; the information was given to him by a biker; he never gave intimation FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 12/26 regarding the incident to any senior officer or on 100 number; during patrolling his mobile phone was with him; when he reached the spot he saw the boys running from the spot and they were at a distance of 2030 meters from him; when he stopped his motorcycle ASI Bajrang Lal told him about the incident and he chased the boys; he did not made any DD entry regarding the apprehension of boys by him during his patrolling hours; SI Jagdish had reached the spot in his presence accompanying a constable on his motorcycle; however he do not remember as to whether any PCR Van reached the spot in his presence or not; he handed over the custody of accused persons apprehended by him to SI Jagdish and thereafter he left the spot for patrolling; he do not remember the exact date when he met the IO/SI Jagidsh in relation to the present case after the date of incident except on 03.04.2011; his statement was recorded by IO on 03.04.2011; he again said that his statement was recorded by IO on 02.04.2011.
13. PW7 Ram Chander deposed that on 01.04.2011 at about 12:00 mid night, he was going to his house from his factory situated at Karola; he reached at the Peepal Chowk in front of Nepali Dhaba where he found one Nokia Mobile Phone of Black and Grey colour; he picked up the mobile and start using it after putting his Sim card no. 9540088078; later on he came to know that this phone belonged to a police official; police met him and got recovered the mobile phone from him and seized the same FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 13/26 vide seizure memo already Ex.PW4/C; he also showed the place to police where he found the mobile phone; this witness correctly identified the case property. This witness was not cross examined by the defence counsels despite opportunities being afforded to them.
14. PW8 Ct. Rajesh deposed that on 01.04.2011 he was posted at PS Dwarka North as constable and on that day he was on night emergency duty from 08:00 pm to 08:00 am; at about 11:00 pm DD No. 40A was received by SI Jagdish Chander; he alongwith SI Jagdish Chander reached at the Nepali Dhaba, Peepal Chowk where ASI Bajrang Lal met them; he produced two accused whose names were revealed as Ajay and Surender; he correctly identified both the accuse persons namely Ajay and Surender; at that time he saw that the police uniform of ASI Bajrang Lal was in torn condition and he himself was in injured condition; IO recorded his statement; he alongwith SI Jagdish Chander, ASI Bajrang Lal and both accused persons namely Ajay and Surender went to DDU hospital where medically examination of ASI Bajrang Lal and both the accused person were got conducted; IO prepared rukka and handed over to him for registration of FIR and after registration of FIR he returned to the spot and handed over the copy of FIR and original rukka to IO SI Jagdish Chander; accused Ajay and Surender were arrested vide arrest memo already Ex.PW4/F and PW4/G and their personal FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 14/26 search was got conducted vide memos Ex.PW8/A and Ex.PW8/B respectively; IO recorded disclosure statement of accused persons; thereafter torn police uniform of SI Bajrang Lal was put in white colour pullinda and same were sealed vide seizure memo already Ex.PW4/A; case property was deposited in malkhana; he correctly identified the case property and same is already Ex.P1.
15. In his cross examination he deposed that he had seen the incident personally; 23 public persons were present in the Dhaba when they reached the spot; IO inquired from the owner of the Dhaba and his employees and their statements were also got recorded; he reached the spot at about 11:0011:15 pm and remained at the spot for 3040 minutes; after the medical examination they returned to the spot at about 01:3002:00 am and stayed till about 05:00 am; he do not remember the exact time when the rukka was handed over to him by the IO; he do not remember whether the Dhaba was open till 05:00 am or not; he do not remember whether any car with broken glasses was parked there; IO did the paper work at the spot on the table and chair of the Dhaba; Dhaba was on the road and the table and chair was not locked by the owner of the Dhaba; he do not know whether IO clicked the photographs of the spot at that time; he went to the spot alongwith IO on motorcycle of the IO whose number he do not remember.
FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 15/26
16. PW9 Desh Raj, Record Clerk, DDU hospital deposed that he has been working as a clerk in DDU hospital since the year 2000; he can identify the handwriting and signatures of Dr. Anoop and Dr. Alok as he has seen them writing and signing in due course of their duties; both the doctors have left the hospital; MLC No. 6096/11 was made by Dr. Alok and thereafter patient ASI Bajrang Lal was referred to Ortho department, where he was examined by Dr. Anoop vide MLC No. 6096/11 is Ex.PW9/A bearing the signatures of Dr. Anoop and Dr. Alok at point A and B respectively. Nothing incriminating has come on record during the cross examination of this witness.
17. PW10 Chandra Shekhar, Nodal Officer Bharti Airtel Ltd proved the customer application form of mobile number 8527624171 as Ex.PW10/A (colly); certificate under section 65B of the Indian Evidence Act is Ex.PW10/B; cell Id chart is Ex.PW10/C (colly) (in 21 pages). This witness was cross examined as nil opportunity given.
18. PW11 Retired SI Jagdish Chander deposed that on 01.04.2011, he was posted as SI in PS Dwarka North; he received DD No. 41A and the same is Mark A; thereafter, at about 11:00 pm he alongwith Ct. Rajesh went to the spot i.e Dhaba at Peepal Chowk, Kakrola; ASI Bajrang Lal was found in injured condition and his uniform was torned; ASI Bajrang Lal FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 16/26 herein complainant and produced two persons before him who had quarreled with him; he correctly identified those two accused persons namely Ajay and Surender; he recorded the statement of the complainant as complaint and same is already Ex.PW4/B; he took two persons produced by the complainant and complainant to DDU hospital for their medical examination; MLC of complainant is already Ex.PW9/A; thereafter they all returned to the spot; on 02.04.2011 he sent Ct. Rajesh with the endorsed statement of the complainant with tehrir for registration of FIR and FIR is already Ex.PW3/A; Ct. Rajesh returned after registration of FIR; he prepared the site plan at the spot at the instance of complainant; he inquired the abovementioned two accused persons; thereafter he arrested the abovementioned two accused persons vide memo already Ex.PW4/F and Ex.PW4/G and he personally searched both of them vide memo already Ex.PW8/A and Ex.PW8/B; he wrote the disclosure statement of Ajay which is already Ex.PW6/A; he took the possession of the uniform vide seizure memo already Ex.PW4/A; application seeking PC remand of accused Ajay and JC remand of accused Surender is Ex.PW11/A; on 03.04.2011 at the pointing out of accused Ajay he arrested accused Vijay vide arrest memo already Ex.PW4/D and his personal search memo is Ex.PW11/B; CDR of mobile number 9953489791 is Mark B (running into four pages); personal search memo of accused Sunil is Ex.PW11/C; disclosure statement of accused Sunil is Ex.PW11/D; MLC of complainant is already FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 17/26 Ex.PW9/M; he seized nokia mobile number 9953489791 vide seizure memo already Ex.PW4/C from Ram Chander at Shivani Enclave near Kakrola; he recorded his statement.
19. In his cross examination on behalf of accused Vijay Kumar he deposed that he was not present at the time of incident and he reached there after 20 minutes; he met accused Ajay and Surender at the spot; remaining accused persons were not present.
20. In his cross examination on behalf of remaining accused persons he denied that one car with broken windscreen was stationed at the spot when he reached there; no public persons were available at the spot except the complainant; again said one public person was present at the spot; he was not able to record his statement; he denied that Dhaba owner and his employees were present at the spot when he reached there; complainant was unable to provide the bill of mobile phone; as per the verification done by him; the complainant was not the owner of the phone and he had taken the same in the name of his friend; he had recorded the statement of that friend; inadvertently he was cited as witness in the present case; he first recorded the statement of complainant; he remained at the spot initially for one hour; thereafter he left the spot for medical examination of complainant; after that he came back to the spot, prepared rukka FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 18/26 and sent the same for registration of FIR; he do not remember the exact time when he reached the hospital; they reached the hospital in a private tempo whose registration number who do not remember; he had not recorded the statement of tempo driver; he remained at the spot for second instance till 06:00 Am; accused Ajay and Surender were arrested from the spot by him and their respective arrest memos were prepared there only; he had told the SHO to put the mobile phone, which was snatched, on surveillance; he had not given any written letter to SHO in this regard neither he remember as to whether the same was put on surveillance by the SHO or not; on 06.12.2011 the said mobile phone was recovered from Ram Chander; he admitted that he had not arrayed him as an accused in the present case; he came to know from the statement of Ram Chander that he has been using the said phone for past six months; during investigation he did not check whether the phone was switched off or not; he denied that the said phone was planted on the accused persons to make the case a heinous one; he do not remember whether he had collected any mobile bill which was snatched; the mobile phone belong to one Rakesh who is relative of complainant; he denied that ASI Bajrang Lal had damaged the car of accused Surender, which was also brought to the PS on the complaint of accused Surender; he further denied that the factum of car of Surender has not been intentionally revealed during the investigation of the present case.
FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 19/26
21. PW12 Retd ACP Samay Singh Meena deposed that in the year 2012 he was posted as ACP, Dwarka SubDivison, SW District, New Delhi; on 08.10.2012 IO/SI Jagdish Chander came to his office with the case file of the presnet case alongwith an application seeking complaint under section 195 CrPC; he perused the file and thereafter prepared the complaint under section 195 CrPC which is Ex.PW12/A and handed over the same to SI Jagdish Chander to file the same in the court. Nothing material has come on record during the cross examination of this witness.
22. Accused persons in their joint statement recorded under section 294 CrPC on 21.01.2019 admitted the DD No. 41A, DD No. 38A, CDR of mobile number 9953489791 as Ex.P/A/1 to Ex.P/A/3 (colly). Thereafter, prosecution evidence was closed and on 17.12.2019 statement of all the accused persons under section 313 CrPC r/w 281 CrPC were recorded. In the said statement all the incriminating evidence against the accused persons were put to them for their explanation. Accused Sunil and Vijay stated that they have been falsely implicated in the present case as they were not present at the spot. Accused Ajay stated that he has been falsely implicated in the present case by the police officials and that at about 08:30 pm he had gone to the spot for buying meal and that he was beaten by the persons FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 20/26 present there. He also stated that police officials were present at the spot in civil attire and they call some more police officials at the spot. Accused Surender stated that he has been falsely implicated in the present case by the police officials and that at about 08:30 pm he had gone to the spot for buying meal. He further stated that his vehicle was damaged and he sustained injuries on his forehead given by the complainant and that he was beaten by the persons present there. He also stated that police officials were present at the spot in civil attire and they call some more police officials at the spot they were not present at the spot. They all further stated that they do not want to lead defence evidence. Thereafter DE was closed. Final arguments were addressed by the respective Ld. Counsel for the accused persons and by Ld. APP for the State. Ld. Counsel for accused had filed on record the judgements of Hon'ble Apex Court titled as Sakiri Vasu vs State of U.P. reported as 2007 LawSuit (SC) 1304 and Babu Bhai vs State of Gujarat & Ors being Crl. Appeal No. 1599/2010 dated 26.08.2010.
23. I have considered the arguments addressed by Ld. APP for the state and Ld. Counsel for all the accused persons. I have also carefully perused the case file including the judgements filed by Ld. Counsel for the accused persons.
24. The cardinal principle of the criminal law is that the accused FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 21/26 is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
25. This court has no hesitation to say at the threshold itself that the instant case is a classic example of faulty investigation and false implication of the innocent persons. There are material improvements, embellishments and contradictions in the testimonies of the PWs. Pertinently, majority of witnesses in the present case are police witnesses and inspite of that their testimonies seems to be unbelievable.
26. It is the case of the prosecution that all the accused persons had obstructed the complainant/PW4 from discharging his official functions. However, this court fails to understand as to how a police official having dinner at a Dhaba can be regarded as his official function. This court also further fails to understand as to how the complaint under section 195 CrPC was filed by the senior police functionary before this court, considering the fact that complainant/PW4 was not discharging any official function at the time of incident.
27. Furthermore, PW4/ complainant had deposed that after FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 22/26 beating him all the four accused persons had tried to ran away but he caught hold of two persons and handed over to them to PW11 IO/SI Jagdish, whereas PW6 Ct. Sunil Kumar deposed that he was on patrolling duty on that day and he was told by ASI Bajrang Lal that all the four accused persons have ran away in two different directions. He also deposed that thereafter he chased them and caught the two accused persons. In the considered opinion of this court the aforesaid contradiction regarding the apprehension of two accused persons has gone to the very root of the instant case. The conduct of PW6 is also suspicious as despite being on patrolling duty he did not made a call on 100 number nor informed the senior police official about the incident. Furthermore, no DD entry was made by him regarding his apprehension of two accused persons.
28. It has been the defence of the accused persons that there car has been damaged by PW4/ complainant. However, the factum of the presence of car at the spot has not been denied by PW4. Moreover, no photographs of the spot were taken during the course of investigation, which was essential considering the fact that the victim and majority of witnesses were police witnesses and the same could have ensured impartial investigation. The photographs could have thrown some light upon the topography of the spot.
FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 23/26
29. It is also interesting to mention here that no public person were examined by the IO despite they being present at the spot and the said fact has been admitted by PW4 and PW8 respectively in their depositions. No explanation has come on record as to why no public persons were examined. Moreso, PW8 has deposed that the statement of Dhaba owner and his employees were recorded by the IO. However, pertinently those statements cannot be found on record.
30. Another fact which shows the investigation of the present case has been done at the whim and fancy of the of the police officials is that the alleged snatched mobile phone was recovered from PW7 Ram Chander. No plausible explanation has come on record as to why he was made a witness and not an accused. The deposition of PW7 is relevant as he deposed that he picked the mobile phone in question at about 12:00 in the midnight from the spot on 01.04.2011. Interestingly, the IO and other police officials reached the spot at about 11:00 am and remained there for about one hour in the first instance, but none of the police officials present at the spot could see that the phone in question was being picked by PW7 Ram Chander.
31. No investigation on the technical aspect was done by the IO as the mobile phone was not put on surveillance despite the allegation that the same was snatched by the accused persons.
FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 24/26
No explanation has come on record for this lapse on part of IO.
32. In the present case there was only one public witness who has not supported the case of prosecution and had turned hostile. Nothing incriminating could be extracted from him against the accused persons by the prosecution. Hence, the version of the investigating agency remained uncorroborated by an independent material witness. The majority of witnesses those were examined by the prosecution in the present case are police witnesses and the complainant who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. Though, the testimony of the police witnesses and the complainant cannot be straightaway termed as unreliable, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lends sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. The non joining of the public witness creates doubt in the story of the prosecution as held in Pawan Kumar Vs. Delhi Administration reported as 1987 CC 585 DELHI HC.
FIR No. 72/11 PS. Dwarka North U/s. 186/341/332/353/394/506I/34 IPC State Vs. Ajay & Ors Page no. 25/26
33. It is clear that there are major contradictions/ improvements and embellishments in the respective testimonies of PWs. Furthermore, investigation of the present case FIR seems to be intentionally botched up so as to cause undue advantage to the complainant who in the present case happens to be a police official. A doubt has been created on the entire prosecution story. It is settled law that if two views are possible the view favouring the accused is to be adopted.
34. In view of the foregoing discussion and also considering the that there are material improvements and embellishments in the testimony of PWs and the faulty investigation, the prosecution has failed to prove its case against all the accused persons beyond reasonable doubt. Resultantly, the accused persons namely Ajay, Surender, Vijay Kumar and Sunil are acquitted of the offences charged.
Digitally signed by DEEPAK DEEPAK KUMAR
KUMAR Date:
2020.02.13
16:56:45 +0530
Pronounced in open Court on
the 13.02.2020. (DEEPAK KUMAR- II)
MM06/SouthWest/Delhi
13.02.2020
FIR No. 72/11
PS. Dwarka North
U/s. 186/341/332/353/394/506I/34 IPC
State Vs. Ajay & Ors Page no. 26/26