Delhi District Court
State vs 1. Prabhu Singh, S/O Sh. Subhash Chand, on 27 January, 2017
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SC No.57538/2016
FIR No.592/2005
PS : Paschim Vihar
U/s 308/354/34 IPC
State Versus 1. Prabhu Singh, S/o Sh. Subhash Chand,
R/o A1/117A, Janta Flat, Paschim Vihar,
Delhi. (declared PO vide order dated
09.06.2011 by Ld. MM)
2. Rakesh , S/o Sh. Gopal Chand,
R/o D341, Private Tent Relief Camp,
Paschim Vihar, Delhi.
3. Amit Kumar, S/o Late Sh. Ashok Kumar,
R/o H. No.42, Ext.2B, Nangloi, Delhi.
4. Vishal Chopra, S/o Sh. S.K. Chopra,
R/o A1/156B, Janta Flat, Paschim Vihar,
Delhi.
Case received on assignment. : 22.12.2011.
Arguments concluded on. : 19.01.2017.
Date of judgment. : 27.01.2017.
: J U D G M E N T :
1.The above named accused persons were booked by SHO PS Paschim Vihar Under Sec.308/354/34 IPC and have faced trial for having committed the offence punishable U/s 308/323/354/34 IPC.
2. :FACTUAL MATRIX: It is the case of the prosecution that on 12.07.2005 on receipt of DD no.18A SI Ram Kanwal alongwith Ct. Pramod reached at the spot i.e. R/o A1/117A, Janta Flat, Paschim Vihar, Delhi where many persons were gathered there and Smt. Harjeet Kaur W/o Devender Singh R/o A1/58B, DDA Janta Flats Paschim Vihar Delhi, Devender Singh, Manjeet Singh and Amit & Rakesh, with whom the quarrel took place, met them. They were taken to Sanay Gandhi Hospital for medical examination. Statement of Smt. Harjeet Kaur was taken wherein she alleged that: "she has been residing at the aforementioned address State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.1 of pages 18 alongwith his family. Today at about 7.00 PM, for taking milk she was passing through the house of Prabhu Kumar, who was standing inside his shop of boutique and at that time two other persons were also with him. Prabhu while indicating towards her stated that she is the same lady who had deposited a cheque of Rs.3 Lakhs in the court about 34 days back. On this, those two boys attacked her and tried to drag her inside the shop and torn her clothes. Alongwith those two boys, there was one more boy having fair complexion aged about 2324 years, whom she can identify if produced before her and that boy had also misbehaved with her and had torn the suit which she was wearing. Hearing her cries, her husband also reached at the spot and said what are you doing with this lady and on this, those three boys alongwith Prabhu gave a danda blow on the head of her husband and also gave danda blows on her head and hands. They also scratched her with nails and at the same time, her husband also received injuries on his head, forehead and back. Hearing her cries, her son also reached at the spot and he (Mandeep Singh) was also given beatings by the said persons. He was also scratched badly with nails.
Police reached at the spot and those two boys alongwith Prabhu were handed over to the police. The names of those two boys were revealed as Amit and Rakesh. The boy of fair complexion, who was also involved in the incident had managed to run away from the spot and she can identify him if produced before us. She further told that during the process when those persons were giving beatings to her, her husband and her son, finding no other way, she had bitten on the back in order to save her."
State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.2 of pages 18
3. On the basis of said statement of injured/complainant and facts and circumstances of case, a case under Section 308/354/34 IPC was registered and investigation was carried out. During investigation, Site Plan of the place of occurrence was prepared, statements of witnesses were recorded and accused persons Prabhu Singh, Amit Kumar and Rakesh were arrested in this case. The identity of the fourth boy, who escaped, was revealed as Vishal Chopra by the son of complainant namely Mandeep Singh. Accused Vishal Chopta had obtained anticipatory bail and he was also formally arrested in this case. The result on the MLC of complainant and her husband came as simple. Then after completion of investigation, charge sheet was filed in the court of concerned Ld. MM, where accused Prabhu Singh started remaining absent and ultimately was declared proclaimed offender vide order dated 09.06.2011.
4. After committal, arguments on the point of charge heard and then charge U/s 308/354/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. For discharging the onus placed on it, prosecution tendered as many as seven witnesses in all and then PE was closed.
6. PW1 Ct. Pramod is the witness, who accompanied to SI Ram Kumar to the spot, after receipt of DD No.18A by him.
PW2 Dr. Shankar Gupta CMP SGM Hospital, Mangol Puri had medically examined injured Devender Singh, Harpreet Kaur, Amit Kumar (accused) and Rakesh Kumar (accused) vide MLCs Ex.PW2/A to Ex.PW2/D respectively.
PW3 Smt. Harjeet Kaur is the complainant as well as injured in the present case.
PW4 Sh. Devender Singh is one of the injured and husband of complainant in the present case.
PW5 Sh. Mandeep Singh is also one of the injured as well as son of the complainant.
PW6 SI (Retd.) Ram Kumar is the initial IO of case, who had recorded the statement of complainant, got the case registered, prepared State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.3 of pages 18 the site plan and arrested accused Amit Kumar, Prabhu Singh and Rakesh in the present case besides recording the statements of witnesses and other formalities.
PW7 Insp. Manoj Sharma is also the IO of the case, who had formally arrested accused Vishal Chopra in the present case and filed the charge sheet after completion of necessary formalities.
7. After conclusion of prosecution evidence, statement of accused was recorded U/Sec.313 Cr.P.C, wherein while denying the story of prosecution he claimed innocence on the ground of false implication in the case. Accused Rakesh and Amit Kumar claimed that they were passing through the spot when PW4 Devender Singh and PW4 Mandeep Singh were beating Prabhu Singh with baseball bats while threatending him to return his money with interest. When they tried to intervene, they had also beaten them with baseball bats. They also sustained injuries. Someone informed the police and then police reached there and in the meantime PW3 Ms. Harjeet Kaur had torn her clothes herself and falsely implicated them in this case by lodging the false complaint. They claimed that accused Vishal Chopra was not present at the spot.
Accused Vishal Chopra also claimed innocence while stating that he was not present at the spot nor involved in any crime in any manner. In the year, 2003, there was a Residents Welfare Association's Elections in their localty, wherein he had contested for the post of General Secretary and PW5 Mandeep Singh had contested for the post of "PRACHARAK". Mandeep Singh wanted to contest for the post of General Secretary but their team had refused for it. Due to this reason, Mandeep had enmity with him. Futher Mandeep had also an altercation with him when their team was defeated in that election saying that they could have win if he would have contested for the post of General Secretary. He further stated that he and complainant's family resides in the same locality for the last 15 years and earlier they had good visiting terms at each other's house. Due to enmity, Mandeep has falsely impplicated him in this case. In their defence, accused persons examined two witnesses i.e. DW1 Deepak Behl @ Bhola and DW2 Sh. Deepak Khatri.
State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.4 of pages 18 DW1 Sh. Deepak Behl @ Bhola in his deposition stated that he knew Sh. Mandeep Singh and accused Vishal Chopra for the last many years, who are residing in his locality. Earlier they used to meet each other and had good visiting terms. In the year 2003 in Residents Welfare Elections, he had also elected for the post of VicePresident. Accused Vishal Chopra had elected for the post of General Secretary and Mandeep Singh had elected for the post of Pracharak. He proved on record, copy of election letter as Ex.PW3/DA. Further at the time of those elections, Mandeep Singh had quarreled with accused Vishal Chopra on many occasions under the influence of liquor as he wanted to elect for the post of General Secretary. The members of their resident welfare had refused Mandeep Singh to elect for the post of General Secretary. In the said election, their team lost the election and due to that Mandeep Singh had quarreled with accused Vishal Chopra saying that if Mandeep would have contested for the post of General Secretary, their team could have win. Mandeep Singh had also threatened accused Vishal Chopra to see him later on.
DW2 Sh. Deepak Khatri has stated that on 11.07.2015 at about 6.20/7.00 PM, he had visited the boutique of accused Prabhu Singh (PO) to collect the stitched suits of his wife. In the meantime, when accused Prabhu Singh (PO) was packing he suits, Mandeep Singh @ Mannu alongwith his father, who are residing in their locality, reached there and started abusing Prabhu Singh. Mandeep Singh and his father were asking Prabhu Singh to return their money with interest. Prabhu Singh asked them not to abuse him. Mandeep Singh @ Mannu was under the influence of liquor at that time. Prabhu Singh asked both of them to give some time to him to return their money, however, Mandeep and his father, who were carrying the baseball bats, started assaulting Prabhu Singh. Many public persons gathered there. Accused Rakesh and Amit were also amongst those public persons. They tried to intervene to save Prabhu Singh. Mandeep @ Mannu started abusing and beating accused Rakesh and Amit and caused injury to them with baseball bats. Whoever tried to intervene, Mandeep was abusing and beating him. Someone had State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.5 of pages 18 informed the police. In the meantime, before reaching the PCR at the spot, the mother of Mannu reched there and she also started abusing. She asked her husband "YE APNE KYA KAR DIYA, AAP GOVERNMENT SERVANT HO, AB MUJHE HI KUCH KARNA PADEGA". By saying these words, she torn her clothes herself and started levelling allegations against accused persons. He further stated that she knew accused Vishal Chopta but he was not present at the spot. PCR reached at the spot. Police officials took both the accused persons and complainant's family members to the hospital. Public persons gathered at the spot briefed the police officials about the incident. In the meantime, Mandeep @ Mannu made a phone call to someone saying that he was talking to some DCP and due to that police officials did not take any action there. Thereafter, they visited the police station with some public persons and briefed the police officials and also told that boh the accused persons are innocent and did not commit any crime. However, police officials told that they know their job work very well and asked them to leave from there. The next day, he came to know that a criminal case was registered against accused persons including accused Vishal Chopra, who was even not present at the spot. They again visited the Police Station Paschim Vihar and told them that a false case has been registered against the accused persons but they did not take any action despite their request.
8. I have carefully heard the rival submissions advanced on behalf of prosecution as well as on behalf of accused persons. I have also perused the entire material placed before me.
9. As per submissions of Ld. Addl. P.P for State, case of the prosecution is crystal clear and it stands fully proved against the accused persons beyond the shadow of all doubts. PW3 (complainant/ injured) and PW4 & PW5 (injured/eye witnesses of the occurrence) have confirmed the presence of accused persons at the spot during the relevant time. They have fully corroborated with the story of prosecution. PW3 complainant/injured has clearly narrated about the role played by the accused persons in the crime and as such there is no reason to disbelieve her testimony. The medical evidence is in consonance to the testimony of State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.6 of pages 18 ocular witnesses. The injuries sustained by injured Smt. Harjeet Kaur and Sh. Devender Singh have been duly proved on record by PW2 Dr. Shanakr Gupta, who proved the nature of injury and MLCs of injured Devender Singh, Harpreet Kaur, Amit Kumar (accused) and Rakesh Kumar (accused) as Ex.PW2/A to Ex.PW2/D respectively. Further the defect or lapse on the part of the police will not give any help to the accused persons in the circumstances when DD No.18A was got recorded promptly. Further the nature and location of injuries inflicted on various parts of body further consolidates the case of prosecution. Thus, it has been established on record that accused persons had inflicted injuries to the complainant and her husband in the aforesaid manner, knowing well that by their said act the death of injured persons could take place, are liable to suffer an order of conviction for the offences, they have been charge with.
On the other hand, as per the contentions of Ld. Counsel for accused persons, accused are innocent and they have been falsely implicated in this case. There are material contradictions and improvements in the testimonies of prosecution witnesses, which creates doubt about the story of prosecution. First of all, no independent public witness has been joined in the investigation and the witnesses cited by the prosecution are the interested witnesses and therefore, their testimonies cannot be believed. It has been argued on behalf of accused persons that the complainant is doing the business of landing money on interest and had himself initiated the quarrel with the accused persons wherein in order to save her husband and her son, complainant Smt. Harjeet Kaur had herself torn her clothes and implicated the accused persons. It has been argued that accused Vishal Chopra was not even present at the spot and has been falsely implicated in the present case. The weapon of offence i.e. baseball bat is a planted piece of evidence. Accused Vishal Chopra has not been named in the FIR. It has been submitted on behalf of accused persons that though accused Rakesh and Amit had also sustained injuries during the quarrel, no explanation in this regard has been tendered by the prosecution. On the aforesaid grounds, the accused persons are entitled State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.7 of pages 18 for an order of acquittal in their favour.
10. After giving due thoughts to the aforesaid rival submissions of both the sides, I have come to the considered opinion that the prosecution has not been able to prove its case beyond the shadow of reasonable doubt and therefore, the accused persons are entitled for an order of acquittal in their favour.
11. First and foremost, there is no corroboration of independent public witnesses to the testimonies of injured witnesses i.e. PW3 Ms. Harjeet Kaur (complainant/injured), PW4 Sh. Devender Singh and PW5 Mr. Mandeep Singh in this case. In such circumstances, the testimonies of PW3, PW4 & PW5 require minute and careful appreciation. Admittedly PW3, PW4 and PW5 are the star witnesses of the case of prosecution, however, their testimonies reveal that the same suffers from various glaring lacunas in the form of material contradictions and improvements and thus the same cannot be believed. The statements of PW3, PW4 and PW5 i.e. the star witnesses of the case of prosecution are being discussed herein under: In her statement recorded in the court complainant/injured PW3 Mrs. Harjeet Kaur deposed that she is a housemaker. Accused Prabhu Singh had borrowed a sum of Rs.Three Lakhs from her and he had given her one blank cheque only bearing the signature of accused Prabhu Singh drawn on Corporation Bank. Many times she had requested him to return her money but he did not return. Accordingly she had deposited the cheque of accused Prabhu Singh in the bank but the same was dishonoured. She had issued a notice to him on 05.07.2005 regarding dishonour of that cheque. On 11.07.2005 she was going to fetch milk. On the way near the house of accused Prabhu Kumar, accused Prabhu Kumar along with accused Vishal and his two associates were standing there. Those two associates (present in the court), the witness has pointed out towards accused Rakesh and Amit. Accused also identified Vishal in the court. Accused Prabhu Kumar is PO. At the time of the incident, he knew accused Prabhu Kumar and Vishal at the time of incident as they were residing in her locality, however, she was not State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.8 of pages 18 knowing the names of other two accused persons at that time, her son Mandeep Singh knows them by name. Accused Prabhu Kumar had given indication to other three accused persons to drag me inside his house by exhorting "IS AURAT KO ANDAR KHICH KAR LAO". Accused Prabhu Singh was standing in his house and other three accused persons dragged her inside house. In that process, they torn her wearing shirt (kurti). Someone had informed her husband. My husband reached there. The accused persons started beating her husband with baseball bats which they were carrying. They also beaten her badly. Her husband received several injuries on his person "SAARI JAGAH NEEL PADE HUE THE". She also received injury on her head. In the meantime, her son also reached home and someone informed him about the incident. Her son also rushed to the spot. The accused persons also beaten her son Mandeep Singh. Her son informed the police. Police reached the spot. Accused Prabhu fled away from the spot. Accused Prabhu Singh Rakesh and Amit were apprehended by the police from the spot in her presence. She further clarified that accused Vishal fled away from the spot. Subsequently, accused Vishal was arrested in this case by the police. Her statement, Ex.PW3/A bearing her signature at point A, was recorded by the police. She did not hand over any document to police. She correctly identified shirt (kurti) as Ex.P1 and baseball bats as Ex.P2 and Ex.P3. PW4 Mr. Devender Singh while appearing in the witness box deposed that on 11.07.2005 he was alone in his house. His wife Ms. Harjeet Kaur had gone to fetch milk. At about 07:15 PM, someone informed him that a quarrel took place with his wife in front of house of accused Prabhu Kumar (P.O. in this case), which was situated at a distance of about 200 Metres from his house. He rushed there where three persons were grappling with his wife. Those persons had torn the wearing shirt(kurta) of his wife. He tried to intervene. In the meantime those three persons also attacked him. He stated that those three persons are present in the court. The witness has correctly pointed out towards accused Rakesh, Amit Kumar and Vishal Chopra. Further accused Prabhu was standing at the door of his house while the other three State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.9 of pages 18 accused persons were beating his wife and had also beaten him with baseball bats. Accused Rakesh and Sonu @ Amit Kumar were carrying baseball bats. Accused Vishal had slapped him. In the meantime his son Mandeep Singh also reached the spot. All the three accused persons had also beaten his son with dandas and also slapped him. He sustained injuries on his head and other parts of body. His son and wife also sustained injuries on their person. His son informed the PCR. PCR van reached the spot and took him and his wife to Sanjay Gandhi Memorial Hospital. His son also reached hospital. They all three were medically examined in the hospital. Police recorded his statement. He identified the baseball bats as Ex.P2 and Ex.P3.
PW5 Mr. Mandeep Singh in his testimony recorded in the court stated that on 11.07.2005 he was working in NDPS, Lawrence Road, New Delhi. On that day at about 07:00/07:15 PM when he reached his house from work place, someone informed him that his parents were being beaten by someone. He rushed there where he found that the clothes of his mother were torn and blood was oozing out from the head of his father. He stated that accused Prabhu Singh (PO) and accused Vishal, Amit and Rakesh (present in the court) were beating his parents with base ball dandas. When he tried to intervene, the accused persons started beating him also. He raised alarm for help. Somehow, he managed to call the police at 100 number. He sustained injury on his head and back. Accused Vishal ran away from the spot. Accused Prabhu ran inside his house and accused Vishal and Rakesh were still beating them. Police reached the spot and arrested the accused Prabhu, Rakesh and Amit at the spot. They were taken to hospital where they were medically examined. He was discharged from the hospital the same day but his parents were admitted and they were discharged the next day. Police recorded his statement. He identified the baseball dandas as Ex.P2 and Ex.P3.
12. From the detailed recapitulation of sworn deposition of PW3, PW4 and PW5, it is amply clear that their testimonies suffer from material contradictions and numerous vital improvements for which no reasonable State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.10 of pages 18 explanation has been offered.
While in the FIR, the weapon of offence has been described as a "danda" but during their testimonies recorded in the court, PW3, PW4 and PW5 deposed that the accused persons were armed with "baseball bats". Further, while in the FIR there is no description as to which of the accused persons were armed, whereas during her testimony recorded in the court, PW3 Mrs. Harjeet Kaur stated that the accused persons started beating her husband with baseball bats which they were carrying. PW4 Sh. Devender Singh contradicted the version of PW3 Mrs. Harjeet Kaur by stating that accused Rakesh and Sonu @ Amit Kumar were carrying baseball bats. PW5 Mr. Mandeep Singh stated that accused Vishal, Amit and Rakesh were beating his parents with baseball dandas. It is also noteworthy that two baseball bats Ex.P2 and P3 have been seized in the present case which were allegedly recovered at the instance of accused Amit and Rakesh. The baseball bats Ex.P2 and P3 were shown to PW3, PW4 and PW5 during their testimonies recorded in the court wherein they simply identified the baseball bats to be the same which the accused persons were carrying at the time of incident and had used the same for giving them beatings. None of these witnesses has specified as to which of the accused was carrying which of the baseball bat.
While in her statement given to the police, complainant PW3 Mrs. Harjeet Kaur had stated that accused Prabhu while indicating towards her stated that she is the same lady who had deposited a cheque of Rs.3 Lakhs in the court about 34 days back, whereas during her testimony recorded in the court, she improved her version and stated that accused Prabhu Kumar had given indication to other three accused persons to drag her inside his house by exhorting "IS AURAT KO ANDAR KHICH KAR LAO".
Further, while in her statement recorded by the police, PW3 Mrs. Harjeet Kaur had stated that hearing her cries, her husband also reached at the spot, however, during her testimony recorded in the court, PW3 Mrs. Harjeet Kaur stated that someone informed her husband and her State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.11 of pages 18 husband reached there.
Further, while in her statement (Ex.PW3/A) given to the police, PW3 Mrs. Harjeet Kaur had stated that "MAINE AUR KOI CHAARA NO PAKAR, APNE AAP KO CHUDANE KE LIYE KAMAR PAR MUH SE KAATA HAI", whereas while appearing in the witness box as PW3 Mrs. Harjeet Kaur did not state so in her examination in chief. She was cross examined on this point by learned Additional Public Prosecutor for the state, wherein she was confronted with the aforesaid portion of her testimony given to the police, however, she stated that she had not stated so to the police in her statement.
Admittedly there was money transaction/dispute between PW3 Mrs. Harjeet Kaur and accused Prabhu, however, in her first statement given to the police Ex.PW3/A, PW3 Mrs. Harjeet Kaur has not given any details of the money transaction/dispute between her and accused Prabhu. However, while appearing in the witness box, PW3 Mrs. Harjeet Kaur improved her version and claimed that accused Prabhu Singh had borrowed a sum of Rs.3 lac from her and had given her one cheque drawn on Corporation Bank. She added that the said cheuqe was blank only bearing the signatures of accused Prabhu Singh and many times she had requested him to return her money but he did not return. She further deposed that she had deposited the cheque of accused Prabhu Singh in the bank but the same was dishonoured and she had issued a notice to him on 05.07.2005 regarding dishonor of that cheuqe. On being asked during her crossexamination, PW3 Mrs. Harjeet Kaur had stated that she had stated to the police in her statement that she had given a sum of Rs.3 lac to accused Prabhu Singh and he had given one blank cheque drawn at Corporation Bank bearing his signatures only, however, on being confronted with her statement Ex.PW3/A the same version was not found therein rather the words "IS AURAT NE 34 DIN PEHLE COURT MEIN TEEN LAKH A CHEQUE DALA HAI" are mentioned.
Further, while in his examination in chief, PW5 Mr. Mandeep Singh had stated that at about 07:00/07:15 PM when he reached his house from work place, someone informed him that his parents were being beaten by State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.12 of pages 18 someone, however, he contradicted his own statement during his cross examination by stating that on that day, he came back to his house at around 6:00 - 6:30 PM and after reaching at his house, he had gone to park to play cricket where one unknown child aged about 6 years of his colony had informed him about the incident.
The aforesaid are material contradictions which would not have occurred, had the incident actually taken place in the manner as has been described by PW3, PW4 and PW5.
Besides this, the version given by PW3, PW4 and PW5, who are family members, of the events following the alleged incident is also plagued by major contradictions.
While as per the testimony of PW6 SI Ram Kanwar, when he reached at the spot alongwith Ct. Parmod, complainant Mrs. Harjeet Kaur was found there and her clothes were torn. Her husband and son were also found present there. Accused Prabhu Singh, accused Rakesh and accused Amit Kumar were also found present there. He stated that complainant alongwith her husband and son and all the aforementioned accused persons were sent to Sanjay Gandhi Memorial Hospital for their medical examination where they were medically examined. The version of PW6 SI Ram Kanwar has been contradicted by PW1 Ct. Parmod who stated that on 11.07.2005, on receipt of DD no. 18 A regarding quarrel SI Ram Kumar proceeded with him to the spot where it was revealed that injured had already been removed to Sanjay Gandhi Hospital. The versions of PW6 SI Ram Kanwar and PW1 Ct. Parmod have been contradicted by PW3 Mrs. Harjeet Kaur who deposed in the court that firstly she was taken to the police station and from there she was taken to hospital. PW4 Mr. Devender Singh also deposed that in the police station he alongwith his wife were produced before the SHO and the SHO had directed to take them to hospital.
It is not clear as to why instead of taking the injured directly to the hospital for treatment, they were firstly taken to the police station. Further, while as per PW3, PW4 and PW5, PW5 Mr. Mandeep Singh had also received injuries and was also medically examined in the State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.13 of pages 18 hospital, however, there is no MLC of PW5 Mr. Mandeep Singh on record. The reason for not placing on record the MLC of PW5 Mr. Mandeep Singh has remained explained.
It is an admitted fact that the incident took place in a residential colony and at the time of incident, many public persons were present at the spot. However, despite availability no independent public witness has been joined in the investigation at any point of time. No serious effort on part of investigating agency to join independent public witnesses in the investigation appears to have been taken. Admittedly no notice under Section 160 Cr.P.C. was served to any of the public persons who refused to join investigation nor their names or addresses were noted by the investigating officer. It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under: " ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.14 of pages 18 made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
13. Further, in the instant case the testimonies of PW3, PW4 and PW5 as discussed herein above are also found to be suffering from infirmities, marked by exaggerations and not in accord with 'probabilities factor'. Far from corroboration from other independent evidence, even the medical evidence led in the case, seeks to discredit and belie the version put forward by PW3, PW4 and PW5. In the circumstances, it would be proper to hold that the story of the prosecution bristles with doubts and has not been satisfactorily established.
It is also noteworthy here that it has been strongly and vehemently argued on behalf of the accused persons that accused Vishal Chopra was not even present at the spot and he has been falsely implicated in the State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.15 of pages 18 present case. A perusal of Ex.PW3/A i.e. the first statement given by PW3 Mrs. Harjeet Kaur to the police reveals that accused Vishal Chopra has not been named therein, rather the fourth person who had allegedly given injuries to her alongwith accused Prabhu, Rakesh and Amit has been referred as a boy of fair complexion. It is a settled preposition of law that the first testimony given by a witness is believed to be the most natural version not suffering from tutoring, improvements and after thoughts. However, during her testimony recorded in the court, PW3 Mrs. Harjeet Kaur has deposed that she knew accused Prabhu Kumar and Vishal at the time of incident as they were residing in her locality, however, she did not know the names of other two accused persons at that time and her son Mr. Mandeep Singh knew them by name. This version of PW3 Mrs. Manjeet Kaur is contrary to her statement given to the police forming base of the FIR wherein she has not named accused Vishal Chopra. Further as per the chargesheet, the identity of accused Vishal Chopra was revealed by son of the complainant, namely, PW5 Mr. Mandeep Singh, who while appearing in the witness box has specifically deposed that he had seen accused Vishal Chopra only on the day of incident first time. A perusal of the testimony of PW5 Mr. Mandeep Singh reveals that he has been crossexamined as length on the point that he knew accused Vishal Chopra since prior to the incident, however, he was not at all ready to accept that he knew accused Vishal Chopra, prior to the incident. In this regard, Ex.PW3/DA i.e. copy of election letter has also been relied upon by accused Vishal Chopra. DW1 Mr. Deepak Behl @ Bhola has deposed that in the year 2003 in Residents Welfare Elections, he had elected for the post of VicePresident whereas accused Vishal Chopra had elected for the post of General Secretary and PW5 Mr. Mandeep Singh had elected for the post of PRACHARAK. He has also deposed that at the time of those elections, PW5 Mr. Mandeep Singh had quarreled with accused Vishal Chopra on many occasions under the influence of liquor as he wanted to elect for the post of General Secretary and the members of their association had refused Mr. Mandeep Singh to elect for the post of General Secretary. No suggestion has been put to State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.16 of pages 18 DW1 Mr. Deepak Behl @ Bhola to the effect that PW5 Mr. Mandeep Singh did not know accused Vishal Chopra since prior to the incident. In fact, as per the chargesheet also, the identity of accused Vishal Chopra was revealed by PW5 Mr. Mandeep Singh. In view of the aforesaid discussion, it is apparently clear that PW5 Mr. Mandeep Singh intentionally did not admit in the court that he knew accused Vishal Chopra since prior to the incident, for the reasons best known to him. PW 3 Mrs. Harjeet Kaur and PW5 Mr. Devender Singh have admitted in their testimonies recorded in the court that they knew accused Vishal Chopra since prior to the incident. Despite the fact that PW3 Mr. Harjeet Kaur, PW4 Mr. Devender Singh and PW5 Mr. Mandeep Singh knew accused Vishal Chopra since prior to the incident, he has not been named in the FIR and as such the possibility of his implication in the present case at the hands of PW3, PW4 and PW5 cannot be ruled out. Accused Vishal Chopra is therefore liable to get clear cut benefit of doubt. It is also noteworthy that while as per MLCs Ex.PW2/A and Ex.PW2/B, injured Mr. Devender Singh and Mrs. Harjeet Kaur had received 'simple injuries' whereas as per MLC Ex.PW2/C accused Amit Kumar had received 'simple injuries' and as per MLC Ex.PW2/D accused Rakesh Kumar had received 'grievous injuries'. No explanation whatsoever has been attributed to the injuries received by accused Amit Kumar and Rakesh Kumar. Despite the fact that the accused persons, namely, Amit Kumar and Rakesh Kumar had also received injures, no cross FIR has been registered in the present case, for the reasons unexplained. This is more particularly in view of the fact that none of the prosecution witnesses, namely, PW3, PW4 and PW5 have stated in their testimonies that they had also given any kind of beatings to the accused persons.
14. The story put forth by the prosecution suffers from numerous lacunae and material contradictions creating a doubt as to its veracity and truthfulness. The benefit of doubt in such circumstances has to be extended to the accused persons.
15. In the light of aforesaid, the accused persons, namely Rakesh, Amit State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.17 of pages 18 Kumar and Vishal Chopra are entitled for an order of acquittal in their favour by giving them the benefit of doubt. They are acquitted accordingly. The accused persons are directed to furnish their personal bonds in the sum of Rs.10,000/ each with one surety of like amount for each within a week in view of the provisions of Sec.437A Cr.P.C. The prosecution shall be at liberty to revive its case as and when accused Prabhu Singh is arrested and produced before the court.
16. File be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1)
on 27th January, 2017) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
State Vs. Prabhu Singh & Ors. (SC No.57538/2016) Page No.18 of pages 18