Delhi District Court
State vs Harpreet Singh on 27 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07, WEST, TIS
HAZARI COURTS,
NEW DELHI
Presided over by- Devanshu Sajlan, DJS
Cr. Case No. -: 63639/2016
Unique Case ID No. -: DLWT020000572000
FIR No. -: 126/2000
Police Station -: Paschim Vihar (East)
Section(s) -: 147/148/323/427/452 IPC r/w
149 IPC
In the matter of -
STATE
VS.
HARPREET SINGH & ORS.
.... Accused
ONE OF 75 OLDEST CASES IN THE WEST DISTRICT
1.Name of Complainant : Sh. Tejinder Pal Singh
1. Harpreet Singh S/o Sh. Surjeet Singh @ Romy
2. Harpreet Singh S/o Late Sh.
Jaswant Singh
2. Name of Accused :
3. Surjeet Singh
4. Harjeet Singh @ Raju
5. Kuljeet Singh
6. Jaswant Singh - Abated Offence complained of or
3. : 147/148/323/427/452 IPC r/w 149 IPC proved
4. Plea of Accused : Not Guilty
5. Date of registration of FIR : 26.02.2000
6. Date of filing of chargesheet : 14.07.2000
7. Date of Reserving Order : 22.09.2023
8. Date of Pronouncement : 27.09.2023
9. Final Order : Acquitted Argued by -: Sh. Dhirendra Kumar Yadav, Ld. APP for the State.
Sh. Anand Maheshwari, Ld. counsel for the accused.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:39:35 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 1 of 33
-:BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX-
1. The present case is one of the 75 oldest cases pending in the West District, Tis Hazari Courts. As the adage goes, "an ounce of mediation is worth a ton of litigation" and hence, repeated attempts were made between the complainant and the accused persons to mediate and arrive at a mutual settlement. However, despite repeated attempts at different stages of trial, the negotiations eventually failed, and the trial proceeded on merits.
2. Facts of the case, as per the version of PW1 Sh.
Tejinder Pal Singh/complainant, are that on 26.02.2000, accused Surjeet Singh, Tinu @ Jaggi, Jaswant Singh, Harpreet Singh, Harjeet Singh, Gurmeet Singh and Kuljeet Singh, along with their other associates, arrived at GH-13/197, i.e., the house of Sh. Vishwamitra Sharma, where a meeting was called by Sh. Vishwamitra Sharma to settle the disputes between the complainant side and the accused side.1 It has been further alleged that after five minutes, the accused persons started beating the complainant, his wife, and his brother Sh. B.S. Arora. The complainant has further alleged that he was caught hold by his hair by accused persons namely Surjeet Singh, Jaswant Singh, Harpreet Singh, and Harjeet Singh while the accused Tinu @ Jaggi and Gurmeet Singh fled away from the spot.
1No accused persons by the name of Tinu@ Jaggi and Gurmeet Singh have been charge sheeted in the present case.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:44:59 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 2 of 33
3. It has been further alleged that in the meanwhile, 10-15 more persons came from outside and entered the house having rods, bats, sword, and some hockey sticks. Thereafter, it has been alleged that all the accused persons damaged the car of the complainant as well as the household articles i.e., washing machine, wash basin, window glasses etc., after which a call was made at 100 number and police arrived at the spot after 10 minutes and arrested the accused persons. It has been further submitted that the complainant and his brother sustained injuries during the incident and were taken to the hospital for medical examination.
4. Accordingly, upon filing of chargesheet, charge was framed against the accused persons to the effect that on 26.02.2000 at about 10:00 PM, at GH-13/197, Paschim Vihar, all accused persons armed with deadly weapons i.e., danda lathi, hockey sticks, iron rods and bats, in prosecution of their common object to extort money by illegal ways, being the member of an unlawful assembly, used force upon the complainant and other members of his family, and accordingly, the accused persons are alleged to have been guilty of rioting and causing simple injuries to the complainant and his brother.
5. Further, it is alleged that the accused persons, being member of the unlawful assembly armed with deadly weapons as aforesaid, committed house trespass after preparation to cause hurt, assault or wrongful restraint and they all caused mischief and damages to the amount of Rs. 50 or upwards by damaging the household articles. Thus, all accused persons are alleged to have DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:45:15 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 3 of 33 committed the offences punishable u/s 147/148/323/427/452 IPC r/w 149 IPC.
INVESTIGATION AND APPEARANCE OF ACCUSED-
6. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused persons was filed. After taking cognizance of the offence, accused Harpreet Singh S/o Sh. Surjeet Singh, Harpreet Singh S/o Late Sh. Jaswant Singh, Surjeet Singh, Harjeet Singh @ Raju, Kuljeet Singh and Jaswant Singh were summoned to face trial.
7. On their appearance, a copy of charge-sheet was supplied to the accused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charges under Sections 147/148/323/427/452 IPC r/w 149 IPC were framed against the accused persons, to which they pleaded not guilty and claimed trial. During trial, accused Jaswant Singh passed away and proceedings qua him were abated vide order dated 16.03.2019.
PROSECUTION EVIDENCE -
8. During the trial, prosecution led the following oral and documentary evidence against the accused persons to prove its case beyond reasonable doubt-:
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:45:29 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 4 of 33 ORAL EVIDENCE PW-1 : Tejinder Pal Singh (complainant) PW-1A : WSI Anita PW-3 : Retd. SI Om Prakash PW-4 : Smt. Kuldeep Kaur PW-5 : Smt. Seema PW-6 : Balvinder Singh PW-7 : ASI Ami Lal PW-8 : Retd. ACP Surender Kumar Gulia PW-9 : ASI Raj Kumar DOCUMENTARY EVIDENCE Ex. PW1/A : Statement of complainant Ex. PW-1A/B : FIR Ex. PW-1A/A : Endorsement on Rukka Ex. PW-8A : Copy of site plan Ex. PW-8/A, B : Seizure memos &C Ex. PW-8/D : Personal search memo Mark-8A : Photographs Ex. AD-1 : Kalandra Ex. P1 & P2 : Case property (colly) STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
9. Thereafter, in order to allow the accused persons to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. All accused persons stated that they are innocent and have been falsely implicated in the present case. The accused persons chose to not lead DE and hence, matter was listed for final arguments.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:45:42 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 5 of 33 ARGUMENTS -
10. I have heard the Sh. Dhirendra Kumar Yadav, Ld. APP for the State and Sh. Anand Maheshwari, learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the learned APP for the State that all the ingredients of the offences are fulfilled in the present case. He has argued that the testimony of the eyewitnesses has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
12. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the accused persons have been falsely implicated in the present case. It has been submitted that there are material contradictions in the testimony of the eyewitnesses, which renders the prosecution version doubtful. It has been further submitted that PW Seema and Kuldeep are hearsay witnesses whose statements cannot be relied upon. It has been further argued that there is a delay of 2 days in the registration of FIR and the same is fatal to the case of the prosecution. It has been further argued that the recovery of case property has been planted and the same has not been recovered from the accused persons.
INGREDIENTS OF THE OFFENCE -
13. Before proceeding with the appreciation of evidence, it is imperative to refer to the definition of the offences charged against the accused persons. For a better understanding, relevant DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.28 09:46:02 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 6 of 33 sections of the IPC involved in the present case are reproduced as follows:
Section 141 IPC - Unlawful Assembly An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First. - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second. - To resist the execution of any law, or of any legal process; or Third. - To commit any mischief or criminal trespass, or other offence; or Fourth. - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or 10 enforce any right or supposed right; or Fifth. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation. - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Section 146 IPC - Rioting Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
Section 147 IPC - Punishment for Rioting Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 148 IPC - Rioting, armed with deadly weapon Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 149 IPC - Every member of unlawful assembly guilty of offence committed in prosecution of common object If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 319 IPC - Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:46:18 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 7 of 33 Section 323 IPC - Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 425 IPC - Mischief Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
Section 427 IPC - Mischief causing damage to the amount of fifty rupees Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 452 IPC - House-trespass after preparation for hurt, assault or wrongful restraint Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Ingredients of section 149 IPC (Unlawful assembly)
14. Firstly, the ingredients of the offense under section 149 IPC are being discussed. The two essential ingredients of this offense are that there must be commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:46:35 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 8 of 33 must be such as the members of that assembly knew to be likely to be committed.
15. It is also a well-settled law that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act (see State of U.P. v. Dan Singh, (1997) 3 SCC 747; Masalti v. State of U.P., AIR 1965 SC 202).
16. Further, determination of 'common object' is a relevant factor while prosecuting an accused under section 149 IPC. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. The factors to be considered to determine common object were laid down by the Hon'ble Supreme Court in Maranadu v. State, (2008) 16 SCC 529:
"... For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti."
17. It is further pertinent to note that section 149 IPC creates a constructive or vicarious liability on the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly based on mere membership of the unlawful assembly with the requisite DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:46:50 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 9 of 33 common object or knowledge. Mere presence in the unlawful assembly is enough to fasten vicariously criminal liability under Section 149 IPC (see Daya Kishan v. State of Haryana, (2010) 5 SCC 81). However, at the same time, where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, the Hon'ble Supreme Court has time and again applied rule of caution taking into consideration particular fact situation and convicting only those accused whose presence was clearly established and overt acts were proved qua them (See Pandurang Chandrakant Mhatre v. State of Maharashtra, (2009) 10 SCC 773; Nagarjit Ahir v. State of Bihar, (2005) 10 SCC 369).
Ingredients of section 147 IPC (Rioting)
18. For the offence of rioting, there must be: (i) an unlawful assembly of 5 or more persons as defined in Section 141 IPC i.e., an assembly of 5 or more persons and such assembly was unlawful; (ii) the unlawful assembly must use force or violence (Force is defined in Section 349 IPC); and (iii) the force or violence used by an unlawful assembly or by any member thereof must be in prosecution of the common object of such assembly in which case every member of such assembly is guilty of the offence of rioting (see Lakshman Singh v. State of Bihar, (2021) 9 SCC 191).
Ingredients of section 323 IPC (Punishment for causing Hurt)
19. Section 319 IPC defines the offense of causing 'hurt' as whoever causes bodily pain, disease, or infirmity to any person.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:47:04 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 10 of 33 Further, punishment for causing simple hurt is prescribed in section 323 IPC and the ingredients of the same are: (i) Accused has caused hurt to the victim; (ii) the hurt caused was voluntary in nature; and
(iii) the same offence is not covered under Section 334 of the IPC.
20. The term 'voluntarily' has been defined under section 39 IPC as follows:
A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration: A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
Ingredients of section 427 IPC (Mischief)
21. Section 427 of IPC provides for an aggravated form of mischief which is based on the degree of the damage caused, i.e., damage caused due to mischief to the amount of rupees fifty or above:
Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or both.
22. The expression "mischief" has been defined in Section 425 IPC to mean (i) an act done (ii) with intent to cause or knowing that it is likely to cause wrongful loss or damage to the public or to any person (iii) causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously.
23. Therefore, in order to establish commission of offense under section 427 IPC, the following ingredients are required to be met, i.e., (i) the accused must have the intention and knowledge to DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:47:21 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 11 of 33 commit an act that may cause loss and damage to the person or the property; (ii) there must be loss and damage caused to the property;
(iii) the value of loss and damage must be rupees fifty or upwards.
Ingredients of section 452 IPC (House-trespass after preparation for hurt, assault or wrongful restraint)
24. The offence punishable under Section 452 IPC is an aggravated form of 'house trespass', which is defined in Section 442 IPC and is made punishable under Section 448 IPC. Essential ingredients of offense of house trespass are: (i) the accused must commit criminal trespass (ii) by entering into or by remaining on the property unlawfully after initial lawful entry; (iii) that such trespass was in respect of a building, tent or vessel; and (iv) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property. Therefore, an essential ingredient of section 452 IPC is that the trespass must occur within a building, tent, or vessel and that such building must be used as human dwelling. Further, to establish an offense under section 452 IPC, the presence of a preparatory intent for assault, hurt, or wrongful restraint is imperative. Mere trespass, coupled with an act of aggression, is insufficient to meet the criteria of Section 452 IPC. An element of preparation to commit harm or restraint is indispensable to bring the offense within the ambit of section 452 IPC.
25. Therefore, the prosecution was required to satisfy the aforesaid ingredients to bring home the charges against the accused persons. Needless to mention, in criminal law, the burden of proof DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:47:36 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 12 of 33 on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
26. It is pertinent to note that as per the prosecution version, the incident of hurt and assault happened at the address of Sh. Vishwamitra Sharma, and the incident of house trespass and mischief happened at the residence of the complainant. Four eyewitnesses have been deposed by the prosecution to bring home the charges against the accused persons. Apart from the four eyewitnesses, there was one more independent witness cited in the list of witnesses, i.e., Sh. Vishwamitra Sharma, but he was dropped from the list of witnesses vide order dated 08.09.2017.
27. It is pertinent to note that PW Smt. Kuldeep Kaur and Smt. Seema are not eyewitnesses to the incident which allegedly happened at the house of Sh. Vishwamitra Sharma. In this regard, it is pertinent to note the following extract from the cross-examination of PW Smt. Kuldeep Kaur:
I was not present at the time of the meeting inside the house of Mr. Vishwamitra Sharma, and that is why, I cannot tell the exact reason which initiated the quarrel. From our side, Mr. Bharadwaj, my husband Tejinder Pal and Balwinder Singh were present in the meeting at the house of Mr. Vishwamitra Sharma. In the meeting, there was no other person of locality. ... ... Wife of Sh. Balwinder Singh, advocate namely Seema with two children were present at my house.
28. Further, it is pertinent to note the following extract DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.28 09:47:54 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 13 of 33 from the cross-examination of PW Smt. Seema:
I was not present in the meeting and I was inside the house of Sh. Tejinder Pal Singh along with his wife. I had not visited the house of Sh. Vishwamitra Sharma... (Vol.) I was not present there at the time of meeting. We had reached outside his house when we heard the noise of quarrel... (Vol.) I was not present in the meeting when the quarrel had taken place. My husband told me about the dispute arose in the meeting. Since, I was not present inside the house of Vishwamitra, as such, I cannot tell whether there had been quarrel between the accused and my husband inside the house of Vishwamitra.
29. Therefore, the cross-examination as reproduced above, leaves no manner of doubt that the aforesaid two witnesses were not present at the house of Sh. Vishwamitra Sharma (GH-13/197) and hence, their deposition cannot be considered with respect to the incident that happened at the said house (since the same is mere hearsay evidence).
30. In light of the above, the testimony of the remaining two eyewitness accounts, i.e., PW1/complainant/Sh. Tejinder Pal Singh and his brother PW6 Sh. Balvinder Singh is being discussed hereinafter.
Testimony of PW1 Tejinder Pal Singh
31. As per the version of PW1 Sh. Tejinder Pal Singh/complainant, on 26.02.2000, accused Surjeet Singh, Tinu @ Jaggi, Jaswant Singh, Harpreet Singh, Harjeet Singh, Gurmeet Singh and Kuljeet Singh, along with their other associates, arrived at GH-13/197, i.e., the house of Sh. Vishwamitra Sharma, where a meeting was called by Sh. Vishwamitra Sharma to settle the disputes between the complainant side and the accused side. It has been further alleged that after five minutes, the accused persons started beating the complainant, his wife, and his brother Sh. B.S. DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.28 09:48:10 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 14 of 33 Arora. The complainant has further alleged that he was caught hold by his hair by accused persons namely Surjeet Singh, Jaswant Singh, Harpreet Singh, and Harjeet Singh while the accused Tinu@ Jaggi and Gurmeet Singh fled away from the spot.2
32. It has been further alleged that in the meanwhile, 10-15 more persons came from outside and entered the house having rods, bats, sword, and some hockey sticks. Thereafter, it has been alleged that all the accused persons damaged the car of the complainant as well as the household articles i.e., washing machine, wash basin, window glasses after which a call was made at 100 number and police arrived at the spot after 10 minutes and arrested the accused persons. It has been further submitted that the complainant and his brother as well as the accused persons were taken to the hospital for medical examination.
Testimony of PW6 Balvinder Singh
33. As per the version of PW6 Sh. Balvinder Singh, in the month of February 2000, he was called by his brother to his residence GH-13/189 for compromise and he informed him that a meeting has been arranged at the house of Sh. Vishwa Mitra (GH- 13/197). He has further deposed that he reached at his brother's place with his wife and two minor children. PW6/Balvinder Singh has further deposed that meeting started at around 10:00 pm at the house of Sh. Vishwa Mitra where accused Surjit Singh, Jaswant Singh, Harpreet Singh @ Rumi, Raju and two other persons namely 2 No accused persons by the name of Tinu@ Jaggi and Gurmeet Singh have been charge sheeted in the present case.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:48:28 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 15 of 33 Toni and Tinu were present (apart from two other persons who he doesn't know about). Thereafter, during negotiations, the son of accused Surjit Singh and his samdhi (Jaswant Singh) picked up a quarrel by saying "Maro inko, aise kabu nahi ayenge". He has further deposed that:
"Some of their associates waiting outside and upon calling of Rumi and Raju, they entered into the house of Sh. Vishwa Mitra and started beating us with rods and hockey sticks. One of the associate namely Toni (who might be the son-in-law of accused Surjit Singh) made a noise "Bachao Bachao" and with the help of the said accused Toni, my brother was locked into one toom of Sh. Vishwa Mitra there itself and he helped me rescue and somehow, I ran away to my brother's house.
They followed me and jumped the gate of my brother's house and entered into the courtyard and they damaged all the windows, window panes, doors, wash-basin, washing machine etec.. They also damaged one of our car parking outside the gate".
34. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would seldom implicate someone falsely and let the real culprit go scot-free. In the case of Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, the Hon'ble Apex Court, relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgment is reproduced as under:
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:48:44 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 16 of 33 in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
35. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence.
Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
36. Accordingly, it is a settled position that the testimony of an injured witness is a highly corroborative piece of evidence.
Digitally signed byDEVANSH DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:48:59 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 17 of 33 Unless highly compelling circumstances are established by the accused which casts a reasonable doubt over the statement of the injured witness, such statement can be safely relied upon by the Courts to convict the accused persons. Therefore, it has to been if there are material contradictions/omissions in the testimony of PW1 and PW6 which casts a reasonable doubt over their statements.
Discussion: Allegation of rioting as part of unlawful assembly
37. It is a settled position of law that unlawful assembly is the genus, while rioting is the species (i.e., an aggregated part of unlawful assembly). When violence or force is used during unlawful assembly, it becomes rioting. Therefore, the first aspect which needs to be ascertained is whether there was any unlawful assembly of which the accused persons were members, and whether there was any common object of the said unlawful assembly, for which offences were committed. As discussed above, common object is a relevant factor while prosecuting accused persons for an offence u/s 149 IPC and the same needs to be ascertained from the acts and language of the members composing the said assembly. Further, as discussed above, in order to determine the common object of an assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack is required to be considered.
38. It is pertinent to note that the complainant has deposed in his examination in chief that after five minutes, the accused persons started beating him, his wife, and his brother B.S. Arora. He DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:49:17 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 18 of 33 has further deposed that accused Tinu @ Jaggi and Gurmeet Singh fled away from the spot. He has further deposed that the accused Surjeet Singh, Jaswant Singh, Harpreet Singh, and Harjeet Singh caught hold of him by his hair. Therefore, in the above testimony, no specific role of the accused Kuljeet Singh and Harpreet Singh (s/o Late Sh. Jaswant Singh) has been mentioned by the complainant. Further, even with respect to Tinu @ Jaggi and Gurmeet Singh, the complainant has merely deposed that they fled away from the spot. Therefore, basis the aforesaid testimony, no common object can be ascertained between the accused persons since the complainant has not explained the individual conduct of the accused persons and has given a blanket statement to the effect that "the accused persons started beating me". At best, the complainant has provided specific role of four accused persons (Surjeet Singh, Jaswant Singh, Harpreet Singh, and Harjeet Singh) and accordingly, even if the version of the complainant is accepted completely, common object can be ascertained only between four accused persons. As per the requirement of law, an assembly of at least five persons is required to categorize an assembly as an unlawful assembly u/s 141 IPC.
39. Ld. APP has argued that the complainant has specified that there were 10-15 other persons who came from outside into the house with rods, bats, sword, and hockey sticks. However, the said deposition has been made in the air without any concrete proof of the same. No names or other recognition details have been deposed by the complainant in relation to the said 10-15 persons. In this regard, the testimony of PW-3/SI Om Prakash is relevant, who had DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:49:35 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 19 of 33 visited the spot on the date of incident upon receiving DD No.22 at 10:50 PM. In his testimony, he has deposed that many public persons were gathered at the spot, and the accused persons were quarreling at the spot and shouting. However, he has not mentioned anything about 10-15 other persons carrying swords/danda/bats/hockey sticks. Even in the Kalandra u/s 107/151 Cr.PC prepared by the said PW/SI Om Prakash, there is no mention of any other associates of the accused persons carrying the aforesaid weapons. There is nothing on record to corroborate the assertions of the complainant that there were 10-15 other people who had entered the room when the accused persons started beating up the complainant.
40. It is pertinent to note that the complainant has deposed in his cross-examination that a person, namely Sh. R.P. Bharadwaj (President of the locality), was present during the meeting at the house of Sh. Vishwamitra. The said person is an important independent eyewitness who could have helped to corroborate the version that there were 10-15 other co-associates of the accused persons who entered the room later. No explanation has been given by the prosecution for non-examination of the said independent witness. It is a settled position of law that non-examination of material independent witnesses by prosecution adversely affects its case. In this regard, reliance can be placed upon the judgment passed by Hon'ble Supreme Court in Parminder Kaur v. State of Punjab, (2020) 8 SCC 811:
16. Non-examination of Bhan Singh and Karnail Singh is also a noticeable lapse, given the gaps in the prosecution story. It DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:49:54 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 20 of 33 appears that no serious attempt was made to get them examined to resolve the contradictions in the testimonies of PWs 1 and 2.
Such lack of examination of material independent witnesses, adversely affects the case of the prosecution. This Court in Takhaji Hiraji v. Thakore Kubersing Chamansing [Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145 :
2001 SCC (Cri) 1070] , viewed that: (SCC p. 155, para 19) "19. ... It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case."
41. Therefore, due to (i) absence of any cogent details about the 10-15 unknown persons (in the form of their physical built/ facial features etc.); (ii) failure of police (PW3/ASI Om Prakash) to record presence of any assailants except the accused persons on the date of incident; and (iii) lack of corroboration by any independent witness; the version of the complainant that there were 10-15 unknown associates of the accused persons cannot be relied upon.
42. Further, as per the testimony of PW-6/Balvinder Singh/B.S. Arora, again, no specific role has been assigned to Kuljeet Singh and Harpreet Singh S/o Jaswant Singh. PW Balvinder Singh deposed that during negotiations, son of accused Surjeet Singh and his samdhi (Jaswant Singh) picked up a quarrel by saying "maro inko, aise kabu nahi ayenge". He has further deposed that upon the calling of Romi (Harpreet Singh S/o Surjeet Singh) and Raju (Harjeet Singh), some of their associates entered the house of DEVANSHU DEVANSHU Digitally signed by SAJLAN SAJLAN Date: 2023.09.28 09:50:12 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 21 of 33 Sh. Vishwamitra and started beating them with rods and hockey sticks. He has further deposed that one of the associates, namely Tony, rescued him and helped in locking his brother/complainant into a room (to protect him). Therefore, at best, PW-6/Balvinder Singh has specified the role of only three persons (Son of Surjeet Singh i.e., Romy @ Harpreet Singh, Raju @ Harjeet Singh and Jaswant Singh, Samdhi of Surjeet Singh). He has not specified the role of Kuljeet Singh, Surjeet Singh, and Harpreet Singh S/o Jaswant Singh. In fact, he has not even alleged that any of the accused persons, against whom charge has been framed, attacked/beat the complainant or PW-6 Balvinder Singh in any manner. He has merely deposed that they were beaten up by associates of the accused persons who entered the house upon the calling of accused Romi and Raju. Therefore, the overt act of beating up the victims has been assigned to unknown associates and at best, only two accused persons namely Romi and Raju have been assigned the roles of instigators. In fact, one of the associates, namely Toni, has been described as a rescuer who tried to save the complainant and PW-6/Balvinder Singh.
43. Based on the above discussion, no common object can be ascribed to the assembly of accused persons. It is an admitted fact in the testimony of the complainant and PW-6/Balvinder Singh that the accused persons had reached the house of Sh. Vishwamitra Sharma upon his asking in order to settle the disputes between both sides. Therefore, the arrival of the accused persons at the concerned spot was for a legal purpose i.e., to settle the existing disputes. It is also an admitted position that when the accused persons entered the DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:50:29 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 22 of 33 room, they were not carrying any weapons. The weapons are alleged to have been brought by the associates of the accused persons who were waiting outside the room in which negotiations were going on. The said unknown associates have not been named or described in any manner by the complainant or PW-6 Balvinder Singh. Their built or physical description has not been mentioned anywhere in the deposition by the complainant or PW-6. Therefore, for the reasons mentioned in paragraph 39-41, I am of the considered view that the testimony regarding existence of unknown associates (around 10-20 in number) cannot be relied upon in absence of any concrete details/corroboration by any independent/official witness.
44. Once the aforesaid testimony is removed from consideration, only the arraigned six accused persons remain in consideration. However, no specific role has been ascribed to certain accused persons by the complainant and PW-6/Balvinder Singh. As discussed above, the complainant has, at best, ascribed specific role to four persons and PW-6/Balvinder Singh has ascribed specific role to only three persons. Accordingly, the essential ingredient of section 141 IPC, which requires at least five persons to form an unlawful assembly, is not fulfilled in the present case. In this regard, reliance can be placed upon the judgment of Pulen Phukan v. State of Assam, 2023 SCC OnLine SC 350, in which the accused persons were acquitted since no specific role was ascribed to the accused persons:
16. Coming to the evidence of the eye-witness PW-1, the informant in her report has not assigned any specific role to any accused. It is only stated that 13 persons came to her house, some of them chased and followed the deceased who was trying DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.28 09:50:47 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 23 of 33 to save himself by escaping from back courtyard and entering into the neighbour's house where he was done to death....
24. Coming to the legal issues, we first deal with the issue as to whether in the facts and circumstances it was a case of unlawful assembly and further the accused were members of the unlawful assembly with common object is made out or not. Chapter VIII of the IPC deals with 'Offences Against the Public Tranquillity'.
Sections 141 to 149 deal with definition of unlawful assembly, being member of unlawful assembly, punishment of being part of the unlawful assembly armed with deadly weapons and every member of unlawful assembly to be guilty of the offence committed in prosecution of common object to be punished under Section 149 IPC. According to Section 149 IPC every member of the unlawful assembly must know the common object of their assembly and also the offence likely to be committed in prosecution of the common object.
25. The evidence of all the eye-witnesses has been narrated in detail in the earlier part of this judgment. None of the eye- witnesses have taken names of all the accused persons who are said to be 13 in number. Only names of 3-4 accused persons are taken who are said to have assaulted the deceased and the injured PW-2. None of the eye-witnesses have stated that all the accused persons had come with a common object of committing murder and assaulting the injured PW-2. It is also not stated by any of the eye-witnesses that there were any utterances by one or many or all the accused that they must eliminate the deceased and cause injuries to the injured PW-2. There is no evidence to the effect that any of the accused exhorted the others saying that they have to eliminate the deceased and assault the injured (PW-2). Further, it is clearly stated by the eye-witnesses PW-1, PW-2 and PW-3 that at least five police personnel were accompanying the accused and that they were standing outside and did not interfere in the commission of the alleged crime. From the above it is clear that it is difficult to decipher that all the members of the unlawful assembly were aware of the common object.
45. Further, as discussed above, whenever allegation is made against a large number of persons, the Hon'ble Supreme Court has time and again applied rule of caution taking into consideration particular fact situation and convicting only those accused whose presence was clearly established and overt acts were proved qua them (See Pandurang Chandrakant Mhatre v. State of DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:51:04 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 24 of 33 Maharashtra, (2009) 10 SCC 773; Nagarjit Ahir v. State of Bihar, (2005) 10 SCC 369). Therefore, in absence of any specific role being assigned to all accused persons, essential ingredients of section 149 IPC are not made out in the present case.
46. Further, the prosecution has been unable to prove that all the accused persons had a common object to assault the complainant and PW-6/Balvinder Singh since it has nowhere come on record that the accused Kuljeet Singh participated in beating up the victims or instigated any accused to beat them up. Further, even the role of Harpreet Singh S/o Jaswant Singh is unclear, and no specific act has been imputed upon him. Based on the testimony of the complainant, it appears that a fight happened on the spot and there was no prior intention on the part of accused persons to assault the complainant. While it is true that common object can be formed upon the spot as well, no positive evidence has come on record which points towards the formation of the said common object. PW- 6 has not even deposed that the complainant and the PW-6 were beaten up by the accused persons. In fact, he has deposed that they were beaten up by unknown associates who were called by accused Romi and Raju. Therefore, the common object to assault the victims cannot be imputed upon other accused persons who neither participated in beating up the complainant and PW-6/Balvinder Singh nor instigated anybody to assault them.
47. Based on the aforesaid, the offence u/s 147/148 r/w section 149 IPC is not made out since the essential ingredient to constitute the alleged offenses is not made out to start with (i.e., an DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:51:20 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 25 of 33 assembly of five or more persons with a common object to commit an offence).
Discussion: Allegation of causing simple hurt
48. Next, the allegation of causing simple hurt needs to be discussed. It has already been discussed that PW-6/Balvinder Singh has nowhere deposed that the accused persons beat him. He has only deposed that he was beaten up by unknown associate persons at the calling of accused Romi and Raju. It has already been concluded that the presence of unknown associate persons is not established and the same cannot be taken into consideration (for the reasons mentioned in paragraph 39-41 and 43). Therefore, the testimony of PW/6 Balvinder Singh nowhere establishes the role of accused persons in the alleged incident of beating up of PW-6.
49. Further, the testimony of the complainant cannot be relied upon since his testimony is contradictory in nature. In his examination in chief, he deposed that the accused persons beat him, his wife, and his brother PW-6/Balwinder Singh. However, it has been conclusively established during trial that his wife namely Smt. Kuldeep Kaur/PW-4 was not present at the house of Sh. Vishwamitra Sharma (since she has admitted the same in her cross- examination) and hence, it is evident that the complainant lied about the presence of his wife at the spot. The said contradiction cannot be brushed aside as a minor discrepancy, and it goes to the root of the matter since the complainant has lied about the presence of an injured victim at the scene of crime. Accordingly, the testimony of DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:51:39 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 26 of 33 the complainant is not reliable and the same cannot be the sole basis to convict the accused persons.
50. Ld. APP has submitted that the injuries caused to the victims cannot be brushed aside and he has relied upon the MLC on record to substantiate his arguments. However, MLC of the complainant and PW-6/Balvinder Singh have not been exhibited during evidence and the concerned doctor/record clerk/CMO were not examined by the prosecution to prove the MLCs of the complainant and PW-6. In the absence of the same, the MLCs cannot be taken into consideration and hence, there is nothing on record to prove that the complainant and PW-6 received simple injuries during the alleged incident.
51. Therefore, due to (i) absence of proof of unknown associate persons at the spot; (ii) material contradiction in the testimony of the complainant; and (iii) lack of corroboration of the doubtful testimony of the complainant due to non-exhibition of MLCs and due to not summoning of independent witness (Sh. R.P. Bharadwaj); the allegations of hurt are not substantiated.
Discussion: Allegation of house trespass
52. The next allegation is regarding house trespass by the accused persons at the house of complainant. In this regard, it is pertinent to note that PW-1/complainant/Tejinder Pal Singh is not an eyewitness to the incident of house-trespass. The same is evident from his cross-examination where he has specifically admitted the same in the following manner: "I do not know if my brother had DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN Date: 2023.09.28 09:51:57 +05'30' Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 27 of 33 gone to my house thereafter. It is correct that I have not witnessed any occurrence of damaging my property i.e., my house, my car and other articles of my house since I was confined for my protection".
53. Therefore, the testimony of PW-1/complainant cannot be considered with respect to allegation of house-trespass. That leaves the testimony of PW-4/Smt. Kuldeep Kaur, PW-5/Smt. Seema, and PW-6/Sh. Balvinder Singh. Firstly, the testimony of PW-6/Balvinder Singh is re-produced regarding the allegation of house-trespass:
"Some of their associates waiting outside and upon calling of Rumi and Raju, they entered into the house of Sh. Vishwa Mitra and started beating us with rods and hockey sticks. One of the associate namely Toni (who might be the son-in-law of accused Surjit Singh) made a noise "Bachao Bachao" and with the help of the said accused Toni, my brother was locked into one toom of Sh. Vishwa Mitra there itself and he helped me rescue and somehow, I ran away to my brother's house.
They followed me and jumped the gate of my brother's house and entered into the courtyard and they damaged all the windows, window panes, doors, wash-basin, washing machine etec.. They also damaged one of our car parking outside the gate".
54. The aforesaid testimony is completely vague and does not identify the persons who committed the alleged act of trespass. It is pertinent to note that PW-6/Balvinder Singh has repeatedly used the word "they" without specifying as to which accused persons are categorized within the said word. If the testimony is scrutinized closely, it appears that initially, associates waiting outside the house of Sh. Vishwamitra Sharma entered the house to beat up the complainant and PW-6/Balvinder Singh and thereafter, when PW-6 ran away to the complainant's house, the said associates followed him and jumped the gate of his brother's house to commit DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:52:19 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 28 of 33 house-trespass. However, as discussed above (in paragraph 39-41 and 43), the testimony regarding existence of unknown associate persons cannot be taken into consideration due to non-identification of the said associates/non-corroboration of the existence of the said unknown associate persons (10-20) from the material on record. Therefore, PW-6 has not alleged that the arraigned accused persons committed the act of house trespass. Accordingly, PW-6/Balvinder Singh has failed to identify as to who exactly trespassed into the house of complainant and hence, his testimony is complete vague in nature, entitling the accused persons to benefit of doubt due to their non-identification by PW-6/Balvinder Singh as the assailants who committed house-trespass.
55. Thereafter, the testimony of PW-4/Smt. Kuldeep Kaur needs to be considered. There are material contradictions between the examination in chief of the said witness compared to her cross- examination. In her examination in chief, she has deposed that when they were discussing the matter at the house of Sh. Vishwamitra Sharma, a quarrel started, and the accused persons started beating them with fist and kicks. She further deposed that accused Harpreet Singh gave a fist blow to her. She further deposed that six persons had come inside the house of Sh. Vishwamitra for the concerned meeting. However, as discussed above, PW-4/Smt. Kuldeep Kaur admitted in her cross-examination that she was not present at the house of Sh. Vishwamitra, and she had remained at her residence only during the incident. Therefore, it is evident that the said witness has deposed falsely in her examination in chief regarding the quarrel and regarding the fact that she was beaten up during the DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:52:36 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 29 of 33 incident. Therefore, the testimony of PW-4/Smt. Kuldeep Kaur is wholly unreliable and cannot be taken into consideration.
56. In any case, she has not deposed anything about the house-trespass in her examination in chief. She has merely deposed that the meeting happened at the instance of Sh. Vishwamitra, and they were beaten up during the said meeting. She has only testified regarding the breaking of their washing machine, wash basin and glasses of windows during her cross-examination by the Ld. APP (after she was declared to be hostile and was cross examined by Ld. APP). Even in the said cross-examination by Ld. APP, she has merely stated that it is correct that the accused persons had broken their articles as mentioned above. However, she has nowhere testified as to which all accused persons had entered their house before committing the alleged act. Therefore, the testimony of PW- 4/Smt. Kuldeep Kaur is unreliable and vague and cannot be used to convict the accused persons.
57. Lastly, the testimony of PW-5/Smt. Seema is on similar lines to the testimony of PW-4/Kuldeep Kaur, and she has also nowhere deposed about the act of trespass at the house of the complainant after the alleged quarrel at the house of Sh. Vishwamitra Sharma. Further, her testimony is also contradictory when her examination in chief is compared with her cross- examination. As was the case with PW-4/Smt. Kuldeep Kaur, PW- 5/Smt. Seema deposed in her examination in chief that she was present when the alleged meeting happened at the house of Sh. Vishwamitra Sharma. However, she deposed in her cross- examination that she was not present at the house of Sh.
DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:52:54 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 30 of 33 Vishwamitra, and she was at the house of the complainant when the alleged meeting happened. Therefore, the testimony of Smt. Seema is also wholly unreliable, and it is evident that she has not deposed truthfully before the court. Accordingly, the said testimony cannot be relied upon to convict the accused persons.
58. Therefore, the allegations of house trespass are not substantiated based on the discussion of the testimony of the alleged eyewitnesses.
Discussion: Allegation of committing mischief
59. The next allegation is regarding mischief committed by accused persons by damaging movable property of the complainant during the house-trespass. As discussed above, the allegation of house trespass is not substantiated against the accused persons for the reasons discussed in paragraph number 52-58. Since the factum of house-trespass is not made out against the accused persons, there is no question of discussing the allegations of mischief since the house trespass was the precursor to the alleged act of causing mischief. Therefore, since the identity of the accused persons is not established during the alleged house trespass, they cannot be convicted for the alleged act of causing mischief.
60. In any case, it is pertinent to note that the seizure memo of case property cannot be relied upon since it is an admitted position that the case property was seized on 28.02.2000 whereas the incident happened on 26.02.2000. Therefore, there was a gap of two days before the IO seized the alleged case property. Considering the said delay, tampering with the case property cannot DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:53:19 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 31 of 33 be ruled out. Further, the IO has admitted that he did not take any photographs of the crime scene and the photographs on record were handed over to him by the complainant. The said photographs, handed over by complainant, have no sanctity in law and this is a serious defect in investigation since the IO did not take any crime team to photograph the scene of crime and merely relied upon the photographs allegedly provided by the complainant.
61. Further, the IO did not even seize the car or the washing machine/wash basin which were allegedly damaged by the accused persons and merely seized the broken glasses/pieces (that too after lapse of two days from the date of incident) and there is no way to ascertain that the said broken pieces belong to the damaged articles of the complainant. No bills/invoices of the damaged articles have been placed on record to ascertain the ownership of the complainant. Lastly, in any case, none of the eyewitnesses have identified which accused persons committed the house-trespass to damage the articles at the house of the complainant. Due to the said lapses in investigation and evidence, there is nothing on record to convict the accused persons.
CONCLUSION -
62. The aforesaid illegalities, omissions and discrepancies in the prosecution version create grave doubts on the version of the prosecution.
63. It is a settled position of law that the onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt DEVANSH Digitally signed by DEVANSHU SAJLAN U SAJLAN 09:53:45 +05'30' Date: 2023.09.28 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 32 of 33 which it has failed to do in the present case. I have no hesitation in holding that the accused persons are entitled to benefit of doubt in the present case.
64. Based on the above discussion, the accused persons namely (i) Harpreet Singh S/o Sh. Surjeet Singh, (ii) Harpreet Singh S/o Late Sh. Jaswant Singh, (iii) Surjeet Singh, (iv) Harjeet Singh @ Raju, and (v) Kuljeet Singh are hereby acquitted for the offences under Section 147/148/323/427/452 IPC r/w 149 IPC of the Indian Penal Code, 1860. The proceedings against the accused Jaswant Singh have already been abated.
65. Bail Bonds accepted at the stage of trial are accepted for the purpose of section 437A CrPC.
Pronounced in open court on 27.09.2023 in presence of the accused persons.
This judgment contains 33 pages, and each page has been signed by the undersigned.
DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.28 09:54:55 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/27.09.2023 Cr. Case 63639/2016 State v. Harpreet Singh & Ors. Page 33 of 33