Delhi District Court
State vs . Amit Yadav on 30 August, 2018
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MAGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.151/09
PS: Karol Bagh
State Vs. Amit Yadav
U/s: 279/337 IPC
Unique Case ID No. 301595/16
JUDGMENT
(a) Sr. No. of the Case 301595/16
(b) Date of offence 21.10.2009
(c) Complainant Sh. Ajay Kumar Gupta, S/o. Sh. Mooga Lal, R/o.
House No. 210, Gali No.3, Mandawali, Fazalpur,
New Delhi.
(d) Accused Amit Yadav, S/o. Late Sh. Ghanshyam, R/o.
House No. 4214, Gali Aihran, Pahari Dhiraj, New
Delhi.
(e) Offence 279/337 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 06.02.2010
(i) Date when judgment was 30.08.2018
reserved
(j) Date of judgment 30.08.2018
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Karol Bagh against accused person Amit Yadav for the offence U/s 279/337 IPC.
2. It is the case of the prosecution that on 21.10.2009, at about 2:00 am, at Faiz Road, near Sun Palace Hotel, within the jurisdiction of PS Karol Bagh, accused was found driving a Santro Car bearing no. DLK-7CA- 9603 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle in the FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.1 of 17 aforesaid manner he hit against TSR bearing registration no. DL-1RK- 2014 and caused grievous injuries to Ajay Kumar Gupta and Ratan and thereby committed an offence under Section 279/337 IPC.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused person Amit Yadav in compliance of Section 207 Cr.P.C. Thereafter, charge under Section 279/337 IPC was framed against the accused by the Ld. Predecessor of this court vide order dated 12.04.2010 to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 8 witnesses.
6. PW-1 is Ajay Kumar, who deposed that the incident was of 21.10.2009 at around 1:30 am, that at the time of incident, he used to drive the auto rickshaw, that on the day of incident, at about 1:00 am, he lifted the passengers from ISBT for Narayana, Delhi, that at about 1:30 am, when his auto rickshaw reached near Faiz Road, before Hanuman Mandir, in front of Sun Palace Hotel, Karol Bagh, Delhi, he saw that truck, number of which he do not remember was coming from the front side and at the same time, one Santro Car bearing no. DL-7C-A-9609 overtake the said truck and its driver was driving it in a zig zag manner, that on seeing this, he put his auto rickshaw near the pavement on his side but the said Santro Car struck his auto rickshaw on its right front side, that due to which, his auto rickshaw got damaged, that one passenger namely Ratan whose father name he do not remember today was sitting in his auto rickshaw who sustained injuries due to the said accident and he also sustained injuries, that he made call at number 100 regarding the said incident, that PCR van and ambulance came to the spot and took them to FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.2 of 17 RML Hospital where they were medically examined, that he correctly identified the accused in the Court, that the accused was driving the santro Car in a zig zag manner and in a very high speed, that police officials also came to the hospital and recorded his statement which is Ex. PW-1/A, that he has shown the place of incident to the police officials and the same is Ex. PW-1/B, that the auto rickshaw was of Vinod Yadav and he drove the said auto rickshaw on rent basis, that police officials arrested the accused and personally searched him in his presence which is Ex. PW-1/C and Ex. PW-1/D, that he has correctly identified the offending vehicle through photographs marked as Mark X-1 to X-4, that he has also identified the photographs of auto rickshaw marked as Mark X-5 to X-8.
7. In the cross examination he deposed that first of all, police officials of 100 number met him at the spot, that at that time, he was standing just adjacent to his vehicle, that local police officials met him in the hospital, that local police came to the hospital after half an hour of his reaching to the hospital, that within half an hour of the incident, they had reached to the hospital, that his statement is Ex. PW-1/A was recorded by the police officials at the PS and his signature was obtained at about 8:00/9:00 am when his statement was recorded, that all his signatures on documents Ex. PW-1/B, Ex. PW-1/C and Ex. PW-1/D were obtained at the same time when he signed Ex. PW-1/A, that police never met him in connection of this case after obtaining his signatures. He further deposed that he had stated to the police that accused was driving his Car in Zig-Zag manner and he put his auto rickshaw near the pavement on his side and the said Santro Car struck his auto rickshaw on its right front side. He was confronted with his statement Ex. PW-1/A where the 'front' is not mentioned. He deposed that he had seen the Santro Car for a distance of about 200 meters. When Court enquires about the meaning of measurement of 200 meters, the witness pointed a Car parked outside the Court premises looking at the Car fro the window of the Court room, however, the the said car was stained 60-70 meters away from the Court Room. He further deposed that he could not observe the colour of the FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.3 of 17 said offending Santro Car since there was no proper light, however, he had read the number of the Car, that there was no vehicle ahead of the truck, that the truck was seen by him from the same distance as of Santro Car, that he cannot tell the width of the road. He voluntarily deposed that there was no divider on the road, that about 5-6 TSR can go through impugned road at a time in one direction, that his TSR was stopped at the spot of accident after being hit by the said offending Santro Car. He voluntarily deposed that his TSR could not move since one Maruti 800 was behind his TSR and the same has also got damaged. He further deposed that Maruti 800 car was parked half on pavement and half one the road, that the said Santro Car stopped after a distance of 10 feet, that the truck did not stop at the spot, that when the accident occurred, the truck had crossed him. He denied that the said accident was caused by the truck, he compromised with the truck driver and later on he falsely implicated the accused in the present case. It is put to the witness whether the said Santro Car got damaged by hit of the truck, to which he stated that the Santro Car got damaged since it had hit his TSR. He further deposed that he saw the accused first time at the spot of accident itself. He denied that the said Santro Car was stationed at the spot and the truck hit the Santro Car, his TSR and other vehicles or that accused was not driving the vehicle or that he is deposing falsely or that said Santro Car did not struck his TSR.
8. PW-2 is Vinod, who is the registered owner of TSR bearing registration no. DL-1R-K-2014, deposed that above said TSR was driven by Ajay Kumar on 21.10.2009, that the said TSR was got damaged in an accident in the area of Karol Bagh, that he got released the above said TSR on superdari vide supderdarinama Ex. PW-2/A. Witness has correctly identified the photographs of the TSR marked as Mark X-5 to X-8.
9. In the cross examination he deposed that the said TSR is registered in his name and he had given the copy of RC of the said TSR to the IO. He denied that he is deposing falsely.
10. PW-3 is Dr. Faisal Shadab, who deposed that he has been working in FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.4 of 17 RML Hospital since 2011, that he has seen Dr. Mritunjay writing and signing during ordinary discharge of officials duties in the above said hospital, that he can identify the signatures and handwriting of the above said doctor, that he has seen X-ray report of Ratan as well as injured jay Kumar Gupta, that the same are in the handwriting of Mritunjay, the above said X-Ray reports are Ex. PW-3/A and Ex. PW-3/B bearing the signature of Dr. Mritunjay at point A, that as per X-Ray report not bone injury was seen on the person of both the above said injured.
11. PW-4 is Smt. Lakshmi, Record Clerk from RML Hospital, deposed that she has been working in the above said hospital since 1995, that he has seen Dr. Ranjeet Singh and Dr. Mayank Singh writing and signing during ordinary discharge of official duties in the above said hospital, that both the abovesaid doctors have left the services of the hospital and their present whereabouts are not known, that she has seen the MLC of injured Ajay Kumar Gupta and the MLC of injured Rattan which are in the handwriting of Dr. Ranjeet Singh, that the same are Ex. PW-4/A and Ex. PW-4/B bearing the signatures of Dr. Ranjeet Singh at point A on both the above said MLCs, that the injuries have been opined by Dr. Mayank Singh as simple in his own handwriting at point B bearing the signature of Dr. Mayank at point C.
12. In the cross examination, she admitted that all the MLCs prepared in the casualty and not in the record room. she deposed that she is graduate, that the MLCs are prepared in triplicate, that she has not brought the record of the above said MLCs.
13. PW-5 is ASI Raj Kumar, who deposed that on 21.10.2009, he was posted as HC at PS Karol Bagh, on that day, he received a rukka from Ct. Satbir sent by SI Man Singh, that he registered the FIR Ex. PW-5/A, that he also made endorsement on the rukka Ex. PW-5/B.
14. PW-6 is Tasinmuddin, who deposed that on 21.10.2009, on the request of Man Singh PS Karol Bagh he had inspected the three vehicles and FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.5 of 17 submitted his detailed reports as Ex. PW-6/1 (colly).
15. PW-7 is HC Satyaveer, who deposed that on 21.10.2009, he was posted as HC at PS Karol Bagh, that on that day, DD No. 3-A regarding accident was received at the PS so he along with SI Maan Singh went at the spot i.e Faiz Road, Near Sun Palace Hotel, that there they found that TSR No. DL-1RK-2014, Santro Car bearing no. DL-7CA-9609 and Maruti Car No. DL-8CB-3408 were in accidental condition, that no eye witness was found at the spot, that at the spot they came to know that injured persons were taken to hospital, that IO went to the hospital leaving him at the spot, that IO came back to the spot along with accused Amit Yadav, that IO has given him the rukka for registration of FIR, that he went to the PS and got registered the FIR, that on return at the spot, he handed over the FIR and original rukka to the IO, that Maruti Car No. DL-8CB-3408 was taken into possession vide seizure memo Ex. PW-7/A, that Sntro Car No. DL-7CA-9609 was taken into the possession vide seizure memo Ex. PW- 7/B, TSR No. DL-1RK-2014 was taken into the possession vide seizure memo Ex. PW-7/C, that driving license of accused Amit was taken into the possession vide seizure memo Ex. PW-7/D, that RC of the accused Amit was taken into the possession vide seizure memo Ex. PW-7/E, that IO prepared the site plan Ex. PW-1/B, that accused Amit Yadav was arrested vide arrest memo which is Ex. PW-1/C and his personal search was conducted vide memo Ex. PW-1/D, that he has correctly identified the photographs of Santro Car No. DL-7CA-9603 marked as Mark X-1 to X-4 and photographs of TSR marked as Mark X-5 to X-8.
16. In the cross examination he deposed that he has not called upon the photographer, that he do not know when photographs mark X-1 to X4 and X-5 to X-8 were taken, that photographs were never taken in his presence. He further deposed that he along with SI Maan Singh reached at the spot at around 2:35 am, that he had carefully seen the TSR, Maruti and Santro Car, that the colour of Maruti Car was white. He again said that he do not remember the colour of said Maruti Car, that when they reached at the spot they saw the Santro Car was standing left side of the FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.6 of 17 road, that if they go from Faiz Road to D.G.B Road, that while the TSR was standing on the right side of the road. It is put to the witness explain what was the position of the vehicles when he reached at the spot, to which he stated that Maruti car was standing adjacent to the path. He voluntarily deposed that Santro car came behind TSR after hitting it. He further deposed that the hotel Sun Palace is the opposite side of the position of Santro Car, that the TSR was standing first thereafter the Maruti Car was standing thereafter Santro was standing, that he cannot tell the distance amongst all the vehicles, that he remained at the spot by 4:30 am, that after registration of FIR, he came at spot at about 5:15 am, that when he came back at the spot, accused Amit Yadav and driver of TSR were already present there, that all the above said documents were signed by him on same day i.e. 21.10.2009, that when he came back at the spot, he left the spot after 6:00 am. He denied that he had not gone to the spot, that no proceedings was done in his presence or all the proceedings were done while sitting in PS, that he is deposing falsely at the instance of IO.
17. PW-8 is Retired SI Maan Singh, who deposed that on 21.10.2009, he was posted as a SI at PS Karol Bagh, that on that day, on receiving DD No. 3A Ex. PW-8/A, he along with Ct. Satyabir Singh reached at the spot i.e. near Sun Palace Hotel, Karol Bagh, Delhi, that one TSR bearing no. 2014, Santro Car 9609 and one Maurti Car 800CC bearing no. 3408 were standing in an accidental condition, that it came to his knowledge that injured had been taken to RML Hospital, that Ct. Satyabir remained at the spot and he left for the hospital, that two injured persons namely Rattan and Ajay Kumar (TSR Driver) were found admitted there, that accused Amit was standing there, that he recorded the statement of complainant Ajay Kumar Ex. PW-1/A, that he along with accused Amit reached at the spot, that he prepared the rukka Ex. PW-8/A and handed over the same to Ct. Satyabir for registration of case, that before sending the Ct. Satyabir, he seized all the said three vehicles vide seizure memo Ex. PW-7/A, Ex. PW-7/B and Ex. PW-7/C, that Ct. Satyabir left the spot for registration of case, that in the meantime, injured Ajay Kumar came FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.7 of 17 at the spot and he prepared site plan at this instance Ex. PW-1/B, that he recorded the statements of witnesses, that Ct. Satyabir came back at the spot and handed over the copy of FIR and original rukka to him, that he arrested the accused and conducted his personal search vide memos Ex. PW-1/C and PW-1/D, that case property was deposited in Malkahana, that before it, all the above 3 vehicles were mechanically inspected vide memos Ex. PW-6/1 (colly), that later on, case properties were released on Superdari, that the relevant documents like MLCs with result etc., were placed on record, that during investigation, he also seized driving license and RC and insurance of accused and offending vehicle vide memos Ex. PW-7/D and Ex. PW-7/E, that challan was filed by him in the Court with all the documents, that photographs of Santro Car and TSR are marked from X-5 to X-8 and X-1 to X4, that witness has identified the case property from the photographs, that the owner of the Maruti Car bearing no. DL-8C-B-3408 is not traceable.
18. In the cross examination, he deposed that he along with Ct. Satyabir Singh reached at the spot at about 2:30 am or 3:00 am (midnight), that Santro Car as well as Maruti Car were standing over there at the spot, that TSR was also there, that he do not remember what was the distance amongst the above-said vehicles which were standing at the spot, that he used to go from the Faiz Road in routine manner during the said period of his service, that he do not remember the width of faiz road where the accident took place amongst the vehicle, that the TSR was standing on the left side of the road, if they proceed towards Link Road Chambry, that when they reached at the spot the car had already been parked near the TSR, that he do not remember, if the said TSR was standing on the left side of the road or the right side of the road, if they proceed towards Link Road Chambry, that the Maruti Car was standing on the patri/pavement on the left side of the road if they proceed towards Link Road Chambry, that when they reached at the spot, they notice that Maruti car was standing ahead of TSR and the Santro Car was behind the TSR, that he cannot tell the distance between the said vehicle, that he do not know through whom he came to know that injured had already been taken to FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.8 of 17 the hospital, that he remained at the spot at about 6:00 am morning, that he came back to police station, that between the period of 3:00 and 6:00 am, he remained at the spot and he did not go anywhere, that no eye witness was found present at the spot during this period. He again said, the owner of Maruti Car had came at the spot, that the injured Rattan Kumar and Ajay had also came. He again said only Ajay Kumar had came at the spot. He deposed that he do not remember the time when all the said came to the spot, that Ajay Kumar/Witness came at police station once or twice in order to make inquiry regarding his case and to get his TSR released on superdari, that he had conducted the writing work while sitting in front of Sun Palace Hotel, that it was not required to ask any person from Sun Palace hotel with regard to the incident. H again said the writing work was done while sitting on the staircase of the Sun Palace Hotel. He further deposed that the Ct. was sent to get registered the FIR to the police station during this period, that he was sent to get registered the FIR at about 4:30 am early in the morning from where he came back at about after one hour, that he do not remember the colour of the above-said Maurti Car, that he do not remember the colour of the above-said Santro Car also, that he do not remember whether he had seized the relevant documents of the Maruti car or not, that he do not remember on what portion, the vehicles in question sustained damage, that the statements of the witnesses were also recorded while sitting on the staircase of the hotel of Sun Palace. He denied that he did not visit the spot at any point of time and all the writing work was done while sitting at PS, that he is deposing falsely and accused has been falsely implicated in the present case or he did not conduct the property investigation of the present case.
19. It is pertinent to mention here that injured Ratan has not been examined in the present case to substantiate the allegations in question as he was not traceable. Accordingly, he was dropped from the list of witnesses vide order dated 26.11.2014 passed by Ld. Predecessor being untraceable.
20. It is also pertinent to mention here that PW Rohit Kumar also not FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.9 of 17 examined in the present case, as he was also dropped from the list of witnesses vide order dated 26.11.2014, being untraceable passed by Ld. Predecessor.
21. Thereafter, PE was closed and matter was fixed for SA. Statement of the accused Amit Yadav under Section 313 Cr.PC was recorded vide order dated 25.10.2017 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused did not chose to led DE, therefore, DE was closed and the matter was fixed for final arguments.
22. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
23. Perusal of the record reveals that accused Amit Yadav was charged with the offence under Section 279/337 IPC.
24. Section 279 IPC stipulates that:-
"Rash driving or riding on a public way-
whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
25. Section 337 stipulates that:-
"Causing hut by act endangering life or FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.10 of 17 personal safety of others- whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description fro a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
26. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
27. These words i.e. "Rash" and "Negligent" have not been defined in the Indian Penal Code. However, as per Blacks Law Dictionary, 8th Edition the word 'Negligent' is characterized by the persons failure to exercise the degree of care that someone of ordinary prudence would have exercise in the same circumstances.
28. The Oxford Advanced Learner's Dictionary, 6th addition defined 'Rash' as doing something that may not be sensible without first thinking about the possible result.
29. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.11 of 17 of injury to the public or a person or a individual.
30. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the questions as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be a sufficient considering all the circumstances of the case.
31. It is the case of the prosecution that on 21.10.2009, at about 2:00 am, at Faiz Road, near Sun Palace Hotel, within the jurisdiction of PS Karol Bagh, accused was found driving a Santro Car bearing no. DLK-7CA-
9603 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle in the aforesaid manner he hit against TSR bearing registration no. DL-1RK- 2014 and caused grievous injuries to Ajay Kumar Gupta and Ratan and thereby committed an offence under Section 279/337 IPC.
32. Perusal of the record reveals that injured/public witness Rohit Kumar and Ratan has been dropped from the list of witnesses being untraceable vide order dated 26.11.2014 passed by Ld. Predecessor.
33. Only one public witness has been examined namely Ajay Kumar who is the complainant in the present matter. PW-1 Ajay Kumar deposed that driver of the offending vehicle was driving the vehicle in zig zag manner and he disclosed this fact to police officials, whereupon he was confronted with his statement recorded by the police wherein it is not so recorded, therefore it is material improvement in the testimony of PW-1. He also deposed that offending was being driven at the high speed, however he has not mentioned the approximate speed of the vehicle in question so as to decide whether the speed of the offending vehicle is covered under rash and negligent act or not. He failed to specifically depose and impute mode and manner of rash and negligence in driving the offending vehicle by the accused. Furthermore, in the cross FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.12 of 17 examination PW-1 categorically deposed that he could not observe the colour of the offending vehicle since there was no proper light. It is pertinent to note that PW-1 has read the number of the car but could not see the colour of the car due to lack of light which is highly improbable. Therefore, identity of offending vehicle is also doubtful.
34. Other witnesses are formal in nature who cannot prove the guilt of the accused beyond reasonable doubt.
35. In view of aforesaid testimony the only eye witness failed to impute any kind of rash and negligent act on the part of the accused in order to substantiate the case of prosecution and thereby failed to establish guilt of the accused beyond reasonable doubt.
36. Admittedly accident happened at the public place, however, no other public witness has been made to join the investigation for the reasons best known to the investigating agency.
37. No plausible explanation have been given for not making other independent public witnesses except the PW-1 to join the investigation.
38. The non-joining of public witnesses, except the injured persons is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
39. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.13 of 17 In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.14 of 17 admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. 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 Subhash Bazar, there would be no person present at a crucial time like 7.30 pm 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 have 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 made to join any public witness even though FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.15 of 17 number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a 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 IO 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.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.16 of 17 In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
40. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, considering that another injured Ratan and public witness Rohit have not been examined in the case in hand, contradiction in the testimony of injured/key witnesses and in the absence of other independent witnesses, the prosecution has failed to establish its case against the accused Amit Yadav beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Amit Yadav stands acquitted of the offences under Section 279/337 IPC accordingly.
41. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
42. File be consigned to the record room after due compliance.
43. Issue notice injured persons to appear before DLSA, Central on 04.09.2018 for the purpose of compensation as per mandate of judgment passed by Hon'ble High Court in Satya Prakash's Vs. State : 203 (2013) DLT 652.
44. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 04.09.2018 Digitally signed SHILPI by SHILPI JAIN Date: Pronounced and Signed JAIN 2018.08.30 18:05:51 +0530 in the Open Court on 30.08.2018 (Shilpi Jain) MM-01(Central)/THC/Delhi 30.08.2018 FIR No. 151/09 PS Karol Bagh State Vs. Amit Yadav Page No.17 of 17