Delhi District Court
State vs . Ashish Sharma @ Monti And Anr on 31 October, 2022
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/ SPECIAL JUDGE (NDPS),
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No : DLWT010099982021
SC No.:752/21
FIR No.: 289/20
P.S.: Mundka
U/Sec. 308/34 of IPC
State Vs. Ashish Sharma @ Monti and anr
State Vs. (1) Ashish Sharma @ Monti
S/o Sh Janardhan Sharma,
R/o H No. 532, Near Masjid
Village Bhaktawarpur, Delhi.
(2) Pradeep Lakra
S/o Sh Rishi Prakash
R/o H No 832, Firni Road, Mundka, New Delhi41.
Date of Institution : 20.12.2021
Argument heard/order reserved : 31.10.2021
Date of judgment : 31.10.2022
Final Order : Acquitted
JUDGMENT
(A) FACTS OF THE CASE :
1. Succinctly, the facts of the case unfolded from the charge sheet filed u/s 173 of Criminal Procedure Code (for short Cr.P.C) are that on 25.05.2020 at about 09:17:23 pm on receipt of GD No.39A, HC Kulveer Singh alongwith Ct Amit reached to the place of incident i.e. H No 829 Village Mundaka, Delhi where he came to know that injured Sanjay S/o Om Prakash was shifted by the PCR to the Sanjay Gandhi Memorial Hospital (in short SGM), Mangolpuri. He went to SGM State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 1/18 hospital where he obtained the MLC no. 5779/2020 of the injured with alleged history of physical assault and nature of injury was reported as simple when he did not find any eye witness on the spot Thereafter, IO HC Kulveer Singh returned to the spot where the injured Sanjay was found present and he recorded his statement Ex P1/PW1 wherein he has stated that at about 09 pm on that day when he was taking his dinner at his house, at that time the accused Pradeep @ Chintu, cousin brother of the complainant / injured Sanjay who was residing in his neighborhood came infront of the gate of the house of complainant alongwith his one another associate and started shouting and started exhorting that come out from your house and he will see him. Upon the said shouting and exhorting, the complainant came out from his house where both the accused started beating him by sticks (lathi). After hearing the quarrel, Mr Kashyap son of Complainant came there and other persons from neighborhood houses also started gathering, the accused Pradeep @ Chintu ran away from there with lathi and the complainant and his son caught hold the other boy whose name was later disclosed as Ashish Sharma r/o H No. 532, near Masjid Baktawarpur, Delhi. He has also alleged that there were 34 other boys present in the street who came there with a view to quarrel and they were wearing masks on their face and the complainant may identify them if they are produced before him. He has further stated that he has received injury on his head due to blow of lathi and somebody in the neighborhood called the police. These are the allegations of the Complainant, upon which present FIR was registered against both the accused on 26.05.2022 for the offences punishable u/s 308/34 of Indian Penal Code (In short I.P.C.).
(B) INVESTIGATION :
2. During investigation, IO ASI Sunil has prepared the site plan. IO State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 2/18 arrested the accused Ashish Sharma after his production by the complainant and seized the lathi received from the accused Ashish. He has also asked the public persons to join the investigation but nobody got ready. He has also recorded the disclosure statement of accused Ashish and produced him before the Ld MM and got him sent to the JC. He also searched the other accused Pradeep Lakra but no clue was found.
3. During further investigation the accused Pradeep Lakra was formly arrested when he obtained the anticipatory bail, his disclosure statement was recorded and he confessed to have committed the present offence but he denied the involvement of any other accused except accused Ashish with him. In his disclosure statement, the accused Pradeep Lakra has further disclosed that he had thrown the stick (lathi)after its use on the spot and had run away. During the further investigation, other suspects namely Himanshu Vats was also interrogated but his involvement was not found. After completion of investigation, challan was filed before the Ld. MM Court on 06.08.2020 for the offence punishable U/sec.
308/34 of IPC and was committed on 13.12.2021 and was received before the Ld Predecessor Court on 20.12.2021.
(C) CHARGE :
4. After hearing arguments of both the parties, a charge was framed by Ld. Predecessor Court on 04.04.2022 against both the accused for the offence punishable u/s 308 r/w Sec 34 of IPC to which both accused pleaded not guilty and claimed trial. Thereafter, matter was posted for prosecution evidence.
(D) PROSECUTION EVIDENCE :
5. In order to substantiate the allegations, prosecution examined State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 3/18 following three (3) witnesses.
6. For the sake of brevity and just decision of the case, statement of complainant is being discussed first. Complainant as PW1 has deposed that on 25.05.2020, some verbal altercation had taken place between his wife Promila and Neelam who is the mother of the Pradeep. He has further deposed that in the evening at about 9pm when he was having the dinner at his home then 34 family members came outside his house and started shouting. He has further deposed that he came out from his house and those 34 persons immediately attacked him with lathi and danda on his head. He has further deposed that on hearing his voice, his son Kashyap also came out of the house. He has further deposed that he does not know those persons as all of them were wearing the mask. He has further deposed that he had apprehended one of them and he did not know his name when police officer came at the spot. He has further deposed that he had handed over the said person to the police officer. He has further deposed that he can not identify the said person as on that day he was wearing the mask. He has further deposed that he had sustained injury on his head. He has further deposed that the PCR van came at the spot and shifted him to the hospital. He has further deposed that after treatment at the hospital, he was discharged. He has further deposed that police had recorded his statement and got the FIR registered. He has further deposed that he could not identify the other accused persons who came at his house and injured him. Since this witness has not supported the case of the prosecution on the point of identity, he was extensively cross examined on behalf of the State after declaring him hostile and thereafter, he was discharged recording to opportunity to cross examine NIL on behalf of accused.
7. In his crossexamination PW1 admitted that he signed the statement State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 4/18 Ex P1/PW1 but by way of voluntary statement he has deposed that police official had obtained his signatures in the hospital when he was in semiconscious condition. He has further admitted that FIR Ex P2/PW1 as well as the site plan, Ex P3/PW1 both bears his signature. He has also admitted that the arrest memo, Ex P4/PW1 and personal search memo, Ex P5/PW1 of the accused Ashish both bears his signature. He has also admitted that the seizure memo of lathi Ex P6/PW1 also bears his signature. However, by way of voluntary statement he has deposed that police official had obtained signature in the hospital when he was taking treatment and was in semiconscious condition. During further crossexamination he identified the accused Pradeep as son of his uncle. However, in his entire cross examination on behalf of State he has denied any role of any of the accused and even failed to identify the accused Ashish as well as the case property/ danda. He has denied all the suggestions given to him on behalf of the State regarding his statement u/s 161 of Cr.P.C made to the police Mark P1/PW1 as well as contents of complaint Ex P1/PW1 except his signature upon the complaint.
8. The prosecution examined Sh Kashyap Lakra, Son of the complainant as PW2. He has deposed that on 25.05.2020, he was present in his house and was taking dinner with his father when someone was calling his father. He has further deposed that his father went outside. He has further deposed that after few minutes he heard the noise of his father who was shouting and also the commotion of the public so immediately he went outside and found that his father was beaten by 34 persons with danda and legs and punches. He has further deposed that he rescued his father and on seeing the public all the persons were successful in running away from the spot except one person. He has further deposed that all the persons were wearing mask so he could not see their faces.
He has further deposed that the person who was apprehended was handed over to State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 5/18 the public person and he got busy in providing medical help to his father who had sustained injuries on his head. Since this witness has not supported the case of the prosecution on the point of identity, he was extensively cross examined on behalf of the State after declaring him hostile.
9. In his crossexamination PW2 admitted that accused Pradeep @ Sintu is uncle (chacha). However, in his further crossexamination he has denied making any statement u/s 161 of Cr.P.C Mark P1/PW2 to the police. He has denied that he told to the police that accused Pradeep @ Sintu alongwith his one associate was beating his father / PW1 with lathi or that when he raised alarm the public persons were gathered there. He has further denied that the accused Ashish Sharma was apprehended in his presence alongwith lathi and was handed over to the police. He has denied the suggestion that he came out from the house after hearing the noise and saw both the accused beating to his father. This witness also failed to identify the weapon of offence/lathi, Mark P1 as well as accused Ashish Sharma. However, this witness was not cross examined on behalf of accused persons.
10. The prosecution lastly examined IO ASI Sunil Kumar as PW3 who has deposed that on 26.05.2020, the investigation of the present case was marked to him. He has further deposed that Ct Amit had handed over the original rukka, Ex P1/PW3 and the copy of FIR, Ex P2/PW1. He has further deposed that thereafter he alongwith Ct Amit reached at the spot i.e. plot no. 832, PS Mundka where he met Kashyap Lakra/ PW2 and HC Kulbir who were found apprehending the accused Ashish Sharma. He has further deposed that the Kashyap Lakra/PW2 disclosed that the injured had been shifted to the SGM Hospital and when PW3 was still present at the spot, injured Sanjay came back after being discharged from State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 6/18 the hospital. He has further deposed that at the instance of injured Sanjay the accused Ashish was arrested after his personal search and recording of his disclosure statement Ex P2/PW3. He has further deposed that injured Sanjay/PW1 had handed over the bamboo danda which he had snatched from the hands of the accused Ashish which was converted into pullanda and was seized vide seizure memo Ex P6/PW1. He has further deposed that he prepared the site plan Ex P3/PW1.
11. PW3 has further deposed that during further investigation he got the accused Ashish medically examined and thereafter, accused Ashish was sent to JC after production before Ld MM. He deposited the case property in the Malkhana. During the further investigation, he arrested the accused Pradeep vide arrest memo Ex P3/PW3 after recording his statement Ex P4/PW3 as he was granted anticipatory bail. He has further deposed that during further investigation he interrogated one Himanshu, a suspect in the present case but his involvement was not found. He has further deposed that he collected certificate under Sec 65 B of Indian Eviden Act Ex P7/PW3 from the Duty officer, DD no.39A Ex P8/PW3 and MLC Ex P9/PW1 of the injured. In his examination in chief he has correctly identified both the accused as well as bamboo danda Ex M1/ PW3.
12. All witnesses were discharged after recording the opportunity to cross examine the witnesses as NIL on behalf of the accused. After completion of prosecution evidence, matter was posted for statement of accused.
STATEMENT OF ACCUSED :
13. On 26.09.2022, statement of both the accused were recorded u/s 313 Cr.P.C separately. In their statement, accused persons denied the material State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 7/18 allegations levelled against them and stated that they are innocent and have been falsely implicated in this case. Accused persons have further stated that they were falsely implicated by the police. Accused persons have further stated that there was no quarrel took place. Accused Pradeep Lakra in his statement has stated that he is 75% handicapped and therefore, he even cannot run away like ordinary person. Both the accused have stated that the entire story of the prosecution is concocted one. However, none of the accused have opted to lead DE. Hence, matter was posted for final arguments.
FINAL ARGUMENTS :
14. Final arguments heard on behalf of both the parties. I have also gone through the record. I have also gone through the relevant provisions of law.
15. It has been submitted on behalf of the State that PW1/injured has himself admitted his signature upon the complaint, Ex P1/PW1, FIR Ex P2/PW1, site plan Ex P3/ PW1 , arrest memo of accused Ashish Ex P4/PW1 and seizure memo of the lathi, Ex P6/PW1. It has been further submitted that PW1 and PW2 both have identified the accused Pradeep Lakra. It has been further submitted that the injury of the complainant has been proved vide MLC, EX P9/PW1 wherein it is opined that the injured PW1 received the injury on parietal region measuring 2cm X 0.5 cm X 0.5 cm which is sufficient in ordinary course to cause culpable homicide not amounting to murder and thus it has been argued that this injury was caused by the lathi in furtherance of common intention by both the accused in order to cause death of the injured/ PW1. It has been further submitted that PW 1/ complainant has proved the complaint Ex P1/PW1 and other witnesses stood firm on their leg through out their testimony and categorically narrated the acts of the beating and manner of committing same upon the complainant and though State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 8/18 PW1 and PW2 could not identify the accused persons but PW3 has categorically identified both the accused as well as weapon of offence/ lathi and thus, the case of the prosecution stands proved beyond reasonable doubt. Therefore, it has been prayed that accused persons may be held guilty for the offences charged with.
16. On the other hand, apart from several other arguments, learned defence counsel has argued that accused persons are innocent and have been falsely implicated in this case on the false statement of the complainant who himself has not supported the case of the prosecution. It has been further submitted that son of complainant/PW2 has not supported the case of the prosecution. It has been further submitted that police has recorded false statement without fair investigation to implicate the accused persons falsely for extraneous consideration. It has been further submitted that there are material contradictions in the statements of PW1 , PW2 and PW3 regarding the arrest of the accused Ashish Sharma and recovery of the weapon of the offence. It has been further submitted that no public person was joined the investigation against the accused in order to prove the allegations against them though as per prosecution story there were number of public persons present at that time at the spot. It has been further submitted that the prosecution witnesses can not be believed or trusted as there are material concoction and contradictions in the depositions interse with regard to the manner in which alleged incident of beating had happened . It has been further argued that except bald statement, there is nothing on record to show or reflect that both the accused had at any point of time beaten the complainant/ PW1. It has been further submitted that prosecution is supposed to prove the ingredients of all the penal provisions beyond reasonable doubt and in this case there is nothing on record to prove by cogent evidence that the complainant was brutaly beaten by any of the accused. On these grounds, it is State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 9/18 prayed that accused may kindly be acquitted.
RELEVANT PROVISIONS OF LAW AND CASE LAW :
17. Section 34 : When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Thus, this provision stresses upon the existence of common intention as well as participation of each accused by committing a 'criminal act', not necessarily in itself amounting to an offence. Common intention may be proved by conduct, as it can be formed in the course of occurrence itself, and there is no need to specifically prove a pre mediation or prior conspiracy.
18. Section 308 : Attempt to commit culpable homicide : Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
19. In case titled as Dana Yadav @ Dahu & Ors vs State of Bihar (2002), it has been held by the Hon'ble Supreme Court of India that:
"Section 9 of the Evidence Act deals with relevancy of acts necessary to explain or introduce relevant facts. It says, inter alia, that facts which establish the identity of any thing or person whose identity is relevant, in so far as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 10/18 an accused by a witness in Court is substantive evidence, whereas evidence of identification in a test identification parade is, though primary evidence, but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in a court, it being governed essentially by the provision of Section 162 of Cr.P.C. In Vaikuntam Chandmppa and Ors vs State of Andhara Pradesh (AIR1960 SC 1340) the Hon'ble Supreme Court observed that the substantive evidence of a witness is his statement in Court but the purpose of test identification is to test that evidence of a witness is his statement in Court, but the purpose of test identification is to test that evidence, and the safe rule is that the sworn testimony of witnesses in Court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceedings, or any other evidence.
20. The Hon'ble Supreme Court in a judgment Rai Sandeep Alias Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21 has observed that:
"A "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved as well as the sequence of it. Such a version should have co relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 11/18 stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
21. Dealing with the aspect of minor discrepancies, contradictions, the Hon'ble Supreme Court of India in the matter of Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
22. In the light of above discussed provisions of law, principles of law and defence taken by the accused, I propose to examine the evidence available on State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 12/18 record as to whether :
(a) the complainant was beaten and received such injuries which were likely to cause death in ordinary course.
(b) Any of the accused had caused injury of above nature.
(c) Whether both the accused had common intention to cause above
injuries.
FINDINGS:
23. In the present case, both the accused have been charged with the allegations that on 25.05.2020, at about 09 pm at plot no. 832, Village Mundka, Delhi in furtherance of their common intention voluntary caused injuries to Sanjay and Sh Himanshu with lathi with such intention or knowledge and under such circumstance that if by that act, they have caused the death, they would have been guilty of culpable homicide not amouting to murder.
24. Both the accused have denied the said allegations stating that on the date of alleged incident, no such quarrent took place and they have been falsely implicated by the police without making proper investigation.
25. In the present case, injured was examined as PW1 but he has not supported the case of prosecution. Even the other witness, PW2 has not supported the case of prosecution. Both the witnesses are hostile on the point of identify of the accused Ashish and they had denied any involvement of any of the accused causing injury upon the person of PW1.
26. In the present case, the law was set in motion vide DD no.39A, Ex P8/PW3 wherein the information was given of quarrel. Thus, in the first State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 13/18 information given to the police there was no mention of beating by any of the accused persons though as per prosecution story the accused Pradeep is the cousin brother of the PW1 and cousin uncle of PW2. Thus, there was all probability of atleast naming accused Pradeep of causing injury. Instead of that the call is of quarrel and thus, it corroborate the version of PW1 deposed by him in the Court that a quarrel took place between his wife and mother of Pradeep.
27. In the present case, as per complaint the accused Pradeep run away from the spot alongwith lathi but as per prosecution story set forth through seizure memo, Ex P6/PW1, the lathi was recovered from the possession of accused Ashish. However, in his entire complaint Ex P1/PW1 there is no mention that any such lathi was snatched from the accused Ashish by the complainant/ PW1 or his son PW2. Even both the witnesses have denied that any such lathi was seized at their instance or in their presence.
28. Even in the testimony of PW3/ IO the seizure of lathi has been shown on the next day on 26.05.2020 after return of PW1 from the hospital. However in the entire MLC there is nothing to show that PW1 was even hospitalised on 25.05.2020 or discharged on the next day. Thus, this story of the prosecution of the recovery of bamboo lathi on the next day becomes suspicious.
29. It is a settled legal proposition that once the statement of injured inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the injured and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of his statement. Corroboration of testimony of the injured as a condition for judicial reliance is not a requirement of law but a guidance of State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 14/18 prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. An injured complaining of having been beaten cannot be said to be an accomplice after the crime. His testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to criminal charge. However, if the court finds it difficult to accept the version of the injured on its face value, it may search for evidence, direct or substantial, which may lend assurance to his testimony.
30. In this case, the evidence of the injured/PW1 and his son /PW2 alongwith other evidence are suffering from serious infirmities and inconsistencies with other material and they had even failed to identify the accused Ashish and there are deliberate improvements/ concealments/ contradictions on material point including the fact regarding the recovery of weapon of offence and role of the accused persons as even in complaint, Ex P1/ PW1 and statement Mark P1/PW2, there is contradiction regarding the recovery of lathi.
31. Even it appears to be strange that the accused Ashish Sharma remained at the spot till the next day as in the present case, the incident is alleged to have happened on 25.05.2020 at 9 pm and arrest of the accused Ashish Sharma has been shown on 26.05.2020 at 10.30 am after about 12 hours. This fact itself casts doubt about the prosecution story. Further, it appears from the record that a minor scuffle took place on the spot and it appears that 34 other persons reached at the house of the complainant wearing mask and out of fear it appears that the matter was reported to the police by the neighbour regarding the quarrel on the spot.
State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 15/1832. Furthermore, in the entire testimony, PW1 has not deposed that the injury was caused upon his person with intention or knowledge to cause his death nor the witness PW2 has supported the version of prosecution story of causing injury of such nature likely to cause death in ordinary course. Even the MLC Ex P9/PW3 makes it clear that the nature of injury upon the person of PW1 was simple in nature. Thus, at the best even if the complaint and MLC are treated to be correct one, this case false for causing simple injury punishable u/s 323 of IPC which is otherwise compoundable one and therefore, even for the sake of arguments if the suggestion given on behalf of State that both the witnesses PW1 and PW2 have settled the case outside the Court and therefore, intentionally have not supported the case of the prosecution are accepted to be correct, it does not make any difference to the merits of the prosecution case. The story of the prosecution is full of contradiction especially on the point of apprehension and arrest of the accused Ashish as witness PW3 has deposed that when he reached on the spot on 26.05.2020, he found Kashyap Lakra/PW2 and HC Kulveer apprehending the accused Ashish Sharma which is contrary to the testimony of PW2 who has stated that the accused Ashish was handed over to the public person. Further, in the present case, as per prosecution story the public persons gathered on the place of incident but no such public person has been joined the investigation. Even the caller of the phone who informed to the police about the quarrel has not been arrayed as a witness which itself creates a doubt about the prosecution story. Moreso, both the public witness / injured PW1 and PW2 have categorically denied the role of any of the accused regarding the commission of any offence, their testimony itself casts serious doubt about the veracity of the prosecution story.
33. The Hon'ble Supreme Court further held in "AIR 1974 344.
State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 16/18Harchand Singh and Another vs State of Haryana" as under: "11. The function of the court in a criminal trial is to find whether the person arranged before it as the accused is guilty of the offence with which he is charged. For this purpose the Court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable, the result would necessarily be that the court wold be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation".
34. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
35. Thus, in view of the aforesaid discussions, it is held that the prosecution has failed to prove its case against both the accused beyond reasonable doubt. Accordingly, the accused persons namely Ashish Sharma @ Monti and Pradeep Lakra stand acquitted for the offences charged with.
36. Bail bond of both the accused stands cancelled. Sureties are discharged. Original documents, if any of both the sureties be returned after cancellation of endorsement, if any upon it.
State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 17/1837. Both the accused persons are directed to furnish fresh personal bail bonds / personal bonds in the sum of Rs 30,000/ and a surety of like amount each in terms of section 437A of Cr.P.C.
38. Case property, if any, be destroyed after the expiry of period of appeal.
(Devendra Kumar Sharma) ASJ/Special Judge (NDPS) West District, THC / Delhi/31.10.2022 Announced in open Court on 31.10.2022 (Total number of pages 18) (One spare copy attached) State Vs. Ashish Sharma @ Moni and anr FIR No.752/21 , PS Mundka Page No. 18/18