Delhi District Court
State vs . Sadre Alam And Anr. on 23 September, 2019
FIR No.59/18
State Vs. Sadre Alam and anr.
Police Station : South Rohini
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 168/19
CNR no. : DLNW010019492019
State
Vs
1. Sadre Alam
s/o Sh. Abdul Rahim
(Since expired)
2. Mohd. Tamanna
S/o Sadre Alam
Both r/o Jhuggi No. 6, Indira J.J.Camp,
Sector 3, Rohini, Delhi
FIR No. : 59/2018
Police Station : South Rohini
Under Section : 308/34 Indian Penal Code
Date of Institution in Sessions Court : 25.02.2019
Date when judgment reserved : 23.09.2019
Date when judgment pronounced : 23.09.2019
JUDGMENT
1. The case of the prosecution in brief is that on 12/3/2018 an information was received at PS South Rohini regarding quarrel at J.J. Camp, Jhuggi near Jaipur Golden Hospital. Delhi and this information Page No. 1 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini was reduced in DD no. 48B and in pursuance of the same, ASI Jor Singh along with HC Vijay reached at the spot where he came to know that injured was already taken to Jaipur Golden Hospital. IO went to Jaipur Golden hospital and subsequently to BSA hospital, where he collected the MLC of the injured Mohd. Islam. The said Mohd. Islam came the PS on 13/3/2018 and made his complaint and on the basis of the same IO prepared the tehrir and got the FIR registered. Police carried out the investigation in the case. Both the accused persons namely Sadre Alam and his son Mohd. Tamanna were arrested. No recovery could be effected in the case. On completion of the investigation, chargesheet was filed in the Court.
2. On compliance of Section 207 Cr.P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
3. Charge under Section 308 /34 IPC was framed against both the accused persons vide order dated 20/3/2019, to which they pleaded not guilty and claimed trial.
4. Before the prosecution evidence got started, it was brought to the notice of this court by Mohd. Tamanna that his father Sadre Alam has expired and the factum of his death was verified through SHO, PS South Rohini and vide order dated 11/9/2019 it was directed that proceedings against accused Sadre Alam stood abated.
5. In order to prove its case, the prosecution has examined in total Page No. 2 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini 3 witnesses.
PUBLIC WITNESSES
6. PW3 Mohd.Islam is the complainant. His testimony shall be discussed in the later part of the judgment.
POLICE WITNESSES
7. PW1 PW1 ASI Ramesh Chand is the Duty Officer, who proved the copy of FIR, endorsement on rukka, certificate u/s 65Bof Indian Evidence Act as Ex.PW1/A, ExPW1/B and ExPW1/C respectively.
8. PW2 ASI Jor Singh has deposed that on 12.03.2018 on receipt of call bearing 48B in respect of quarrel at JJ Camp Jhuggi near Jaipur Golden Hospital, Delhi he alongwith HC Vijay reached at the spot where they came to know that injured namely Md. Islam had been shifted to Jaipur Golden Hospital. They went to the said hospital and collected MLC No. 14528/18 of injured Md. Islam and came to know that the other injured persons had gone for treatment at BSA Hospital. After collecting the MLC of Md. Islam Ex. PX1, he returned at the PS. Md. Islam came at the PS and he made his complaint Ex. PW2/A on which he prepared Tehrir Ex. PW2/B got the FIR registered. Thereafter, he inspected the spot and prepared the Site Plan Ex. PW2/C. He proved the arrest memos and personal search memo of accused persons Sadre Alam and Md. Tamana as Ex. PW2/D & Ex.
Page No. 3 of 15 FIR No.59/18Police Station : South Rohini PW2/E, Ex. PW2/F & Ex PW2/G respectively.
DOCUMENTS ADMITTED DURING TRIAL
9. It is relevant here to mention that on 18/9/2019 accused Mohd.Tamanna admitted MLC no. 14527/18 of victim Islam dated 12/3/2018 prepared by Dr. Monika, MO, Jaipur Golden Hosptial, Delhi and view of the same the said MLC was exhibited as ExP1.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
10. After the conclusion of prosecution evidence, statement of the accused Tamanna was recorded u/s 313 Cr.P.C in which all the incriminatory facts and circumstances appearing in evidence against them was put to him which has been denied by him in toto.
11. Accused Tamanna has stated that he is innocent and has been falsely implicated in the present case. It is further stated by him that the relations between Md. Islam and his uncle namely Barik were strained due to certain reasons and there was some altercation between them on the issue of some toy of child and Mohd. Islam falsely implicated him and his father in order to create pressure upon them and due to previous enmity between both the sides.
12. The accused has not led any evidence in his defence.
Page No. 4 of 15 FIR No.59/18Police Station : South Rohini ARGUMENTS OF BOTH SIDES
13. I have heard Sh. Rajat Kalra, Ld. Addl. PP for the State and Sh.
Satender Kumar, Ld. Counsel for the accused and have perused the material available on record.
14. It is argued by Ld. Counsel for the defence that the prosecution has miserably failed to prove its case beyond reasonable doubt. It is pointed out that there are lot of contradictions in the statement of prosecution witnesses and the case of prosecution does not have any ring of truth. It is further stated that the accused persons have been implicated by the complainant due to malafide reasons and the circumstances connecting the case are highly doubtful and hence, all the accused persons are entitled to benefit of doubt.
15. Per contra, Ld. Addl. PP for the State has argued that the prosecution has been able to prove its case beyond reasonable doubt. It is argued that complainant Mohd. Islam (PW3) has deposed in detail about the manner in which the offence was committed by the accused and this coupled with testimony of police officials, who conducted the investigation, completes the chain of circumstance for the prosecution to prove its case.
Page No. 5 of 15 FIR No.59/18Police Station : South Rohini MY FINDINGS Ocular Evidence:
16. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
17. In the present case the entire case of the prosecution is based upon the eye witness account given by the victim Mohd. Islma (PW3) who has identified the accused and also proved the incident which had taken place with him. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witness, hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are Page No. 6 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
CONTRADICTIONS IN THE STATEMENT OF COMPLAINANT/ VICTIM
18. It is relevant here to state that there are lot of improvements and contradictions in the statement of complainant/victim Mohd. Islam (PW3). He has deposed a number of facts at the time of his examination in court which he did not say when his statement was recorded by the police and the same are material in nature. Some of the said instances are as under:
Page No. 7 of 15 FIR No.59/18State Vs. Sadre Alam and anr.
Police Station : South Rohini
(i) At the time of making his complaint ExPW2/A to the police, he had named two persons namely, Sadre Alam and his son Mohd.
Tamanna as the culprits who threw stones at him whereas in his deposition as PW3 he has attributed the entire role of hitting stones on accused Mohd. Tamanna and he is completely silent about the role of Sadre Alam in this regard. Hence he was confronted with his previous statement ExPW2/A where it was not so mentioned.
(ii) Further in his deposition as PW3 he has deposed that both Tamanna and Sadre Alam caught hold of him and manhandled him but he did not say so in his complaint ExPW2/A and that is why he was confronted with his earlier statement ExPW2/A where it was not so recorded.
(iii) He has deposed in court that his son had called police at 100 number where he did not say so in his initial complaint to the police and that is why he was confronted with his earlier statement ExPW2/A where it was not so recorded.
(iv) In his cross examination, he has further admitted that he did not know who had caught him at the time of incident and he further stated that however, they were the family members of Sadre Alam. If he did not know who had caught him, how he deposed in his examination in chief that he was caught by both Tamanna and Sadre Alam.
19. Since this witness did not say about these important aspects in his complaint to the police ExPW2/A, which are material in nature, Ld. Defence counsel in his crossexamination confronted the witness Page No. 8 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini where the said facts were not mentioned and it creates doubt in the case of prosecution.
20. When the contradictions are material in nature, it has been held in Tehsildar Singh vs. State of UP AIR 1959 SC 1012 :
Moreover, looking at the ambiguous narration of sequences described by the witnesses, the chain of events in the case cannot be said to have been properly brought on record by the prosecution. It is always the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings so state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements.
21. In the present case, in my view, the improvements and contradictions mentioned above, in the testimony of the complainant, are vital in nature and the same go to the root of the matter and there is nothing on record to explain about the same and hence this witness does not appear to be very reliable, dependable and trustworthy, whose testimony can be used to convict the accused.
MATERIAL PUBLIC WITNESS NOT EXAMINED BY THE PROSECUTION
22. It is the case of complainant Mohd. Islam that after the incident in question it was his son who had called police at 100 number and he was taken by his son and his wife to Jaipur Golden Hospital. Hence, Page No. 9 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini the son and the wife of the complainant were the material witnesses but they were not included in the investigation by the IO.They have not been cited as prosecution witnesses and they have not been examined in court. Non examination of the said material witnesses also creates doubt in the case of prosecution.
23. It is settled law that shoddy or defective investigation could, in a given case, result in acquittal but this would depend upon the defects. If the investigation results in the real culprit not being identified, then acquittal should follow. Similarly, if there are glaring loopholes in the investigation, the defence can exploit the lacunae and the trial is to ensure that an innocent person is not to behind bar on trumpedup charges. It was so held in Surajit Sarkar vs. State of West Bengal (2013) 2 SCC 146.
PUBLIC WITNESSES NOT INCLUDED IN THE INVESTIGATION
24. When there are contradictions and improvements in the testimony of the complainant Mohd. Islma as discussed above and the fact that the material witnesses i.e. his son and his wife have not been examined as prosecution witnesses, the court also notes that no independent witness was produced by the prosecution in support of its version of the manner of commission of offence and apprehension of accused. Despite the fact that the incident had taken place in a crowded locality, the police party was unable to join even one independent witness in its proceedings i.e. neighbours etc. PW3 Page No. 10 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini Mohd. Islmam had admitted in his cross examination that around 30 40 prsons had gathered at the spot when this incident occurred. If so many public persons had gathered, their non inclusion in the investigation of the case, without any justifiable cause, also create doubt in the case of the prosecution.
25. It appears that the investigating agency did not make any sincere effort to join any public witness in the said proceeding. In a case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials not joining the independent witnesses in the investigation. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of the fact that the explanation for non joining of witnesses from the public is an after thought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused persons, the case of the prosecute has become highly doubtful.
DEFENCE OF THE ACCUSED
26. The accused is a young boy of about 26 years. It is the case of Page No. 11 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini the accused that on the day of incident the relations between Md. Islam and his uncle namely Barik were strained due to certain reasons and there was some altercation between them on the issue of some toy of child but he falsely implicated him and his father in order to create pressure upon his family and due to previous enmity between both the sides.
27. In a case titled as Dudhnath Pandey vs. State of U.P. AIR 1981 Supreme court 911 Hon'ble Apex Court has held that the defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in the defence witnesses. In the present case, due to contradictions/improvements in the testimony of the complainant, non examination of material witnesses in the court as discussed above, this court does not find any reason to discard the version of the defence and in my view, it cannot be said that it is unworthy of reliance at all and rather their version creates dent in the case of prosecution.
FINAL CONCLUSIONS
28. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
Page No. 12 of 15 FIR No.59/18State Vs. Sadre Alam and anr.
Police Station : South Rohini The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
The circumstances should be of conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
29. The testimonies of the prosecution witnesses, as discussed above, are full of inconsistencies and contradictions and do not inspire the confidence of the court put forward by the prosecution. The version given by these witnesses do not find any corroboration from any independent source.
30. In the light of the above referred deficiencies, inconsistencies and discrepancies, the opinion of this court, it can be said that prosecution has not been able to establish its case beyond reasonable doubt. It cannot be said that the circumstances from which the Page No. 13 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini conclusion of guilt is to be drawn is fully established or that the facts established are consistent only with the hypothesis of the guilt of accused persons. Further the chain of evidence is also not complete as not complete show that in all probability, the act must have been done by the accused persons.
31. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State of Uttrakhand AIR 2011 Supreme Court 200.
32. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his Page No. 14 of 15 FIR No.59/18 State Vs. Sadre Alam and anr.
Police Station : South Rohini guilt beyond all reasonable doubts on the basis of evidence".
33. In view of the above discussion, in the opinion of this court, it can be said that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, the accused is acquitted from the charges framed against him.
34. The accused is directed to furnish personal bond in the sum of Rs.10,000/ with one surety in the like amount u/s 437A CrPC. Same is accepted.
35. The case property, if any, is confiscated to the state and the same may be destroyed after the period of appeal and if appeal is preferred, subject to the order of Ld. Appellate court.
36. File be consigned to Record Room.
Announced in the open court on this 23th day of September, 2019. (DEEPAK GARG) ASJII, NORTHWEST ROHINI: DELHI Page No. 15 of 15