Delhi District Court
State vs . Kanwal Jeet Singh & Jashbir Singh on 15 February, 2022
_________________________________________________________________________
IN THE COURT OF SH. MAYANK GOEL
METROPOLITAN MAGISTRATE03, ROHINI COURTS,DELHI
_________________________________________________________________________
State Vs. Kanwal Jeet Singh & Jashbir Singh
FIR No. 356/08
PS. Model Town
U/s. 323/325/341/34 IPC
Cr. Case No. 5282296/2016
JUDGEMENT
1) The date of commission of offence : 22.10.2008 2) The name of the complainant : Sh. Rohit Dhingra
3) The name & parentage of accused :1. Kanwal Jeet Singh S/o Sh.
Surender Singh R/o H.No. A 55, Gujranwala Town, Delhi.
2. Jashbir Singh S/o Sh. Surender Singh R/o H.No. A55, Gujranwala Town, Delhi.
4) Offence complained of : U/s 323/325/341/34 IPC & 185 Motor Vehicle Act 5) The plea of accused : Pleaded not guilty 6) Final order : Accused Jashbir Singh Convicted
_______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 1 of 18 Accused Kanwaljeet Singh Acquitted
7) The date of such order : 15.02.2022
8) Date of Institution : 13.04.2009
9) Judgment reserved on : 11.02.2022
10)Judgment announced on : 15.02.2022 THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of the prosecution in brief is that on 22.10.2008 at about 08:45 P.M. at Main Road, Guru Har Kishan Public School, Bhama Shah Road, Delhi within the jurisdiction of PS Model Town, both the accused persons namely KanwalJeet Singh and Jashbir Singh in furtherance of their common intention caused simple hurt to the complainant Sh. Rohit Dhingra and grievous hurt to his wife Mrs. Pooja Dhingra and wrongfully restrained them while committing simple hurt to complainant Rohit Dhingra and grievous hurt to his wife Mrs. Pooja Dhingra and both the accused thereby committed an offence punishable u/s 323/325/341/34 IPC.
2) After completion of investigation, chargesheet against both the accused for offence u/s. 323/325/341/34 IPC was filed in the Court and after complying with the provisions of Sec. 207 Cr.P.C., arguments on charge were heard. Vide order dated 20.01.2012 charges were framed u/s. 323/325/341/34 IPC against both the accused to which they pleaded not guilty and claimed trial.
3) In support of its case, the prosecution examined twelve witnesses.
_______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 2 of 18
4) PW 1 Rohit Dhingra, who is the complainant/victim in the present case deposed that on 22.10.2008 at around 10:0010:30 P.M., he alongwith his wife Mrs. Pooja Dhingra were returning from Vinayak Hospital to his house at Vijay Nagar in his Honda City car. When he reached near Guru Harkishan Public School, a white colour Maruti car bearing number DL6CD0317, over took his car and hit it. As a result, he had to stop his car. There were three persons sitting in the said Maruti car and they were having liquor. When he stopped his car, they came out of their car and threw the empty glasses and liquor bottle on his conductor side window pane and it got broken. As a result, his wife sitting beside him sustained injuries and her jaw line and about three teeth got broken. He came out of his car upon which the said three persons started beating him severely and his left hand got fractured. He immediately called 100 number. In the meantime, one of the accused person managed to fled away from the spot while the other two were apprehended by him with the help of public persons. After about 10 minutes of making call to the police, the police arrived at the spot then they were taken to Susruta Trauma Centre for their medical treatment. At about 02:00 A.M., they left the hospital for the police station. When they reached the police station, only one accused Jashbir of the remaining two accused persons was present and he came to know that he had also fled away from the spot. At the police station, his statement was also recorded which is Ex. PW1/A, bearing his signature at Point 'A'. Accused Jashbir was correctly identified by him in the court on 01.05.2012. Police also prepared site plan at his instance. After about two weeks, he was called by the police official at Kalyan Vihar police picket where he was asked by the IO to identify the other accused who was involved in the present incident. He identified the other accused Kanwal Jeet Singh and stated the said fact to the IO, who then arrested the said accused. Accused Kanwal Jeet Singh was correctly identified by him in the court on 01.05.2012. His supplementary statement was recorded by the IO. The arrest and personal search memos of accused Jashbir Singh and Kanwal Jeet Singh are Ex. PW1/B, Ex. PW _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 3 of 18 1/C, Ex. PW1/D, and Ex. PW1/E, respectively, all bearing his signatures at Point 'A'. He correctly identified the Maruti Car bearing Registration No. DL6CD0317 in which accused persons are travelling by photographs and the said photographs are Ex. P1 to P4. He was duly crossexamined by the Ld. Counsel for both the accused persons.
5) PW 2 Mrs. Pooja Dhingra, who is the wife of the complainant in the present case deposed that on 22.10.2008 at around 10:0010:30 P.M., she alongwith her husband Mr. Rohit Dhingra were returning from Vinayak Hospital to her house at Vijay Nagar in their Honda City car. When they reached near Guru Harkishan Public School, a white colour Maruti car over took their car and hit it. As a result, her husband had to stop their car. There were three persons sitting in the said Maruti car. When they stopped their car, they came out of their car and threw the empty glasses and liquor bottle on their conductor side window pane and it got broken. Her husband came out of their car upon which the said three persons started beating him severely and his left hand got fractured. His husband immediately called 100 number. In the meantime, one of the accused person managed to fled away from the spot while the other two were apprehended by them with the help of public present over there. After about 30 minutes of making call to the police, the police arrived at the spot then they were taken to Susrut Trauma Centre for their medical treatment. At about 02:00 A.M., they left the hospital for the police station. When they reached the police station, only one accused Jashbir of the remaining two accused persons was present and she came to know that he had also fled away from the spot. At the police station, her statement was also recorded which is Ex. PW 2/A, bearing her signature at Point 'A'. Accused Jashbir was correctly identified by her in the court on 01.05.2012. She did not remember the other accused persons. She correctly identified the Maruti Car bearing Registration No. DL6CD0317 in which accused persons are travelling by photographs and the said photographs are _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 4 of 18 Ex. P1 to P4. She failed to identify the other accused Kanwaljeet in the court on 01.05.2012 and on crossexamination by Ld APP for the State it is stated by her that she had not seen the other accused as she was severely injured and was profusely bleeding. She was duly crossexamined by Ld. Counsel for both the accused persons.
6) PW 3 HC Naresh No. 1142/NW Police Station Jahangir Puri, New Delhi, deposed that on 23.10.2008, he was posted as Duty Officer at Police Model Town with duty hours from 01:00 A.M. to 09:00 A.M. On receipt of rukka brought by HC Vidhya Sagar sent by HC Vidhya Sagar. He recorded FIR in the present case. He brought the original FIR in court on 22.05.2013 and same is written in his own handwriting which is Ex. PW3/A bearing his signatures at Point 'A' (OSR). The endorsement on rukka is Ex. PW 3/B bearing his signatures at Point B. He was not crossexamined by Ld. Counsel for both the accused persons despite opportunity being given.
7) PW 4 HC Ram Kumar, PIS No. 28950714, DAP 2 nd Bn., deposed that on 23.10.2008, he was posted at PS Model Town. On that day, he alongwith IO/HC Vidya Sagar and Rohit reached near Guru Harkishan Public School, Bhamashah Road and HC Vidya Sagar prepared site plan at the instance of Rohit. Thereafter, accused Jashbir was arrested at the instance of Rohit vide arrest memo and personal search memo already exhibited as Ex. PW 1/B and Ex. PW 1/D, both bearing his signature at Point 'B'. Thereafter, car of Rohit was also seized vide seizure memo Ex. PW 4/B, bearing his signature at Point 'A'. Both the vehicle were deposited with MHC(M). Accused Jashbir was correctly identified by him in the court on 22.05.2013. He correctly identified the car bearing number DL6CD0317 from photographs which are already exhibited as Ex. P1 to P4. He was duly cross examined by Ld. Counsel for both the accused persons.
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8) PW 5 HC Om Prakash, No. 14/SW, PS Inderpuri, New Delhi, deposed that on 22.10.2008, he was posted at Police Station Model Town as DD Writer from 05:00 P.M. to 01:00 A.M. On that day, at about 10:35 P.M., he received a PCR call from Control Room regarding quarrel at R.P. Bagh, which he entered into a rojnamcha vide DD entry number 104B and informed HC Vidya Sagar telephonically. He have brought the original rojnamcha containing original entry number 104B, true copy of the same is Ex. PW 5/A(OSR). He was not crossexamined by Ld. Counsel for both the accused persons despite opportunity given.
9) PW5 Dr. J. K. Basu, CMO, LNJP Hospital deposed that on 22.10.2008 at about 10:55 PM he was posted as CMO in Sushruta Trauma Centre. On that day, patient namely Rohit Dhingra and Pooja Dhingra were brought to casualty with alleged history of physical assault who were examined by him wide MLC no. 104832 and 104831 which are exhibit PW5/A and exhibit PW5/B bearing his signature at point A respectively. He was not cross examined by the accused despite opportunity being given.
10) PW 6 ASI Vidya Sagar No. 2554North, Old Police Line, Tis Hazari Court, Delhi, deposed that on 22.10.2008, he was posted as Head Constable at Police Station Model Town. On that day, he was on emergency duty from 08:00 P.M. to 08:00 A.M. On that day, on receipt of DD No. 104B regarding quarrel, he alongwith Ct. Ram Kumar went to the spot i.e. Guru Hari Kishan Public School, near Nanak Piau Gurudwara, where he came to know that injured persons has been shifted to Trauma Centre. Some rickshaw pullers were present there. They told that the quarrel had taken place between the persons of two car. One black colour Honda Car was present there. Then he alongwith Constable went to the Trauma Centre where he collected MLC of injured Rohit but he had already left Trauma Centre. Then, he came back to police station where complainant Mr. Rohit and his wife Mrs. _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 6 of 18 Pooja were present. He told that his car was at the spot. Then, he alongwith them went to the spot. He recorded statement of injured Rohit which is already Ex. PW 1/A bearing his signature at Point 'B'. He made endorsement Ex. PW 6/A on his statement and got the FIR registered through Ct. Ram Kumar. He seized his car vide memo Ex. PW 4/B bearing his signature at Point 'B'. Car was taken to police station and deposited in the Malkhana. Complainant Rohit has told the name and address of accused persons. Then, he went to the house of accused persons. He correctly identified accused persons in the court on 25.08.2017. He arrested and personally searched accused persons vide memo Ex. PW 1/B to Ex. PW 1/E bearing his signatures at Point C. Accused persons disclosed that complainant used to abuse their father every day. Accused persons were released on police bail after producing surety. Complainant was driving the car under influence of alcohol. Kalandra u/s 185 M.V. Act was separately filed against him. He also seized the car bearing no. DL 6CD0317 of accused perons vide memo already Ex. PW 4/A bearing his signature at Point 'C'. He obtained opinion of doctor which was opined as simple but the opinion of injured Mrs. Pooja Dhingra was opined as grievous. Then, he concluded the investigation and filed the charge sheet in the court. He was duly crossexamined by Ld. Counsel for both the accused persons.
11) PW 7 Sh. Rajesh Kumar, Record Clerk, Sushruta Trauma Centre, Metcalf Road, Delhi110054, deposed that he was deputed by Medical Record Officer of the aforesaid hospital to verify the handwriting and signature of Dr. Amit Tyagi, Dr. Shalini Sagar and Dr. Vinod. He have been working in the aforesaid hospital since 2000. He can identify the handwriting and signature of the aforesaid doctors as he have seen them writing and signing during the course of his duty. The aforesaid doctors have left the services of the hospital and their present whereabouts is not known. The MLC number 104832 of patient Rohit Dhingra is already Ex. PW 5/A bearing signature of Dr. Amit Tyagi at Point B who opined the nature of injury as _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 7 of 18 simple. The MLC number 104831 of patient Pooja Dhingra are Ex. PW 7/A and Ex. PW 7/B bearing signatures of Dr. Vinod at Point 'A' respectively. He was not cross examined by the accused persons despite opportunity given.
12) PW 8 Dr. Amit Tyagi, MS(orthopedics), Atlanta Hospital, Ghaziabad, Delhi, deposed that on 22.10.2008, patient Rohit Dhingra was examined by the Dr. J.K. Vasu vide MLC number 104832 dated 22.10.2008. He gave the opinion about the nature of injury as simple injury on abovesaid MLC which is Ex. PW 5/A bearing his signatures at Point 'B'. He was not crossexamined by accused persons despite opportunity given.
13) PW 9 ASI Mange Ram, No. 879/NW, PS Model Town, Delhi, deposed that he was posted at PS Bhalswa Dairy as MHC(M). On 15.01.2019, he brought the register number 19 regarding the entry number 3789/8 dated 23.10.2008. The copy of the said entry is Ex. PW 9/A (OSR) bearing his signatures at Point 'A'. As per the register, case property i.e. car bearing number DL6CD0317 has been released on superdari as per the law. There is no tampering with the case property while the same remained in possession of the MHC(M). As per the register, case property was deposited vide entry number 3797/8 dated 23.10.2008 and the same i.e. car bearing number DL3CAA0196 has been released on superdari as per the law. There is no tampering with the case property while the same remained in possession of the MHC(M). He was not crossexamined by Ld. Counsel for both the accused persons despite opportunity given.
14) PW 10 ASI Mange Ram, Number 879/NW, PS Model Town, Delhi, deposed that he have brought original register number 19 regarding the entry number 3798/08 dated 23.10.2008 which is Ex. PW 1/A and Ex. PW 1/B(OSR). As per the entries, on 23.10.2008, the case property i.e. car bearing number DL3CAA0196 _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 8 of 18 and another car bearing number DL6CD0317 was deposited by HC Vidhya Sagar in the malkhana. On 04.11.2008, the car bearing number number DL3CAA0196 was released on superdari by the order of Ld. Magistrate as mentioned at Point A. On 07.11.2008, the car bearing number DL6CD0317 was released on superdari by the order of Ld. Magistrate as mentioned at Point A. He was duly crossexamined by Ld. Counsel for the accused persons.
15) PW 11 Sh. K.V. Singh, MLC Incharge, Hindu Rao Hospital, Delhi, deposed that he was deputed by Medical Superintendent of the aforesaid hospital to verify the handwriting and signature of Dr. Sidharth Mehrotra. He have been working in the aforesaid hospital since the year 1989. He can identify the handwriting and signature of aforesaid Doctor as he have seen him writing and signing during the course of his duty. The aforesaid Doctor has left the services of hospital and the present whereabouts are not known. The Casualty number is CX46314 of Jashbir Singh which is Ex. PW 11/A bearing signature of Dr. Sidharth Mehrotra at Point 'A' who has opined that the patient has taken alcohol but is not under the influence. He was not crossexamined by both the accused persons despite opportunity given.
16) After Prosecution evidence, statement of both the accused persons have been recorded under section 313 Cr.P.C. Both accused persons have stated that they are innocent and have been falsely implicated in this case by the police officials. It is stated by accused Kanwaljeet Singh that he do not know anything about the incident but as told by his brother/coaccused Jashbir Singh and other neighbours, the true facts of the case are that it is the complainant who used to abuse his father. His father who is senior citizen is running small confectionary shop and the complainant Rohit Dhingra used to come during old hours to purchase things from his father. On the day of incident i.e. 22.10.2008, the complainant along with his wife asked his father to give a soda bottle to complainant. It was late in the night, therefore, his _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 9 of 18 father denied giving complainant soda bottle as he had already closed the shop. That the complainant Rohit Dhingra abused his old father and spat on his face and ran away in car. When his brother Jashbir tried to stop him, the complainant did not stop and thereafter his brother Jashbir chased him in his car bearing number DL6CD0317. That the complainant is heavily drunk. When his brother Jashbir get down from his car and confronted the complainant about his behaviour with the father of accused , the complainant Rohit Dhingra started abusing and hitting his brother as the complainant was heavily drunk. Thereafter some altercation took place between his brother Jashbir and the complainant Rohit Dhingra and his wife Pooja Dhingra intervene then Rohit Dhingra pushed her and therefore she sustained injuries. That the public persons gathered and pacified Rohit Dhingra. Somebody from the public person informed the police and his brother Jashbir was apprehended despite his being no fault. He was arrested on 19.11.2008 despite the fact that he was not present at the spot at the time of incident.
The accused Jashbir stated that the true facts of the present case are that it is the complainant Rohit Dhingra who used to abuse his father and his father who is senior citizen is running small confectionary shop and the complainant used to come during odd hours to purchase things from his father. On the day of incident, the complainant along with his wife asked his father to give soda bottle to complainant. It was late in night, therefore, his father denied giving the complainant soda bottle as his father had already closed the shop. The complainant abused his old father and spat on his face and ran away in his car and when he tried to stop the complainant, he did not stop. Thereafter he chased the complainant in his car bearing number DL8CD0317. That the complainant was heavily drunk and when he asked to stop the complainant his car, the complainant hit his car. When he got down from his car and confronted the complainant about his behaviour with his father, the complainant started abusing him and hitting him. The complainant was heavily drunk and thereafter some altercation took place between the complainant and him.
_______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 10 of 18 When the complainant's wife Pooja Dhingra intervene Rohit Dhingra, Rohit Dhingra pushed her and she sustained injuries. However, both the accused persons have opted to lead defence evidence.
17) Both the accused persons did not examine any witness in their defence.
18) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
19) It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
20) It is stated by Ld APP for state that both the injured persons gave very consistent statements and corroborate the statement of each other and their credibility is not shaken at the time of cross examination. It is further stated by Ld APP for state that minor omissions in the police statements are never considered to be fatal to the prosecution case. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. That the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to life. The main thing to be seen is whether those _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 11 of 18 inconsistencies go to the root of the matter or pertains to insignificant aspect. Ld APP for state relied upon the judgement of Honourable Supreme Court of India in case titled State of UP versus Krishna master and others (2010) 12 SCC and Bhagchandra Vs. State of MP decided on 09.12.2021 in which it was held that a true witness is not expected to give a parent like statement and minor discrepancies are bound to occur, which shows the genuineness of the testimony and is a guarantee that witness is not tutored one. Ld APP for state further relied upon the judgement of Honourable Supreme Court of India in case titled Menoka Malik and Ors Vs. State of West Bengal (2019) 18 SCC 721 in which it was held that the doctrine of falsus in Uno falsus in omnibus has no applicability in India which means false in one thing, false in everything i.e. the testimony of a witness cannot be discarded merely due to the presence of improvements or exaggerations. It is further stated by Ld APP for state that FIR is not an Encyclopedia of the facts concerning the crime and all minute details need not be mentioned in the FIR and only essential or broad picture needs to be stated in FIR. Ld APP for state also relied upon the judgement of Honourable Supreme Court of India in case titled Baldev Singh versus State of Punjab AIR 1996 SC 372 and Rattan Singh versus State of HP AIR 1997 SC 768 in which it was held that FIR is not verbatim summary of the prosecution case and it may not even be necessary to catalogue the over act therein. It is further stated by Ld APP for state that injured persons have correctly identified both the accused during trial and even otherwise their identity is not disputed by the accused themselves rather they put suggestion that complainant was previously known to them. It is further stated by Ld APP for state that the injuries and nature of injuries have been proved by PW5, PW7 and PW8 and their testimony remained uncontroverted and unchallenged as they were not cross examined by the accused persons despite opportunity being given. It is further stated by Ld APP for state that there is no delay in reporting the matter as the PCR call was made promptly at 10:35 PM vide DD number 104B, MLC is at _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 12 of 18 10:55 PM in the hospital and FIR got lodged in the midnight hours at 2:30 AM. It is further stated by Ld APP for state that there is no reason for falsely implicating the accused persons and leaving behind the real culprits. It is further stated by Ld APP for state that both the accused persons admitted the incident in the statement of accused under section 313 Cr.P.C.
It is stated by Ld counsel for accused persons that there is a great contradiction in the time of alleged incident as in the Rukka exhibit PW1/A, the time of incident is mentioned as 8:45 PM whereas the complainant PW1 and PW2 in their examination in chief stated the time of incident to be of around 10 to 10:30 PM. It is further stated by Ld counsel for accused persons that Rukka as well as chargesheet is silent about breaking of the window pane due to throwing of the empty glass and bottle but however in their examination in chief, PW1 and PW2 have categorically made a statement that window pane of the left side of the car was broken due to throwing of the empty glass and bottle and further mentioned that no mechanical inspection of the vehicle was done despite the fact that car of the complainant was impounded by the police and remained in police station for 4 to 5 days. It is further stated by Ld counsel for accused persons that in the Rukka as well as in chargesheet there is no mention as to the number of person in the car whereas in the examination in chief, PW1 and PW2 has stated that there were three persons. It is further stated by Ld counsel for accused persons that in the Rukka as well as in chargesheet, there is no mention as to any of the accused person flying at any point of time whereas in statement of the chief, PW1 has specifically stated that one of the accused person managed to flee away from the spot while the other two were apprehended by him and public persons and further mentioned that PW1 in his examination in chief stated that out of the two person apprehended by him and public persons and handed over to police, one of the accused also managed to flee and PW1 only found one of the accused i.e. accused Jashbir Singh at police station _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 13 of 18 when he returned to the police station from the hospital. It is further stated by Ld counsel for accused persons that accused Jashbir Singh was present in the police station as per the statement of complainant however the arrest memo shows the arrest of accused Jashbir Singh from his residence. It is further stated by Ld counsel for accused persons that the accused Kanwaljeet Singh was arrested at police picketing on 19.11.2008 after approximately one month of the alleged incident and that too surprisingly he was apprehended by the police at the police picket and the complainant was also called to identify and surprisingly he happens to be the same accused Kanwaljeet Singh who allegedly fled away on 23.10.2008. It is further stated by Ld counsel for accused persons that no TIP was conducted at any point of time. It is further stated by Ld counsel for accused persons that the prosecution in the site plan failed to show the placement of cars to be involved in the incident. It is further stated by Ld counsel for accused that the complainant Rohit Dhingra was heavily drunk and Kalandra under section 185 M.V. Act was separately filed against him. It is further stated by Ld counsel for accused persons that as per the story of prosecution as mentioned in Rukka as well as chargesheet the injury sustained by the wife of complainant i.e. Pooja/PW2 were caused as she intervened in the scuffling and nowhere it is stated that wife was hit by the accused. Moreover, PW2 also failed to identify the accused Kanwaljeet Singh in the court. It is further stated by Ld counsel for accused persons that the prosecution also failed to prove the nature of injury as to prove nature of injury of PW2, only PW7 who is record clerk of Sushruta Trauma Centre was examined and he has no knowledge with regards to the medical aspects of injuries, their nature, their impact on the body. It is further stated by Ld counsel for accused persons that the prosecution fails to prove the charges under section 323/325/341/34 IPC against the accused persons.
It is stated by Ld APP for state in rebuttal that TIP is not necessary to be conducted in the present case as accused persons were first apprehended on the spot _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 14 of 18 itself by him and public persons and accused Kanwaljeet Singh later arrested after the identification by the complainant itself. It is further stated by Ld APP for state that any lapse on the part of IO during investigation is not fatal to the case of the prosecution and prosecution has very well proved his case. It is further stated by Ld APP for state that he has already stated the points required in rebuttal during his arguments itself.
21) Section 341 IPC provides for punishment for causing wrongful restraint and lays down that : "whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both".
22) Section 325 IPC provides for punishment for voluntarily causing grievous hurt and lays down that : "whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
23) Section 323 IPC provides for punishment for voluntarily causing hurt and lays down that : "whoever except in the case provided for by section 334, voluntarily caused 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.".
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24) Section 34 IPC lays down that "when a criminal act is done by several persons in furtherance of common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone.
25) In the present case, the testimony of PW1 and PW2 i.e. injured persons is consistent during examination in chief as well as in cross examination to some extent and there are some minor discrepancies in the deposition during cross examination of PW1 and PW2. PW1,PW2 and PW6 correctly identified the accused Jashbir Singh in the court but PW2 failed to identify the accused Kanwaljeet Singh in the court. It is stated by PW1 and PW2 during their crossexamination that accused persons were not known to them prior to the incident but however the IO i.e. PW6 during his examination in chief stated that the complainant Rohit told the name and address of the accused persons and then PW6 went to the house of the accused persons and arrested them. It is stated by PW6 during his crossexamination that both the accused persons were present at their home at that time and they were brought to PS by him and they were arrested and both the accused persons were released on bail in the morning on the next day of incident. It is further stated by PW6 during his crossexamination that complainant knew accused persons prior to the incident. As per the cross examination of PW6, the accused Kanwaljeet Singh was also arrested the very same day of the incident but, however, in Exhibit PW1/C which is the arrest memo of accused Kanwaljeet Singh, the date of arrest is mentioned as 19.11.08 which is almost 27 days after the date of incident and place of arrest is mentioned as near Binayak Hospital. However, the testimony of PW1 somewhere corroborate exhibit PW1/C as it is stated by PW1 during his examination in chief that the accused Kanwaljeet Singh was arrested after about two weeks of the incident near Kalyan Vihar picket. There is a grave discrepancy regarding the arrest of the accused Kanwaljeet Singh as the testimony of IO himself contradict and _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 16 of 18 opposite to the arrest memo which is exhibit PW1/C. Moreover, PW2 failed to identify the accused Kawaljeet Singh during her examination in the court, which dispute the presence of the accused at the spot at the time of incident. This fact also cannot be denied that PW4 HC Ramkumar during his crossexamination deposed that the accused persons met them outside the house in Gali and the accused was not brought to the police station as he was released on bail on the spot. However, it is stated by both PW1 and PW2 that when they went to police station from Sushruta Trauma Centre after medical treatment, only accused Jashbir Singh was present in the PS and they were told that accused Kanwaljeet Singh fled away from the spot. The testimony of PW4 further creates doubt regarding the arrest of accused Kanwaljeet Singh. This fact also cannot be denied that IO did not take pain even to seize the broken windowpanes pieces, the broken glass pieces and bottle from the spot and even the mechanical inspection of the car was not got done by the IO. The statement of both the accused under section 313 Cr.P.C. also corroborates the fact that the accused Jashbir Singh is very well present on the spot and the presence of accused Kanwaljeet Singh is disputable. The statement of accused Jashbir Singh under section 313 Cr.P.C. also specifically corroborates the prosecution story in different sense but confirm the occurrence of incident and presence of accused Jashbir Singh on the spot at the time of incident. Moreover, the prosecution fails to prove common intention between both the accused persons and act done by accused persons in furtherance of their common intention to make accused Kanwaljeet Singh liable U/s 34 IPC.
26) It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is _______________________________________________________________________________ State Vs. Kanwal Jeet Singh & Jashbir Singh FIR No. 356/08 PS. Model Town U/s. 323/325/341/34 IPC Cr. Case No. 5282296/2016 17 of 18 settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
27) In the backdrop of aforesaid discussion, facts and circumstances and material available on record, the prosecution has proved the charges u/s 341/325/323 IPC against the accused Jashbir Singh beyond reasonable doubts and not against the accused Kanwaljeet Singh. Accordingly, accused Jashbir Singh is hereby convicted for the offences u/s 341/325/323 IPC and accused Kanwaljeet Singh is acquitted for the offences u/s 341/325/323 IPC.
28) Let the copy of judgement be given free of cost to the convict Jashbir Singh.
29) Let convict be heard on quantum of sentence. Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2022.02.15 13:09:27 +0530 Announced in open Court (Mayank Goel) on 15th day of February, 2022 MM03/North District Rohini Courts/Delhi
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