Delhi District Court
State vs . Mahender @ Gaon Wala on 19 September, 2019
FIR No.752/17
State Vs. Mahender @ Gaon wala
Police Station : Mangol Puri
IN THE COURT OF SHRI DEEPAK GARG:ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 380/18
CNR no. : DLNW010064612018
State
Vs
Mahender @ Gaon Wala
s/o Sh. Bhagwat Prasad
r/o Jhuggi no. 1, Y Block,
Dobhi Ghat, Mangol Puri, Delhi
FIR No. : 752/17
Police Station : Mangol Puri
Under Section : 308/34 Indian Penal Code
Date of Institution in Sessions Court : 11.05.2018
Date when judgment reserved : 17.09.2019
Date when judgment pronounced : 19.09.2019
JUDGMENT
1. The case of the prosecution in brief is that this FIR was registered on the complaint of Sh. Rajesh Kumar wherein he stated that on 19.5.2017 around 10.00 PM, two boys namely Gaonwala and Kanjar were teasing his father, who was mentally challenged and on his objection they went away from there but after sometime, they both came at the spot and started throwing bricks which resulted in injury Page No. 1 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri to her mother Smt. Rani, who was immediately shifted to Sanjay Gandhi Memorial Hospital. Police was informed about the matter. During investigation two accused persons namely Mahender @ Gaonwala and Aakash @ Kanjar were arrested. Aakash @Kanjar was found to be juvenile. Nothing could be recovered from the accused.
2. On completion of the investigation, chargesheet was filed in the Court qua accused Mahender @ Gaonwala.
3. On compliance of Section 207 Cr.P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
4. Charge under Section 308/34 was framed against the accused vide order dated 31/07/2018, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution has examined in total 9 witnesses.
PUBLIC WITNESSES
6. PW7 Rajesh is the complainant. His testimony shall be discussed in the later part of the judgment.
Page No. 2 of 19 FIR No.752/17State Vs. Mahender @ Gaon wala Police Station : Mangol Puri POLICE WITNESSES
7. PW1 HC Suresh Kumar is the DD writer. He has deposed that on 19.05.2017 at about 10:35 pm, an information was received from control room that they had received an information from mobile no. 9210516871 that the mother of caller had been hit by someone with a stone at Jhuggi No. Y2261, Near 901 Stand, Mangol Puri, Delhi and he reduced the said information in Daily Diary Register vide DD No. 101 B, Ex.PW1/A and informed the ASI Chaman Lal to take appropriate action.
8. PW3 Ct. Dinesh has deposed in sync with PW8 SI Chaman Lal with whom he remained in the investigation.
9. PW4 Ct. Amit Kumar has deposed in sync with PW8 SI Chaman Lal with whom he remained in the investigation.
10. PW5 HC Charan Singh and PW9 HC Sandeep are the MHCMs. They have proved entries no. 3580 and 3455 of register no. 19 as ExPW5/A and ExPW6/B vide which the case property were deposited and RC 111/21/18 vide which the exhibits were sent to FSL as ExPW5/C.
11. PW6 HC Jai Veer is the duty officer. He has deposed that on 23/5/2017 at about 10.05PM, ASI Chaman Lal produced the rukka on the basis of which, he recorded the present case FIR, Ex. PW6/A and Page No. 3 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri made endorsement on the rukka, Ex. PW6/B after making kayami DD entry 42A in Roznamcha A, Ex. PW6/C. He also issued the certificate under Section 65 B of Indian Evidence Act which is Ex. PW6/D.
12. PW8 ASI Chaman Lal has deposed that on 19.05.2017 on the receipt of DD No. 101B,Ex. PW1/A, he alongwith Ct. Dinesh reached at the spot i.e. Jhuggi No. Y61, Mangolpuri, Delhi where they came to know that injured was shifted to SGM Hospital. Thereafter, they reached at SGM Hospital and collected the MLC No. 8607 of injured Rani and met injured as well but she was not able to give the statement and refused to give the same. On 23.05.2017, he visited the house of the complainant i.e. Jhuggi No. 61, Y Block, Mangolpuri, Delhi and he came to know that complainant had got herself admitted to BSA Hospital on 20.05.2017 and he visited BSA Hospital where doctor concerned opined that the patient was unfit for statement. Thereafter, in the evening of the same day, at around 10:00 PM, Rajesh son of injured Rani visited the PS and got recorded his statement Ex. PW7/A and complainant Rajesh presented a piece of brick having some traces of blood on it and while producing it, he stated that it is the same piece of brick with which the accused persons had hit his mother. He proved Tehrir, site plan and seizure memo of brick as Ex. PW8/A, Ex. PW8/B and ExPW4/C respectively. Accused was arrested. He proved arrest memo and personal search memo as Ex. PW4/A and Ex. PW8/C respectively. Efforts were made to arrest the accused Akash @ Kanjar but he continued to abscond and process U/s 82/83 Cr. PC was got issued against him. In Page No. 4 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri the meantime, it was revealed that accused Akash @ Kanjar was lodged in Tihar Jail in case DD No. 34A dated 23.02.2018 PS Mangolpuri U/s 41.1 Cr. PC and on 04.03.2018, accused Akash @ Kanjar was formally arrested in this case in Tihar Jail. On 16.03.2018, age proof of the accused Akash @ Kanjar was obtained from his school and he turned out to be juvenile. Blood sample of injured Rani was sent to FSL for comparison with the brick blood stains and the result qua it was obtained.
MEDICAL EVIDENCE.
13. PW2 Dr. Vivek Pratap, SR, SGM Hospital, Delhi has deposed that he had worked with Dr. Vipin Dabas, who had examined patient Rani, and he identified his signatures on the MLC Ex.PW2/A at point A as he has seen him writing and signing in the course of his official duties. The patient was referred to SR surgery where she was examined by Dr. Shekhar Shivam and Dr. Mohit Junjunwala, who have also left the hospital and he identified their signatures on the MLC ExPW2/A at point B, C and D respectively and Dr. Mohit Junjunwala opined the nature of injuries simple in nature.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
14. After the conclusion of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C in which all the incriminatory facts and circumstances appearing in evidence against him was put to Page No. 5 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri him which has been denied by him in toto.
15. Accused Mahender @ Gaon Wala has stated that he is innocent and has been falsely implicated in the present case. It is further stated by him that he is residing in the neighbourhood of the complainant and he did not help the complainant and his brother to beat the boys, who had scuffle with the complainant on the day of incident and during that scuffle, someone from those boys pushed the mother of the complainant and due to the same mother of the complainant received injuries for the same complainant and his brother wanted to teach the lesson to those 23 boys and asked for his help and other neighbours but he refused and therefore due to the same reason later on he was falsely implicated in the present case.
16. The accused has not led any evidence in his defence.
ARGUMENTS OF BOTH SIDES
17. I have heard Sh. Rajat Kalra, Ld. Addl. PP for the State and Sh.
Anil Rana, Ld. Amicus curiae for the accused and have perused the material available on record.
18. 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 Page No. 6 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri ring of truth. It is further stated that the accused has been implicated by the complainant due to malafide reasons and the circumstances connecting the case are highly doubtful and hence, the accused is entitled to benefit of doubt.
19. 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 Sh. Rajesh 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.
MY FINDINGS Ocular Evidence:
20. 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.
21. In the present case the entire case of the prosecution is based Page No. 7 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri upon the eye witness account given by the complainant Rajesh (PW7) who has identified the accused and also proved the incident which had taken place with his family members. Here, I may observe that since the prosecution is placing its heavy reliance on the testimony of the said witnesses, 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 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 credit worthy; consistency with the undisputed facts the 'credit' of the Page No. 8 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri 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
22. It is relevant here to state that there are lot of improvements and contradictions in the statement of complainant/victim Sh. Rajesh (PW7). 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:
(i) At the time of making his complaint to the police ExPW7/A he had named only two persons namely, Gaon Wala and Kanjar as the culprits who were teasing his father on the fateful day and on being objected by him, they went away from there and that they subsequently came and hit bricks as a result of which his mother received injuries whereas in his deposition as PW7 he has introduced the name of one more boy namely,Ritik besides the two accused persons namely Mahender Gaonwala and Aakash @ Kanjar.
(ii) Further in his complaint to the police ExPW7/A he only named abovesaid two persons and not Ritik as the person who injured his mother but in his deposition in court as PW7 he has made material improvement by stating that Ritik also came alongwith Page No. 9 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri two boys and and he was also while hurling a brick at his mother's head and after his interception the said brick hit his mother's right shoulder.
(iii) He has deposed in court that Aakash @ Kanjar hurled a piece of brick which struck on the temple region of his mother Smt. Rani.
Mahender @ Gaonwala also hit a brick which first touched the right shoulder of his mother and then her temple region but he did not say so in his complaint to the police, ExPW7/A.
(iv) He has deposed in court that around one week also prior to the present incident Ritik, Aakash @ Kanjar and Gaonwala were consuming Ganja in front of his house and were also teasing the girls who were passing by and his mother was objecting to their such acts and on this they had threatened his mother of dire consequences but he did not mention about the same in his complaint to the police, ExPW7/A.
(v) In his complaint ExPW7/A the complainant has stated that his father was mentally challenged ( he had the used the words that the mind of his father was upset). However, in his deposition as PW7 he has deposed that his father was mentally well and there is contradiction on this point.
23. Since this witness did not say about these important aspects in his complaint to the police ExPW7/A, which are material in nature, Ld. Defence counsel in his crossexamination confronted the witness where the said facts were not mentioned and it creates doubt in the case of prosecution.
Page No. 10 of 19 FIR No.752/17State Vs. Mahender @ Gaon wala Police Station : Mangol Puri
24. 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.
25. 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.
CONTRADICTION IN THE STATEMENT OF PW10 SMT. RANI
26. PW10 Smt. Rani deposed in court that all the three boys came closer to her and threatened her not to make a call and first of all Aakash hit a brick on his head and thereafter Mahender Gaonwala also hit him with the piece of brick on her head but she did not say so Page No. 11 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri in her statement to the police u/s 161 CrPC and hence she was confronted with her said statement ExPW10/DA where it was not so recorded.
27. She further deposed in court that she called Rajesh for help but Ritik caught hold of Rajesh and prevented him from coming forward and the brick blow of Ritik fell on her shoulder and she fell on the ground and started bleeding but she did not say so in her statement to the police u/s 161 CrPC and hence she was confronted with her said statement ExPW10/DA where it was not so recorded.
28. Hence, in view of the said contradictions, even the testimony of PW10 Smt. Rani is not trustworthy and dependable.
MATERIAL PUBLIC WITNESS NOT EXAMINED BY THE PROSECUTION
29. The parents of the complainant i.e. his father Sh. Rajender who was being teased by the accused persons and his mother and his brother Boby who shifted his mother to the hospital were material witnesses but the same have not been examined by the prosecution.
30. On 20/8/2019 Sh. K.K. Pradhan, Ld. Counsel for the complainant stated that Sh. Rajender i.e. father of PW7 Sh Rajesh is missing since long and copy of his missing report has been filed in this case. He further stated that Boby, son of Rajender is mentally challenged and he is not in a position to depose in the court and the Page No. 12 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri said submissions were affirmed by PW7 Rajseh who was also present in the court.
31. There is nothing on record since when the said Rajender is missing and since when Boby s/o Rajender is mentally challenged and no evidence has been led in this regard by the prosecution. There is no evidence that the condition of the said witnesses was not the same at the time of registration of the FIR. In view of the same, non examination of the said material witnesses is very conspicuous and it creates doubt in the case of prosecution.
32. 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
33. When there are contradictions and improvements in the testimony of the complainant Sh. Rajesh as discussed above and the fact that the material witnesses i.e. his father and brother have not been examined as prosecution witnesses, the court also notes that no Page No. 13 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri independent witness was produced by the prosecution in support of its version of the manner of commission of offence and apprehension of accused persons. 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.
34. 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.
DELAY IN THE REGISRATION OF FIR
35. It has been held in the case titled as State of Andhra Pradesh Page No. 14 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri vs. M. Madhusudan Rao that delay in lodging the FIR, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. That a delay report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. Resultantly, when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety.
36. The incident in question allegedly took place on 19/5/2017 but he gave complaint to the police after five days i.e. 23/5/2017 on which date this FIR was registered. Hence, there is delay of about 5 days in the registration of the FIR. There is nothing on record much to explain this delay. If Smt. Rani was not in a position to give the statement, at least complainant Rajesh could have made his complaint to the police expeditiously but he failed to do so. No explanation has been offered as to why there was delay in making the complaint to the police.
DEFENCE OF THE ACCUSED
37. It is the case of the accused that on the day of incident Boby, brother of complainant Rajesh, was quarreling with 23 boys in the Page No. 15 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri gali in inebriated state and his mother tried to intervene in order to save Bobby from those boys and in that process someone pushed her and she fell down and got the injuries and at that time Rajesh asked the accused persons to help them from the beatings of those boys who were quarreling with his brother but they refused to side with him and hence he became annoyed with them and that is why accused were falsely implicated in this case.
38. 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
39. 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. 16 of 19 FIR No.752/17State Vs. Mahender @ Gaon wala Police Station : Mangol Puri 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.
40. 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.
41. 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. 17 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri 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.
42. 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.
43. 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. 18 of 19 FIR No.752/17 State Vs. Mahender @ Gaon wala Police Station : Mangol Puri guilt beyond all reasonable doubts on the basis of evidence".
44. 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.
45. 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.
46. 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.
47. Put up on 20/9/2019 for furnishing the bond u/s 437A CrPC Announced in the open court on this 19th day of September, 2019. (DEEPAK GARG) ASJII, NORTHWEST ROHINI: DELHI Page No. 19 of 19