Delhi District Court
Ps Anand Parbat vs State Of Gujarat And Others on 20 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE,
WEST-05, TIS HAZARI CourtS, DELHI,
PRESIDED BY- SHUBHAM DEVADIYA
FIR No.: 52/2010
P.S.: Anand Parbat
Cr. Case No. 71898/2016
CNR No. DLWT02-001390-2011
JUDGMENT
(a) Sr. No. of the case 71898/2016
(b) Date of offence 15.07.2010
(c) Complainant Const. Shansbir Singh
(d) Accused persons 1) Durgesh S/o Late Sh. Ramesh Chand
2) Ashok Kumar S/o Sh. Tara Chand
3) Trilok Chand @ Triloki, S/o Parmal Dass
4) Ashok Yadav, S/o Sh. Kanhaiya Lal Yadav
5) Mohd. Irshad (declared PO).
(e) Offences U/s 186, 149, 353, 332, 148 IPC & Section 3
of PDPP Act
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquittal
(h) Date of institution 28.06.2011
(i) Date of judgment 20.1.2023
Digitally signed by
SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2023.01.20
17:30:15 +0530
FIR No. 52/10 State v. Durgesh & Ors. 1 of 27
PS Anand Parbat
BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of Prosecution is that all accused persons formed an unlawful assembly along with co-accused Mohd. Irshad (PO) on 15.07.2010 at around 11:15 P.M. near Gumbad, Nehru Nagar, Anand Parbat, and thereby obstructed the complainant Const. Sansbir and other police staff from discharging their public functions by using criminal force or violence upon the complainant Const. Sansbir and other police staff and also caused hurt to Const. Sansbir, Inspector Bijender Singh, SI Balam Kundrai, ASI Suresh Chand, Inspector Dinesh Kumar (SHO), Const. Ranbir, HC Basant, with an intent to prevent the complainant and police staff from discharging their duties as a public servant, and all the accused persons being a part of an unlawful assembly along with co-accused Mohd. Irshad (PO) committed offence of rioting by indulging in stone pelting upon the police staff and committed mischief by damaging a public property i.e., a PCR Van bearing registration No. DL1CJ-7114. Consequently, FIR in the present case was registered. After completing the formalities of investigation, the Chargesheet was filed against accused persons for commission of offence u/s 186, 149, 353, 332, 148 IPC & Section 3 of PDPP Act. After the cognizance was taken, the documents were supplied to the accused persons under section 207 CrPC.
2. The Charge was then framed against the accused persons, except against co-accused Mohd. Irshad who was declared as PO, for offence punishable under Section 186, 148, 149, 332, 353 IPC and Section 3 of FIR No. 52/10 State v. Durgesh & Ors. 2 of 27 PS Anand Parbat PDPP Act on 08.02.2013 to which they pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the Prosecution evidence.
3. In Prosecution evidence, the Prosecution has examined 15 witnesses. The accused persons had admitted the genuineness of certain documents u/s 294 Cr.P.C i.e., MLCs No. 24916, 24923, 24919 ExAD-1, ExAD-2, ExAD-3 respectively, FIR Ex.AD-1A, endorsement on rukka Ex.AD-2A, DD No. 37A, 40A and 43B dated 15.07.2010 Ex.AD-3A, Ex.AD-4 and Ex.AD-5 and DD No. 3B dated 16.07.2010 Ex.AD-6.
4. After the Prosecution evidence was closed, the statement of accused under Section 313 CrPC was recorded on 07.06.2022. It was stated by the accused persons in their statement that they have been falsely implicated in the present case and that they are innocent. The accused persons did not opt to lead the Defence evidence. Thereafter, the final arguments were heard. I have thoughtfully considered the submissions of the accused and the State. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond all reasonable doubts. He further submitted that the Prosecution has been able to establish that the accused persons, in furtherance of their common Object, had voluntarily obstructed the complainant and other Police Officials and had used criminal force upon them by way of provoking the crowd to pelt stones upon the police persons and their vehicles and had also pelted stones upon the police persons and their vehicles thereby caused injuries to various Police officials and damaged their PCR vehicle and therefore, they deserves to be FIR No. 52/10 State v. Durgesh & Ors. 3 of 27 PS Anand Parbat convicted for the offences charged as above.
Per contra, learned counsel submitted that Prosecution failed to prove the guilt against the accused persons beyond all reasonable doubts. He further argued that there are no specific allegations of utterance of any word regarding the provocation made by the accused persons. He further argued that all the Prosecution witnesses have been improvising the Prosecution story in material terms and there are glaring loopholes in the same and accordingly, it is argued that their testimony is not reliable. He further argued that there is considerable delay of 6 hours in registration of FIR. He further argued that though Prosecution witnesses are alleging that accused Durgesh was apprehended from the spot but the arrest memo of accused Durgesh was only prepared on next day at around 11:00 A.M. and hence it is argued that the involvement of said accused is an afterthought and mere display put forth by the Police officials to solve the present case. He further argued that as per the testimony of Prosecution witnesses there were around 500 to 1000 public persons at the alleged spot however, no public person has been made as a witness in the present case and no plausible explanation has been put forth by the Prosecution to explain the same. He further argued that there are material contradictions and improvisations in the story of the Prosecution and the accused persons have been implicated only to solve the present case and there is no evidence on record which can implicate the accused persons in the present case. He finally argued that accused persons deserves to be acquitted as the Prosecution has failed to establish a case against the accused persons beyond all reasonable doubts.
FIR No. 52/10 State v. Durgesh & Ors. 4 of 27
PS Anand Parbat
ANALYSIS AND APPRECIATION OF EVIDENCE,
AND FINDINGS
5. Before elaborately discussing the ingredient of offences with which accused persons are charged, this Court deems it appropriate to discuss general principles of appreciation of evidence and only then it would be wise to apply these principles on the facts and circumstances of this case keeping in view also the ingredients of the offence in question.
6. It is a settled proposition of criminal law that the Prosecution is supposed to prove its case on judicial file beyond all reasonable doubts by leading reliable, cogent, and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rest on the shoulders of the Prosecution. It must be seen whether the Prosecution had been able to establish the actus reus as well as the mens rea of the accused persons in the present case and that the case against the accused persons is established beyond all reasonable doubts. It is a settled Law that punishment of an accused person on the basis of suspicion alone has been held to be not permissible. Suspicion alone cannot give probative value to testimony which in itself is insufficient to establish or justify an inference of a particular fact. In order to prove its case, Prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defence of the accused. The burden of proof of the version of the Prosecution in a criminal trial throughout the trial is on the Prosecution and its never shifts to the accused and the accused is entitled FIR No. 52/10 State v. Durgesh & Ors. 5 of 27 PS Anand Parbat to the benefit of every reasonable doubt in the Prosecution story and such doubts entitles the accused to acquittal.
7. Before proceeding with the appreciation of evidences, it is imperative to refer the definition of the offences charged against the accused persons. For better understanding sections 147, 148, 149, 186, 332, 353 IPC and section 3 of The Prevention of Damage to Public Prop- erty Act, 1984 are reproduced as follow:
Section 141 IPC:
Unlawful assembly. --An assembly of five or more persons is designated an "unlawful assembly," if the common object of the persons composing that assembly is--
(First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation. --An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Section 146:
Rioting. -- Whenever force or violence is used by an unlawful as- sembly, or by any member thereof, in Prosecution of the common FIR No. 52/10 State v. Durgesh & Ors. 6 of 27 PS Anand Parbat object of such assembly, every member of such assembly is guilty of the offence of rioting Section 147:
Punishment for rioting. -- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 148:
Rioting, armed with deadly weapon. --Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 149:
Every member of unlawful assembly guilty of offence committed in Prosecution of common object. --If an offence is committed by any member of an unlawful assembly in Prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in Prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 186:
Obstructing public servant in discharge of public functions. -- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 332:
Voluntarily causing hurt to deter public servant from his duty.-- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or FIR No. 52/10 State v. Durgesh & Ors. 7 of 27 PS Anand Parbat with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 353:
Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 3 of The Prevention of Damage to Public Property Act, 1984 Mischief causing damage to public property. -- (1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being--
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-
communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, FIR No. 52/10 State v. Durgesh & Ors. 8 of 27 PS Anand Parbat but which may extend to five years and with fine:
Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
8. Thus, the Prosecution was required to show by way of cogent and reliable evidences that the accused persons had, on alleged date and time, assembled in an unlawful assembly, armed with deadly weapons, and thereby used force or violence owing to which the complainant and Police officials were obstructed in their official duties and had also voluntarily caused Hurt to the Police officials while they were discharging their duties. The Prosecution was further required to show that the accused persons had in furtherance of their common object had assaulted or used criminal force upon the police officials while they were discharging their duties with intent to prevent them from doing the same. The Prosecution also had to show that the accused persons in committing the above acts also damaged the case property i.e., PCR van in question.
9. In the case at hand, the Prosecution had examined 15 witnesses who all are police officials except PW-12 Dr. Apoorva Saxena. Though a Police officer too can be a witness and his /her testimony cannot be discarded merely because he/she is a police officer, however, the testimony of police witnesses must be scrutinized from a higher pedestal on account of the authority and power they exercise on behalf of the state in comparison to public witnesses so as to rule out the possibility of abuse of power and authority in solving a case.
FIR No. 52/10 State v. Durgesh & Ors. 9 of 27
PS Anand Parbat
10. PW-1 and PW-8 are the witnesses which appears to be immediately present at the alleged time and place as they were on respective field duties. PW-2 to PW-7, PW-11, PW-13, and PW-14 are the police officials who reached at the alleged place and time after the information was given by the complainant/PW-1 namely Ct. Sansbir to the then SHO/PW-5. The testimony of these witnesses is appreciated separately, and cumulatively in the later part of this Judgment. PW-9 and PW-10 are police officials and during their deposition they proved the arrest and personal search memos of the accused Ashok Kumar @ Murgewala which is Ex.PW9/A and Ex.PW9/B and accused Mohd. Irshad which is Ex.PW10/A and Ex.PW10/B respectively. PW-12 namely Dr. Apoorva Saxena proved MLC No 24916 Ex.PW12/A, MLC No 24921 Ex.PW12/B, MLC No 224923 Ex.PW12/C, MLC No 24919 Ex.PW12/D, MLC No 24924 Ex.PW12/E, MLC No 24917 Ex.PW12/F, MLC No 24922 Ex.PW12/G. Hence the injuries in nature of simple hurt stands established.
11. Now, it to be seen that whether the Prosecution has been able to prove that the accused persons had formed an unlawful assembly or joined an assembly which was unlawful and thereby used force or violence to prevent the police officials in discharging their duties and accordingly, caused hurt to them in discharge of their duties with an intent to prevent them from doing their duties, and damaged the PCR van in question in while doing the above acts.
FIR No. 52/10 State v. Durgesh & Ors. 10 of 27
PS Anand Parbat
12. PW-1/Complainant is the person on whose account the criminal machinery in the present case had started to move. The testimony of the said witness is important as owing to his information to the PW-5 the other police officials had reached at the spot, and the accused Durgesh was also identified as the said witness saw him abetting the crowd. The said witness has deposed on the lines of the story of the Prosecution and supported the case of the Prosecution. However, the comparative perusal of the statement of PW-1 during his deposition before the Court, and before the IO which is Ex.PW1/B shows that the PW-1 has been inconsistent and have been improvising his version from his earlier statement as the said witness during his statement recorded on next day before the IO which is Ex.PW1/B had nowhere stated that the accused Durgesh had been apprehended or taken in custody as he was abetting the crowd, whereas, during his examination before the Court he had stated that the accused Durgesh was taken into custody at the spot itself. Moreover, the PW-1 had stated in his statement EX.PW1/B that accused Durgesh, Ashok Yadav, Ashok Murgewala, and Triloki were instigating and abetting the crowd however, during his examination he states the name of accused Mohd. Irshad too, apart from the above said names, as the instigator and abettor of the crowd. It has not been mentioned by the witness as to what provocation was being given by the accused persons. This clearly shows that the PW-1 has been improving the story of the Prosecution and more and more facts are being introduced to support the case of the Prosecution. Further, the said witness has not been able to depose on any facts qua the arrest memo Ex.PW1/A of the accused FIR No. 52/10 State v. Durgesh & Ors. 11 of 27 PS Anand Parbat Durgesh, though he is stating that accused Durgesh was taken into custody at the spot itself, the perusal of arrest memo Ex.PW1/A reflects that the accused is shown to have been arrested on the next day i.e., 16.07.2010 at around 11:00 A.M. It has not been explained by the Prosecution as to why there is considerable delay of around 12 hours in the preparation of arrest memo of accused Durgesh. It is surprising to note that when all the formalities relating to Rukka Ex.PW13/A, and FIR Ex.AD-01A were done in the morning then why is the arrest memo of a person who has been arrested at the spot while committing the crime has been prepared with such a considerable delay. This creates a doubt in the presence of the accused Durgesh at the spot. Further, the PW-1 is totally silent about the preparation of site plan in the present case, whereas PW-13/IO has stated that site plan was prepared at the instance of the complainant/PW-1. Further, PW-1 has deposed that he was taken to hospital for his medical examination just after the incident however, the perusal of MLC of said witness Ex.PW12/A shows that the said MLC was prepared on 16.07.2010 at around 12:15 P.M., moreover, the said MLC does not even bear the thumb impression of the injured. It has not been explained by the Prosecution that at why the MLC of the PW-1 was prepared at 12:15 P.M. on 16.07.2010 whereas the MLC of other injured was prepared during the midnight of alleged date. All these inconsistencies and improvisations when taken together does not inspire much confidence into the credibility of the testimony of witness PW-1 as it appears the said witness is materially improvising his version to establish the facts and circumstances omitted during his previous statement Ex.PW-1/B to support the case of FIR No. 52/10 State v. Durgesh & Ors. 12 of 27 PS Anand Parbat the Prosecution. It appears that an attempt is being made to establish the presence of accused persons in the gathering of protesting crowd for reasons best known to the witness.
13. Further, the Prosecution examined PW-2 HC Rambir who also supported the case of the Prosecution and deposed on the same lines as that of PW-1. PW-2 clearly stated that one person namely Durgesh was apprehended from the crowd by the Police and the said witness identified the accused Durgesh in the Court. However, the said witness has not been able to depose anything regarding the role of the accused Durgesh and other accused persons, and as to what were they doing at the spot which made the police officials apprehend the accused Durgesh. The witness has not deposed anything regarding the provocation and abetment, if any, being made by the accused persons or that they were pelting stones upon the police party at the alleged time and place. Thus, his testimony too does not appear to be of much importance for the case of the Prosecution.
14. The Prosecution then examined PW-3, who also deposed on the same lines of PW-1 and supported the case of the Prosecution. The witness remained consistent in his deposition.
15. The Prosecution then examined PW-4, PW-7, PW-8, and PW-11. The testimony of these witnesses is being appreciated together as they depose on similar lines but they differ from other Prosecution witnesses to the extent that they have not been able to depose anything about the FIR No. 52/10 State v. Durgesh & Ors. 13 of 27 PS Anand Parbat apprehension of accused Durgesh from the spot. The said witnesses though support the case of the Prosecution to the extent that on the alleged date and time the public had gathered at the spot and they were pelting stones upon the police officials, however, the witnesses have been totally silent as to the apprehension of any person from the spot or that any of the accused persons were even involved into the alleged incident. Moreover, the PW-7 has stated that he could not see the persons who were leading and provoking the mob. The witnesses have been consistent in their deposition with their previous statement however, the witnesses have not stated of anything regarding the role any of the accused persons even though they too were present at the spot along with other Prosecution witnesses.
16. The Prosecution then examined PW-5 who was the SHO of PS Anand Parbat at the alleged time. He also supported the case of the Prosecution and stated that on the alleged date and time an accident had happened and around 1000 public persons were shouting violently and started pelting stones upon them. PW-5 deposed that he was told by PW-1 Ct, Sansbir that accused Durgesh was leading the mob and that accused Ashok Murgewala, Ashok Yadav, Triloki and Irshad were also helping Durgesh in provoking the mob. The testimony of PW-5 appears to be hearsay evidence as he has not been able to depose anything qua the accused persons and has relied on the version told by the complainant/PW-1 who himself has been inconsistent and improvising the story of the Prosecution. Further, the witness states that one mini bus also FIR No. 52/10 State v. Durgesh & Ors. 14 of 27 PS Anand Parbat got damaged during the alleged incident, however, PW-1/complainant and PW-13/IO are totally silent on that aspect. No seizure memo or pictures of the alleged bus has even been placed on record by the Prosecution even though PW-11 deposes that the photographs of the mini bus were taken in his presence. PW-5 stated during the cross examination that he did not notice whether the accused persons were present at the spot or not, he tried to explain that it was not possible for him to see who were present and who were not. This part of the deposition of PW-5 becomes material as the presence of the accused persons have been disputed the learned counsel and a suggestion regarding the same was put to the said witness, however, the same was denied. The witness states that the accused persons were interrogated by him however, no document of interrogation has been placed on record by the Prosecution. The witness states that uniform of one Police official was torn during the alleged incident, however, he is unable to specify the name of the said Police official and no such uniform has even been placed on record by the Prosecution. No other witnesses of the Prosecution have been deposing anything regarding the torn uniform. The PW-5 has been improvising the story of the Prosecution and more facts, on a similar pattern, are being introduced in the story of the Prosecution. The testimony of the said witness is hearsay evidence, and is full of material improvisations which has not been proved and hence, his testimony does not appear to be credible and reliable.
17. The Prosecution then examined PW-6 who also supported the case of the Prosecution. The said witness too deposes on the same lines as that FIR No. 52/10 State v. Durgesh & Ors. 15 of 27 PS Anand Parbat of PW-1 and PW-3. He deposed that accused Durgesh was apprehended at the spot and he came to know that accused Durgesh was leading the mob, but it is not stated by the witness that as to how and from whom the witness came to know about the role of the accused Durgesh, which creates doubt regarding his source of knowledge and renders that aspect of his testimony as hearsay evidence. Moreover, during his cross- examination the said witness had stated that he had not told in his previous statement u/s 161 Cr.P.C. that accused Durgesh was leading the mob. Further, the witness, though states that he saw accused Ashok Kumar, Ashok Yadav, Triloki and Irshad at the spot and that they were provoking the crowd however, during his cross-examination he admitted that he had not stated in his previous statement u/s 161 Cr.P.C the names of accused Ashok Kumar, Ashok Yadav, Triloki and Irshad. The witness explained that he had told that he can identify remaining accused persons, but since the witness had admitted in his examination in chief that he knew the accused persons prior to the alleged incident and if at all he saw the accused persons at the spot then this Court fails to understand as to why their names were withheld by the witness during his statement u/s 161 Cr.P.C. The learned counsel had suggested to the witness that he had made such statement u/s 161 Cr.P.C. as the accused Durgesh was not arrested by that time. The said suggestions when read with the arrest of accused Durgesh Ex.PW1/A becomes relevant as the witness has been improvising his version before the Court and thus creates a doubt regarding the presence of accused persons at the spot. The witness has been inconsistent and his piece of testimony appears to be unreliable as the PW-6 has been FIR No. 52/10 State v. Durgesh & Ors. 16 of 27 PS Anand Parbat improvising the story of the Prosecution and more facts, on a similar pattern, are being introduced in the story of Prosecution and hence, does not appear to be credible and reliable.
18. The Prosecution then examined PW-13 who is the 1 st IO of the present case and the said witness though has supported the story of Prosecution but has not stated anything regarding the roles of accused persons played by them at the spot. The PW-13/IO states that the crime team was called on the spot and the photographs of the spot were taken by the crime team however no such photographs have ever been placed on record, moreover, no person from the crime team has been made a witness in the present case and no explanation has been put forth by the Prosecution regarding the same. The witness stated that he prepared the site plan at the instance of the complainant/PW-1 however, no site plan has been placed on record, even PW-1/complainant has been totally silent on the point of site plan, which further raises doubt as to whether any site plan was at all prepared or not. The witness states that he recorded the disclosure statement of the accused Durgesh, however, no such disclosure statement has been placed on record. The witness though stated that he can identify the accused Durgesh and Ashok @ Murgewala but identified the accused Ashok Yadav and told him as the accused Ashok @ Murgewala and further stated that he is unable to identify accused Durgesh owing to lapse of time. Even during cross-examination, when the Ld. APP pointed towards the accused Ashok @ Murgewala and Durgesh and asked the witness whether they are accused Ashok @ Murgewala and Durgesh FIR No. 52/10 State v. Durgesh & Ors. 17 of 27 PS Anand Parbat to which he stated they might be Ashok @ Murgewala and Durgesh. Hence the witness failed to identify accused Ashok @ Murgewala and Durgesh and wrongly identified accused Ashok Yadav as Ashok @ Murgewala. During the cross-examination by the learned counsel the witness denied the suggestion that accused Durgesh was not arrested from the spot or that his disclosure statement was not recorded by him or that he had not prepared the site plan. The witness admitted that no such disclosure statement or site plan has been placed on record. No plausible explanation has been put forth by the Prosecution regarding the absence of the said disclosure statement and the site plan. the witness has not been able to depose anything regarding the roles played by the accused persons. The testimony of PW-13 is full of loopholes and contains lots of grey areas which has not been explained by the Prosecution. The testimony of PW- 13/IO does not inspire confidence into the story of the Prosecution for the reasons mentioned as above.
19. PW-14 who is 2nd IO in this case was then examined. The said witness has not been of much importance to the Prosecution as he was 2 nd IO of the present case and did only the formal part of the investigation. However, during the cross-examination by the learned counsel the witness had stated that he had not recorded the statement of any public witness during the investigation. It is not denied by the witness that the alleged spot was a public place, however, despite that he has not made any effort to join the public witnesses in the present case. No Explanation has been put forth by the Prosecution in this regard.
FIR No. 52/10 State v. Durgesh & Ors. 18 of 27
PS Anand Parbat
20. PW-15 was the last and final witness of the Prosecution who deposed and proved the complainant filed by him u/s 195 Cr.P.C. the testimony of the said witness is merely formal in nature and does not support or affect the case of the Prosecution.
21. I have given thorough and anxious thoughts to testimonies of Prosecution witnesses and all the evidences placed on record by the Prosecution for the purpose of their appreciation as per settled Law.
22. At the outset, it is pertinent to note that the witnesses of the Prosecution have been deposing regarding the alleged incident in two different manners. Though all the Prosecution witnesses are police officials and except for PW-9, PW-10, PW-12, PW-14 and PW-15 all other Prosecution witnesses were present at the spot, still the perusal of record reflects that there are two versions of the incident. The PW-1, PW-2, PW- 3, PW-5, PW-6, and PW-13 (hereinafter as category No. 1 PWs), are all police officials who were posted at the PS Anand Parbat on the alleged date and time, and PW-4, PW-7, PW-8 and PW-11 (hereinafter as category No. 2 PWs) are police officials who were not posted at PS Anand Parbat on the alleged date and time. The perusal of testimony of category No.1 PWs reflects that these witnesses have been deposing on similar pattern, and they have been supporting the case of the Prosecution. It is pertinent to note that out of the testimony of category No. 1 PWs, only PW-3 could withstand the scrutiny of trial and rest of the PWs i.e., PW-2, PW-3, PW-
FIR No. 52/10 State v. Durgesh & Ors. 19 of 27
PS Anand Parbat
5, PW-6, and PW-13, for the reasons mentioned in afore discussed part, have not been found to be reliable. Whereas, the perusal of testimony of category No. 2 PWs reflects that though they have been supporting the case of the Prosecution to the extent that there was gathering of public at the alleged spot but they have not been stating anything qua the role of the accused persons. These category No. 2 PWs have not deposed anything regarding the apprehension of accused Durgesh from the spot. They have also not stated anything qua the presence of remaining accused persons even though the witnesses are stated to be present at the alleged time and place and were also among the injured persons/victims. No Time Identification of accused persons except accused Mohd. Irshad (PO) has ever been conducted by the IO so as to establish the circumstantial identity of accused persons by these witnesses. No explanation has been put forth regarding the same. The version of category No.1 PWs appears to be more reliable as they have been consistent in their deposition and appears to be more credible. Hence, in view of the same the presence of accused persons at the alleged spot and time does not stands proved which is very essential for the purpose of the offences of Section 148, 149, 186, 332, 353 IPC and section 3 PDPP Act. Since the presence of the accused persons becomes a clouded fact, the same raises a doubt in the story of the Prosecution qua the committing of alleged offences by the accused persons and accordingly, the benefit of the same must be given to the accused persons.
23. Further, the statutory provision for the offence of u/s 148 IPC FIR No. 52/10 State v. Durgesh & Ors. 20 of 27 PS Anand Parbat requires that the rioters are armed with any deadly weapon. At the very outset, I have no hesitation in holding that Prosecution has failed to lead any evidence to the effect that the rioters were armed with any weapon leave aside "Deadly weapons". The Prosecution witnesses have simply testified that the rioters pelted stones. The PW-13/IO has clearly deposed that photographs of the crime scene were taken by the crime team, however, as discussed above, no such photographs has ever been placed on record, which further reinforces the doubt as to alleged incident itself. Merely stating that there was a riot at some place would not sufficient. The Prosecution has to place of record some or other reliable evidence which will prove that the alleged incident of rioting has even taken place. The non-recovery of weapon of offence i.e., stones, and non-placement of crime scene photographs without any plausible explanation proves fatal to the case of the Prosecution as the same raises a doubt whether any such incident has ever occurred or not. Mere statement to the effect that riot had occurred and the PCR van was damaged by the provocation and abetment of accused persons does not suffice to prove the offence of rioting and unlawful assembly u/s 147, 148 and 149 IPC. Hence, I hold that the ingredients of section 147, 148 and 149 IPC have not been proved by the Prosecution. Further, the liability of accused persons u/s 186 332, 353 IPC and section 3 PDPP Act can also not be extended on the principle of common liability when the offences of section 147, 148 and 149 IPC itself has not been proved by the Prosecution.
24. It is further pertinent to note that despite presence of several public FIR No. 52/10 State v. Durgesh & Ors. 21 of 27 PS Anand Parbat persons on the spot, the IOs did not make any effort to join the public persons at the time of conducting investigation. None of the witness deposed regarding the joining of any independent public witness to the investigation. Further, it is pertinent to note that PW-5 deposed that there were large number of persons of around 1000 in numbers who had gathered at the spot, however, no efforts have been made by the IOs to join the public witnesses in the present case. Moreover, the PW-14 who is the 2nd IO clearly and specifically stated that he did not ask any public witness to join the investigation. No explanation has put forth qua the non- joining of public persons. It is a well settled position of law that non- joining of public witnesses creates doubt over the fairness of the investigation by the police. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. Joining of independent witnesses would have given credibility to the case of the Prosecution. Therefore, non-joining of independent witness casts a doubt on the fairness of the investigation. In this regard, it would be apposite to refer to the judgment of Hon'ble High Court of Delhi in Pawan Kumar v. Delhi Administration, 1987 SCC OnLine Del 290, wherein it had been observed as under:
"...Admittedly, there is no impediment in believing the version of the Police officials but for that the Prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made FIR No. 52/10 State v. Durgesh & Ors. 22 of 27 PS Anand Parbat to join any public witness even though number of them were present. No plausible explanation from the side of the Prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
25. Further, in Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi had observed as under:
"It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding FIR No. 52/10 State v. Durgesh & Ors. 23 of 27 PS Anand Parbat party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
26. Therefore, the Prosecution is required to prove that sincere efforts were made to join independent witnesses and in absence of the same, the Prosecution case has to be viewed with circumspection. The perusal of record reflects that no efforts were ever made to make public join the investigation. Though, it is also a settled position of law that the Prosecution version cannot be thrown out or doubted on the sole ground of non-joining of public witnesses. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the Prosecution but there are other material loopholes too, as discussed hereinbefore, which raises suspicion over the Prosecution version.
27. Last but not the least, it would be apposite to discuss the observations laid down by the Hon'ble Supreme Court on the aspect of fair and judicious investigation. The Hon'ble Supreme Court of India in Babubhai Versus State of Gujarat and others, (2010) 12 Supreme Court Cases 254, had in para 32 observed as under:
"The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the FIR No. 52/10 State v. Durgesh & Ors. 24 of 27 PS Anand Parbat accused that the investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a Prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth"
28. The Hon'ble Apex Court thus, while observing the role of investigation agencies, observed that the investigation of any criminal case should be fair and judicious as the same being the minimum requirement for rule of law. A tainted investigation of a case not only affects the accused persons but at the same time it would equally be unfair for the aggrieved person(s). An unfair and injudicious investigation has the tendency to not only affect a fair trial and fair investigation, but the society and the victim also suffers on account of such tainted investigation, as because of such unfair and injudicious investigation, fair trial becomes a casualty and the person who is accused of an offence would be let off not because of lack of any evidence or material, but because of unfair and injudicious investigation by the investigation agency.
FIR No. 52/10 State v. Durgesh & Ors. 25 of 27
PS Anand Parbat
CONCLUSION:
29. In the instant case, after analyzing material placed before it, this Court, with deep anguish, holds that the investigation of the present case has been conducted in the most callous and shoddy manner as all the procedural formalities regarding the basic methods of collecting evidences has been thrown to the winds, and the IOs have merely appears to have done a lip service to solve the present case and an investigation in the nature of a sham has been put forth to solve the offences of the present case. As discussed, the IO has not placed on record the site plan, disclosure statement of accused Durgesh, crime team reports and the photographs of the crime scene, even though the said documents have been stated to have been prepared by him. No explanation is forthcoming by the Prosecution regarding the same. No public witnesses have been joined in the present case and no attempt has been made to explain the non-joining of the public witnesses, no photographs or video footage of the alleged incident where such a large group of people of around 500 to 1000 has been placed on record. There is a material difference in the testimony of the Prosecution witnesses who were present at the spot on the alleged date and time.
30. Accordingly, in light of the above discussed reasoning, this Court is of the considered opinion that the Prosecution has miserably failed to establish a case u/s 186, 149, 353, 332, 148 IPC & Section 3 of PDPP Act FIR No. 52/10 State v. Durgesh & Ors. 26 of 27 PS Anand Parbat against the accused persons beyond all the reasonable doubts. There are glaring loopholes and material improvisation on similar patterns which has been proved to be fatal to the case of the Prosecution. Thus, the accused Durgesh, Ashok Yadav, Ashok @ Murgewala, and Triloki stands acquitted for the charges of section 186, 149, 353, 332, 148 IPC & Section 3 of PDPP.
31. File be consigned to the record room as per rules.
This Judgment contains 27 pages and each page has been initialled by the undersigned.
Earlier Bail Bonds are accepted u/s 437A CrPC.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2023.01.20
17:30:26 +0530
Announced in the open Court (Shubham Devadiya)
on 20th day of January 2023 Metropolitan Magistrate
West-05, Delhi
FIR No. 52/10 State v. Durgesh & Ors. 27 of 27
PS Anand Parbat