Delhi District Court
State vs . 1. Laxman Lal Junglia on 12 April, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC, E-COURT : KARKARDOOMA
COURT: DELHI.
SESSIONS CASE No. 125/10
FIR No.77/10
U/S: 304/34 IPC
PS Kalyan Puri
State Vs. 1. Laxman Lal Junglia
S/o Sh. Gheesu Ji Junglia
R/o Village Mali Kheda Dehlona,
Tehsil Shahda, PS Ganga Pur,
Distt. Bhilwara, Rajasthan.
2. Mukesh Kumar Mongia,
Sh. Puran Lal Mongia,
R/o Village Pipli Acharyan,
Tehsil Rajsamand, Distt. Rajsamand,
P.S. Kanvaria, Rajasthan.
Date of Institution : 07.09.2010
Date of Arguments : 27.03.2012
Date of Judgment : 12.04.2010
JUDGMENT
1. Prosecution case is that on 12.03.2010 at about 6.30 pm, Duty Constable, LNJPN Hospital telephonically informed at FIR No. 77/10 Page 1 of 25 PS Kalyan Puri that Mahender, who received injuries in a quarrel at Bhains Mandi Gazi Pur, was got admitted in the hospital by his brother Khema vide MLC No. 29168/10. The information was recorded vide DD No. 27-A. PSI Sushil Kumar was informed about the call. He along with Constable Rajender went to LNJPN Hospital where injured Mahender was found to be under treatment and was unfit for statement. Badri, brother of Mahender met him in the hospital and gave the statement that on 08.03.2010, he along with his real brother Mahender had brought buffaloes of trader Kailash on their truck No. RJ9G-A-4154 to Gazi Pur Bhains Mandi. Kailash also accompanied them to Mandi. On reaching Gazi Pur Bhains Mandi at about 10.30 pm, the truck was unloaded and Kailash was selling the buffaloes. Mahender slept in the truck and while he himself was going to a nearby hotel to take food, accused Laxman, Mukesh and Gheesa met him. Laxman and Mukesh were under the influence of liquor. They told him "Tu Bahut Bolta Hai, Humse Pahle Gaadi Mandi Mein Laga Leta Hai"
and abused him. Mukesh and Laxman were having iron rods in their hands and Gheesa was armed with a lathi. On hearing the noise of commotion, Mahender also came there and when he tried to intervene, accused Laxman gave a blow on the head of Mahender with an iron rod and Mukesh and Gheesa also gave blows to Mahender on his back with lathi and rod. Mahender started bleeding and fell down on the ground. He got scared and fled away from there. After sometime when he returned at the FIR No. 77/10 Page 2 of 25 spot with the other people of the Mandi, he found that his brother Mahender was lying unconscious in a pool of blood. By that time, accused Laxman, Mukesh and Gheesa fled away from the spot. With the help of Mandi people, Mahender was put in a van and the van driver was asked to take his brother Mahender to the hospital while he himself went to inform his family members. On 12.03.2012, he got the information that his brother Mahender was admitted in LNJPN Hospital. On the statement of Badri, rukka was prepared and FIR was registered under Section 308/34 IPC. After the registration of the FIR, investigation was entrusted to SI Raj Kumar. He prepared the site plan on the pointing out of Badri. On 12.04.2010, Badri was discharged from the hospital in an unfit condition. On 16.05.2010, an information was received by the IO regarding the death of Mahender. His postmortem was conducted at Bhilwara, Rajasthan. Accused Laxman and Mukesh were arrested from PS Ganga Pur, Rajasthan. They were identified by Badri but third accused Gheesa could not be arrested. Section 304 IPC was added. Mahender remained in coma throughout. His statement could not be recorded. Accused Laxman and Mukesh got recovered the weapon of offence i.e. iron rods. On completion of investigation, it was concluded that Badri could not inform the police as he got busy in giving information to his family members. Charge sheet was prepared under Section 304/34 IPC and accused Laxman Lal Junglia and Mukesh were sent to court for trial.FIR No. 77/10 Page 3 of 25
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 304/34 IPC was prepared against the accused to which, they pleaded not guilty.
3. In order to prove its case, prosecution examined 17 witnesses. PW-1 is Badri. He is the complainant. He proved the statement given to the police as Exbt. PW-1/A. He deposed that both the accused were arrested 15-30 days after the incident from Village Gazi Pur.
PW-2 is Lalu. He deposed that deceased Mahender was his nephew and that about 4-5 months back, his nephew Badri informed him that Mahender had received injuries in a quarrel with Laxman, Mukesh and Gheesa and on receiving this information, he came to Delhi with his brother Khema and 2-3 more persons. They then informed Delhi Police about the incident but police did not hear their problem on that day due to language problem and after 2-3 days, police registered the case. He deposed that after discharge from LNJPN Hospital, they took Mahender to Udai Pur Hospital at Rajasthan where he was medically treated. From Udai Pur Hospital, he was brought to the village. On the next day, he died. They then informed the police of PS Ganga Pur about the FIR No. 77/10 Page 4 of 25 death of Mahender. He stated that he had given written application to this effect which is Exbt. PW-2/A. He had identified the body of Mahender vide statement Exbt. PW-2/B. PW-3 is Khema. He deposed that he used to bring buffaloes from Rajasthan to Gazi Pur for sale and that about six months back, he along with Kailash, Badri and Mahender had brought buffaloes in a truck to Delhi. He was standing behind the truck unloading the buffaloes. Mahender was sleeping inside the truck. Badri had gone to eat meals. Both the accused namely Laxman and Gheesa, who were known to him, started beating Badri in front of the truck. On hearing the shouts of Badri "Maar Diya - Maar Diya", he rushed to the spot. Both the accused were holding iron rods in their hands and Gheesa was holding a lathi. Mahender also reached at the spot by that time. Laxman hit Mahender on the head with an iron rod. Mukesh and Gheesa also assaulted him with iron rod and lathi. Thereafter, all the three assailants ran away from the spot. Mahender fell down on the ground. He deposed that when quarrel was going on, Badri got scared and ran away from the spot. He stated that blood was oozing from the head of Mahender and with the help of other persons present in Gazi Pur Mandi, Mahender was sent to hospital. He stated that he himself went to Irwin Hospital after two hours. Mahender was unconscious in the hospital and next day at FIR No. 77/10 Page 5 of 25 12.00 noon, Badri also reached Irwin Hospital. He further deposed that on 12th the condition of Mahender deteriorated. He and Badri informed the police. From Irwin Hospital, Mahender was taken to Udai Pur where he remained admitted in 15-20 days. The doctor at Udaipur told them that condition of Mahender was very serious and asked them to take Mahender at house. Mahender remained in coma and after two days, he died. They then informed the local police. Postmortem of the body of Mahender was conducted at Ganga Pur. Local police informed Delhi Police. Thereafter, both the accused were arrested by Delhi Police.
PW-4 is ASI Hazari Lal from PS Ganga Pur, District Bhilwara, Rajasthan. On 16.05.2010, he conducted Panchnama proceedings and got conducted the postmortem on the body of deceased Mahender. He handed over the Panchnama proceedings Exbt. PW-2/B and postmortem report to SI Raj Kumar which was seized vide memo Exbt. PW-4/A. PW-5 is Dr. Tarun Kumar Gupta from M.B. Hospital, Udai Pur. He deposed that Mahender was admitted in Neuro Surgery Ward of the hospital on 13.04.2010 and was operated on
09.03.2010 at J.P. Trauma Center for evacuation of extra dural haematoma. He stated that patient was discharged on 12.05.2010 and at the time of discharge, his condition had slightly improved.
FIR No. 77/10 Page 6 of 25He proved the discharge summary Exbt. PW-5/A. PW-6 is Amar Singh. Deceased was his nephew. He stated that Mahender remained admitted at Udai Pur Hospital for about a month and thereafter he was taken to the house as doctor had stated that he was incurable. He expired on 16.05.2010. He had participated in the Panchnama proceedings Exbt. PW-2/B. PW-7 is Rattan Singh. He is also the witness to the Panchnama proceedings Exbt. PW-2/B. PW-8 is Dr. P.N. Pandey from Lok Nayak Hospital. He had operated Mahender on 09.03.2010 and discharged him on 12.04.2010. He proved the discharge summary as Exbt. PW-8/A. He stated that during treatment, the condition of the patient improved a lot.
PW-9 is Danveer Singh, Record Clerk from Lok Nayak Hospital. He produced the treatment record of Mahender Singh which is Exbt. PW-9/A. PW-10 is Constable Rajender Singh. He is the witness of FIR No. 77/10 Page 7 of 25 investigation. He took the rukka to the police station for the registration of the FIR and after registration of the FIR, he handed over the copy of FIR and rukka to SI Raj Kumar.
PW-11 is Constable Ranbir Singh. He had accompanied SI Rajbir, Constable Mahender and Constable Sanjeev to PS Ganga Pur District Bhilwara, Rajasthan. He stated that accused Laxman and Mukesh were in the custody of local police and were arrested in the present case.
PW-12 is Constable Mahender. He is the witness of arrest of accused Laxman and Mukesh from PS Ganga Pur. He deposed that both the accused led the police to main gate of Bhains Mandi, Gazi Pur and pointed out the place of incident vide memo Exbt. PW-12/A and Exbt. PW-12/B and on interrogation, they gave disclosure statements Exbt. PW-12/C and Exbt. PW-12/ D. He further deposed that in pursuance to the disclosure statements, accused Mukesh got recovered an iron rod measuring 70 cms and accused Laxman got recovered a saria measuring 46 cms from the bushes near drain in front of Bhains Mandi and they were kept in separate pullandas which were sealed with the seal of SI Raj Kumar and they were then seized vide memos Exbt. PW-12/E and Exbt. PW-12/F respectively.
FIR No. 77/10 Page 8 of 25PW-13 is HC Gautam Soni, Duty Officer. He had recorded DD No. 27-A Exbt. PW-13/A and FIR Exbt. PW-13/B. PW-14 is SI Sunil Kumar. He is the first IO. On receipt of DD No. 27-A, he along with Constable Rajender went to LNJP Hospital and procured the MLC of Mahender who was unfit for statement. Brother of Mahender named Badri met him. He recorded his statement and prepared the Rukka Exbt. PW-14/A and sent the same at police station through Constable Rajender for the registration of the FIR.
PW-15 is SI Raj Kumar. He is the second IO. He took up the investigation on 13.03.2010 after registration of the FIR. During investigation, he tried to record the statement of injured Mahender but he was unfit for statement. He inspected the spot and prepared the site plan Exbt. PW-15/A at the instance of Badri. On 18.04.2010, he examined Khema, uncle of injured and on 16.05.2010, on receipt of telephonic information from PS Ganga Pur, Rajasthan about the death of Mahender, he along with other police staff reached there. He was informed by ASI Hazari Lal that postmortem of the deceased Mahender was conducted and the body was handed over to the relatives. Both the accused were in the custody of the local police. Complainant Badri was also present there. Both the accused were arrested.
FIR No. 77/10 Page 9 of 25They gave disclosure statements and in pursuance to the said disclosure statement, accused got recovered two iron rods measuring 46 cms and 70 cms from a bush near Bhains Mandi, Gazi Pur.
PW-16 is Dr. Mahesh Maheshwari from Community Health Center, Shahpura District, Bhilwara, Rajasthan. He had conducted the postmortem of the deceased. His report is Exbt. PW-16/A. PW-17 is Dr. Yogesh Prahlad from LNJP Hospital. He had examined the injured 2-3 times while he was admitted in the hospital and had prepared the clinical notes on the treatment record Exbt. PW-9/A.
4. Statements of both the accused were recorded wherein they stated that they were innocent.
5. In their defence, accused examined DW-1 Mange Lal who deposed that on 08.03.2010, he had heard that a Banjara, whose name he does not remember, had fallen from the truck while bringing down the buffaloes. He further stated that he knows accused Laxman and Mukesh as their house is opposite to their FIR No. 77/10 Page 10 of 25 house and on that day, they were present at their house.
6. Arguments have been heard from Mohd. Iqrar, Additional PP for the State and S. Haq, the learned counsel for accused. PW-1 Badri and PW-3 Khema are the two star witnesses of the prosecution. The entire prosecution case mainly rests on their testimonies, they being the alleged eye witnesses of the occurrence. The learned defence counsel has submitted that both these witnesses are planted witnesses of the police. Their conduct at the time of incident coupled with the fact that FIR was lodged after three days of the occurrence proves that they were not present at the spot at the time of occurrence. It is further submitted that no independent eye witness from the spot has been cited or examined by the prosecution and there is no independent witness of recovery of the iron rods. It is thus submitted that prosecution has miserably failed to prove its case against the accused beyond doubt. The learned APP, however, has argued that the testimonies of PW-1 and PW-3 are straight forward and cogent. Their presence at the spot is natural as they had come at Bhains Mandi for the sale of buffaloes and therefore there is no reason to disbelieve their testimonies. It is further argued that delay in the registration of the FIR is not fatal to the prosecution case and the recovery of iron rod is not vitiated because of non-joining of the public witnesses.
FIR No. 77/10 Page 11 of 257. PW-1 Badri deposed that about 5-6 months ago, he along with his brother Mahender and Kailash brought buffaloes in a truck bearing No. RZ9-GA-4154 from Ganna Pur, Rajasthan at Gazi Pur Bhains Mandi for sale and at about 10.30 am, they de- loaded the truck. While he was going to take food, accused Laxman, Mukesh and one Gheesa, who were known to him as they also used to do the same business and were from his neighbouring village Mali Khera, met him and started quarrelling with him. They asked him to remove his vehicle as they wanted to unload their vehicle first. He deposed that Mukesh was carrying an iron rod and accused Laxman was carrying a wheel pana while Gheesa was having a lathi. On hearing his noise, his brother Mahender also reached there and tried to intervene. Accused Laxman then hit an iron rod on the head of Mahender. Accused Mukesh and Gheesa also gave lathi and rod blows to Mahender due to which, he fell down. He stated that he ran away from the spot in order to save himself from the accused and took shelter near Gazi Pur Mandi and came back in the morning. He deposed that he does not know who took his brother to the hospital. He further stated that he informed his uncle Khema about the incident and in the evening, his uncle reached Delhi. He further stated that police came at Gazi Pur Mandi and he and his uncle Khema met the police and police recorded his statement Exbt. PW-1/A after 2- 3 days of the incident. He deposed that on the next day of FIR No. 77/10 Page 12 of 25 incident, he came to know that his brother was in the hospital and after 15-30 days of the incident, both the accused were arrested by the police from Village Ganga Pur. PW-1 was declared hostile and in the cross examination of the learned APP, he admitted that incident took place on 08.03.2012 at 10.30 pm. He admitted that after sometime of the incident, he returned back at the spot with some other people present in the Mandi and found that his brother Mahender was lying smeared in blood and was unconscious and that both the accused and Gheesa were not present there. He admitted that he put Mahender in a van and asked the van driver to take Mahender to the hospital and he himself informed the family members. He admitted that he had seen his uncle Khema amongst the crowd which had gathered at the spot. He admitted that subsequently, he came to know that that Mahender was admitted in the hospital by Khema. He admitted that the history of incident was given to the doctor after lodging of FIR. He admitted that since he was scared and illiterate and due to this reason, he could not inform the police immediately and police was informed subsequently after his relatives came from the village.
8. On an analysis of the testimony of PW-1 Badri, it is found that he could not tell the date and month of incident. According to him, Laxman was carrying a wheel pana and not rod. As per his testimony, the incident took place at 10.30 am while as per FIR, FIR No. 77/10 Page 13 of 25 the time of incident is about 10.30 pm. Although in examination in chief PW-1 stated that he ran away from the spot to save himself and came back at the spot in the morning and therefore does not know who has taken his brother to the hospital but in cross examination by the learned APP, he admits that after sometime of the incident, he returned back at the spot. There is court observation that whatever was said to the witness in cross examination by the learned APP, he nodded his head in affirmative. Thus, he is not a reliable witness. In cross examination by the defence, PW-1 was asked the name of the driver and the number of the vehicle in which Mahender was taken to hospital but he could not tell the same. He could not tell who accompanied Mahender in the vehicle from the spot to the hospital. He further stated that next morning, people in Mandi told him the name of hospital where Mahender was admitted. In further cross examination, PW-1 stated that he returned at the spot at 4.00 - 5.00 am same day. It is important to note that the incident allegedly took place at 10.30 pm and if that was so, how the witness could reach the spot at 4.00 - 5.00 am same day. Similarly, if Mahender was taken to hospital in the presence of PW-1, at least he would have known as to who had taken Mahender to the hospital. Neither in the statement Exbt. PW-1/A to the police nor in his examination in chief PW-1 Badri deposed about the presence of Khema at the spot at the time of occurrence. Rather, he deposes that he had informed his uncle FIR No. 77/10 Page 14 of 25 Khema about the incident. He admitted about the presence of Khema amongst the crowd only by way of leading question put up by the learned APP. PW-3 Khema deposed that he had come to Gazi Pur in the truck loaded with buffaloes accompanied by Kailash, Badri and Mahender but in the statement of Badri Exbt. PW-1/A as also in his deposition in court, PW-1 Badri stated that he was accompanied only by Mahender and Kailash in the truck and has not named Khema to be in the truck with them. PW-3 deposed that he and Badri informed the police on 12th when the condition of Mahender deteriorated but his statement was recorded as late as on 18th. If Khema had witnessed the occurrence, why his statement was not recorded for ten days? The presence of PW-3 Khema at the spot is further proved doubtful by the fact that PW-2 Lalu has deposed that on receiving information, he came to Delhi along with his brother Khema and 2- 3 more persons which clearly means that Khema was not present at Delhi at the time of occurrence.
9. There are also contradictions between the testimonies of PW-1 Badri and PW-3 Khema. PW-1 deposed that when he returned back at the spot, Khema met him and along with Khema, he reached the hospital at 7.00 - 8.00 am where Mahender was admitted but Khema deposed that he went to Irwin Hospital after two hours and that Badri came at Irwin Hospital at 12.00 noon.
FIR No. 77/10 Page 15 of 25Thus, according to him, Badri did not meet him at the spot. Badri deposed that Khema had told him that Mahender was admitted in the hospital but if Khema had not met him at the spot, it is not acceptable that he came to know of the name of hospital from Khema. PW-1 deposed that his statement was recorded at the police station. Statements of Khema and Lalu were also recorded in his presence but Khema stated that IO recorded his statement and that of Badri and Lalu at the hospital. It is in evidence that neither Badri nor Khema intervened in the quarrel or tried to save Mahender who was their close relative. Neither of them accompanied Mahender to the hospital. No complaint was made to the police for three days. The record of Lok Nayak Hospital produced by PW-9 shows that Mahender was admitted in the hospital on 09.03.2010 at about 12.00 am with the alleged history of fall from the moving truck. No history of assault was given to the doctor for three days despite the fact that PW-3 had reached the hospital after two hours of the occurrence and PW-1 reached the hospital on the next day. The MLC of Mahender was prepared after three days on 12.03.2010 and on that day for the first time, Khema gave the alleged history of physical assault. Thus, PW-1 and PW-3 remained silent for three days. Their silence is un- explanable.
10. In the case of State of Rajasthan Vs. Magni Ram 2001 FIR No. 77/10 Page 16 of 25 (1) JCC (SC) 220, the eye witness who was accompanying the deceased, was found to be not truthful and his conduct during that period was quite unnatural. He not at all tried to save the deceased though he was healthier than the accused. The other witnesses also did not try to save the deceased and their conduct was also unnatural. The witnesses did not explain why they did not save the deceased. The Hon'ble Court held that whatever explanation given by the witnesses about their unnatural conduct appears to be an afterthought and dismissed the appeal filed by the State against the order of acquittal of the Hon'ble High Court. In the case of State of Punjab Vs. Sucha Singh 2003 II AD (SC) 472, deceased received 24 injuries, father remained mute spectator. The Hon'ble Court found that this conduct is unnatural and the presence of the witnesses at the place of occurrence to be improbable.
11. In the case of State of Rajasthan Vs. Bhanwar Singh 2004 Crl. LJ 4886, the widow of deceased categorically stated that she heard about the incident from some persons and sent for eye witnesses to go and find out the body of her husband. The Court held that it was quite unnatural for eye witnesses to remain silent after witnessing the assault and therefore the presence of eye witnesses at the alleged place of occurrence was rendered doubtful and the version given by the eye witnesses was held to FIR No. 77/10 Page 17 of 25 be improbable.
12. In another case i.e. Joydeb Das alias Jogi and another Vs. State of West Bengal 1999 Crl. LJ 1816, the allegations were that accused persons armed with "Nepala" and bombs assaulted deceased resulting into his death. Non-examination of independent witness was held to be fatal and the conduct of related witnesses not accompanying the deceased to the hospital was held to be unnatural. Similarly, in the case of Gurdip Singh Vs. State of Punjab 19 C.C. Cases 406 (HC), appellant was alleged to have murdered the deceased with Toka witnessed by two eye witnesses. No alarm was raised by the eye witnesses at the time of inflicting injuries. No information was given to anybody by the eye witnesses about the occurrence. No attempt was made to apprehend the accused. It was held that eye witnesses were the planted witnesses. There was also delay in lodging the FIR and in sending special report to Ilaqa Magistrate which was not explained by the prosecution. It was therefore held that evidence produced by the prosecution does not fully establish the case beyond doubt.
13. The aforesaid authorities are applicable to the facts and circumstances of the present case. Both the alleged eye witnesses namely Badri and Khema who claimed that they were FIR No. 77/10 Page 18 of 25 present at the spot at the time of incident, did not intervene in the quarrel and made no effort to save Mahender. Assuming that they got scared and Badri fled away from the spot to save himself, there is no reason why he and Khema did not report the matter to the police. It is also not explained why neither of them accompanied injured to the hospital despite being close relatives and rather preferred to send Mahender to hospital with unknown persons. The conduct of PW-1 and PW-3 is not natural and highly improbable which renders their presence at the spot doubtful.
14. PW-1 has deposed that Kailash had also come with them in the truck to Gazi Pur Bhains Mandi for the sale of buffaloes. Kailash has neither been cited nor examined by the prosecution. PW-3 Khema stated in cross examination that one labourer Haider and Bhagwana accompanied Mahender to the hospital in the van but they have also not been examined by the prosecution. The incident took place in the Mandi where lot of public persons are expected to be present but they were joined in the investigation. In cross examination, SI Raj Kumar states that he did not enquire from Badri as to who brought injured Mahender to the hospital and by which conveyance. He did not enquire from the doctor as to who got Mahender admitted in the hospital. Thus, prosecution is guilty of not producing independent witnesses before the court, though available. In the case of Dalbir & Ors.
FIR No. 77/10 Page 19 of 25Vs. State of Haryana 1999 (2) C.C. Cases HC 477, as per prosecution version given in the FIR, persons of neighourhood had also collected at the scene of occurrence before assailants left the place of occurrence after committing the crime but no effort was made to ascertain their identity or to examine any one from public in court. Two witnesses were related to the deceased. It was held that prosecution failed in its duty to join such persons who had collected at the scene of occurrence and record their statements so that they could be examined in court as eye witnesses and therefore doubt arises as to the participation of accused/appellant as well in the commission of crime alleged against them and thus benefit of doubt was given to accused.
15. In the case of Satish Kumar Vs. State 1995 JCC 592, in a murder case, the eye witness claimed that he had seen the appellant stabbing the deceased but his name was not mentioned in the FIR as eye witness. The court therefore held that his evidence cannot have any credibility.
16. In the case of Mathura Yadav @ Mathura Mahato & Ors. Vs. State of Bihar (2002) 6 Supreme Court Cases 451, on an appreciation of evidence, the Hon'ble Court found deficiencies and contradictions in the prosecution evidence. Only those PWs who were related to the deceased were examined as eye FIR No. 77/10 Page 20 of 25 witnesses and despite independent eye witnesses being available, they were not examined by the prosecution, though according to the evidence, they had arrived immediately when the attack took place and as such their testimony was useful for corroborating the testimony of other eyewitnesses. In view of the totality of facts and circumstances, the court held that it was unsafe to place reliance on prosecution evidence.
17. Similarly, in the case of State (Delhi Administration) Vs. Balbir Chand & Ors. (1991) JCC 56, so many public witnesses were easily available but they were not examined. Only three witnesses who were the relatives or friends of the deceased were examined. Their evidence was full of self contradictions and omissions. Medical evidence was also not supporting the prosecution case. It was therefore held that trial court rightly acquitted the accused persons.
18. Prosecution is also relying on the recovery of iron rods at the instance of both the accused from bushes near Bhains Mandi, Gazi Pur after more than two months. Admittedly, there is no public witness of recovery. PW-12 Constable Mahender states in cross examination that IO did not join any public witness at the time of recovery. SI Raj Kumar (PW-15) stated that he had requested some public persons to join the investigation at the time FIR No. 77/10 Page 21 of 25 of recovery of iron rod but none agreed and no action seems to have been taken against those persons. In the case of Harish Chander @ Billa Vs. State, 1995 (2) C.C. Cases 503 (HC), it has been held by the Division Bench of Delhi High Court that the discovery under Section 27 of the Indian Evidence Act in the presence of subordinate police officers when the Investigating Officer is taking his subordinate Constable as a witness for the incriminating discovery then the same becomes very doubtful. It may be seen in the present case that the attesting witness to the recovery memos Exbt. PW-12/E and Exbt. PW-12/F is Constable Mahender while SI Raj Kumar himself was posted in the same police station.
19. Similarly, in the case of Satish Kumar Vs. State 1996 Crl. LJ 265, police had made recovery of blood stained weapon of offence at the instance of accused. The court found that no effort was made by the IO to join any independent witness at the time of alleged recovery. The evidence of recovery was held suspicious. In Para 33 of the judgment, the Hon'ble Court held that it is not understood how this basic principle of investigation has been lost sight of by the Investigating officer that at the time of interrogating the accused and for making the recoveries, which are admissible under Section 27 of the Evidence Act, a sincere effort must be made by the Investigating Officer to join independent public FIR No. 77/10 Page 22 of 25 witnesses. It is not the case that no such public witnesses were available or any sincere effort was made in joining the public witnesses but without success.
20. Applying the principles laid down in the afore-cited judgments, I am of the opinion that in the present case also, no sincere effort was made by the IO to join any independent public person either as an attesting witness to the disclosure statement or at the time of recovery and therefore the recovery made at the instance of accused is rendered doubtful. There is also no evidence that any blood was found on the recovered iron rods. Moreover, the iron rods were not shown to the doctor who conducted the postmortem to elicit his opinion that the injury found on the body of the deceased could be inflicted with the said weapon. Prosecution has not been able to explain or got over this deficiency. The Supreme Court has in Ishwar Singh Vs. State of Uttar Pradesh, AIR 1976 SC 2423 dealt with a similar situation and held that the failure of the prosecution to connect the alleged weapon of offence with the injuries that caused the death, was a serious discrepancy in the prosecution case. The court observed:
"It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all FIR No. 77/10 Page 23 of 25 or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice."
21. Dr. Mahesh Maheshwari (PW-16) who conducted the postmortem admits in cross examination that head injury mentioned in the postmortem report could have been caused by fall at a blunt surface from a height. The other doctors namely Dr. Tarun Kumar Gupta (PW-5) and Dr. P.N. Pandey (PW-8) who had treated Mahender have also admitted that head injury found on the person of Mahender was possible due to fall from a height. The said opinion given by the doctors coupled with the fact that first information regarding the alleged history at the hospital was not assault but fall from moving truck, makes the defence of the accused that Mahender had fallen from the truck while unloading the buffaloes looks more probable.
22. The incident took place on the night of 08.03.2010 but FIR was registered on 12.03.2010 i.e. after four days. The unexplained delay of four days in lodging the FIR casts serious doubt on the truthfulness of prosecution version. The mere delay in lodging the FIR may not prove fatal in all case but in the circumstances of the present case, certainly, it is one of the factors which corrodes the credibility of prosecution version which FIR No. 77/10 Page 24 of 25 has not been found to be trustworthy.
23. In view of my aforesaid discussion, I find that the very genesis of the incident and the manner in which it happened is suspect. The testimonies of PW-1 and PW-3 appear to be incredible, suspicious and untrustworthy. The benefit therefore must go to accused as prosecution has failed to prove its case with the clinching evidence against them. Accused are therefore acquitted. Their bail bonds are cancelled. Sureties are discharged. Documents of sureties if any be released after cancellation of endorsement. However, accused are directed to furnish bonds in the sum of Rs. 20,000/- each with one surety of the like amount each under Section 437-A Cr. PC for a period of six months. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 12.04.2012.
FIR No. 77/10 Page 25 of 25