Delhi District Court
State vs Jai Parkash on 21 September, 2023
IN THE COURT OF SH. JITENDER: THEN METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI
AND
PRESENTLY, SPECIAL RAILWAY MAGISTRATE,
CENTRAL, OLD DELHI RAILWAY STATION
STATE VS. JAI PRAKASH & ORS
FIR Number : 43/2010.
Under Section : 452/506/323/325 IPC.
Police Station : Bh. Dairy.
JUDGMENT
a) Registration no. of case : 5282095/2016
b) Name & address of the : Ramgati
complainant S/o Sh. Mulan
R/o D Block, Gali No. 10/3
Mukundpur Part I, Delhi
c) Name & address of : 1. Jai Prakash
accused S/o Sh. Ram Singhasan
R/o D Block, Gali No. 10/3
Mukundpur Part I, Delhi
2. Bhopal Pathak
S/o Sh. Ramesh Pathak
R/o D Block, Gali No. 10/3
Mukundpur Part I, Delhi
FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 1 of 25
3. Gopal Pathak
S/o Sh. Ramesh Pathak
R/o D Block, Gali No. 10/3
Mukundpur Part I, Delhi
d) Date of Commission of : 26.03.2010
offence
e) Offence complained of : 323/325/450/506/34 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Convicted
Date of Institution : 31.05.2010
Judgment Pronounced on : 21.09.2023
JUDGMENT
Before embarking upon the discussion in the present case, it is necessary to state that the final arguments in the present case were heard by the undersigned as MM01, North and in view of para no. 2 of the transfer order no. 62466279/DHC/Gaz/G7/VI.E.2(a)/2023 dated 29.08.2023 of Hon'ble Delhi High Court, the judgment is now being pronounced in the present transferee Court.
Brief facts:
1. The case of the prosecution is that on 26/03/2010 at about 10:00 PM at 10/3, Dblock, Mukundpur, Part 1, Delhi, FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 2 of 25 (hereinafter the "spot" or "the place of accident") accused persons in furtherance of their common intention committed house trespass by entering into the house of the complainant and caused grievous hurt and hurt to the complainant, his son and daughter in law. The present FIR No. 43/2010, was registered under section 325/323/352/452/506/34 Indian Penal Code (hereinafter "IPC").
2. On the basis of the investigation carried out by the police, charge sheet was filed under section 173 Cr.P.C in the court and charge sheet and other relevant document were supply to the accused in compliance of section 207 Cr.P.C to the satisfaction of the accused.
3. Charge for committing the offence punishable under section 325/323/452/506/34 IPC was framed upon the accused persons to which accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for PE.
Prosecution Evidence
4. To prove its case, prosecution has examined as many as 11 witnesses. All the witnesses were duly examined and cross examined.FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 3 of 25
Statement of accused
5. After recording the prosecution evidence, all the incriminating facts and evidence were put before the accused persons and they submitted that they are innocent and falsely implicated in the present case by the complainant. They further pleaded that, all the witnesses are interested witnesses. They also submitted that, they were not present on the spot and on the date of incident. Lastly, they said that they do not want to lead any evidence.
Issues to be decided
6. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrived at a conclusion:
(1). Whether the accused persons has committed the offence causing the grievous injuries to the complainant punishable under section 325 IPC?
(2). Whether accused persons causes bodily pain, disease or infirmity to complainant punishable under section 323 IPC?
(3). Whether the accused persons commits housetrespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint punishable under section 452 IPC?FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 4 of 25
(4). Whether the accused persons committed the offence of criminal intimidation punishable under section 506 IPC?
Observations
7. "Whether accused persons has committed the offence causing grievous under section 325 IPC?"
Let us peruse the provision of 325 IPC, which is as under : Section 325: Punishment for voluntarily causing grievous hurt: Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Essentials Ingredients of Section 325 IPC (1) Accused voluntarily caused hurt.
(2) Hurt was grievous within the meaning of Sec. 320 I.P.C.
Section 320: Grievous hurt:The following kinds of hurt only are designated as "grievous":--
First-- Emasculation.
Secondly --Permanent privation of the sight of either eye.
Thirdly -- Permanent privation of the hearing of either ear, Fourthly --Privation of any member or joint. Fifthly -- Destruction or permanent impairing of the powers of any member or joint.
Sixthly -- Permanent disfiguration of the head or face. Seventhly --Fracture or dislocation of a bone or tooth. Eighthly --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 5 of 25 in severe bodily pain, or unable to follow his ordinary pursuits.
8. "Whether accused persons causes bodily pain, disease or infirmity to husband and daughter of complainant punishable under section 323 IPC?"
Let us peruse the provision of section 323 IPC, which is as under : Section 323: Punishment for voluntarily causing hurt:
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 319: Hurt:Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
The essential ingredients to attract Section 323 IPC are:
(1). Accused has caused hurt to the victim.
(2). The hurt caused was voluntary in nature.
(3). The same offence is not covered under Section 334 of the IPC.
9. "Whether the accused persons commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 6 of 25 person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint punishable under section 452 IPC?"
Let us peruse the provision of section 452 IPC, which is as under : Section 452: Housetrespass after preparation for hurt, assault or wrongful restraint: Whoever commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful re straint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 442: House trespass: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house trespass". Explanation: The introduction of any part of the criminal trespasser's body is entering sufficient to constitute housetrespass.
The essential ingredients of housetrespass
(a) the accused must commit criminaltrespass that by unlawfully entering into or
(b) by remaining on the property unlawfully after initial lawful entry;
(c) that such trespass was in respect of a building, tent or vessel; and FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 7 of 25
(d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property.
10. "Whether the accused persons committed the offence of criminal intimidation punishable under section 506 IPC?"
Let us peruse the provision of section 506 IPC, which is as under : Section 506: Punishment for criminal intimidation:
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Findings
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 8 of 25(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
Establishment of identity of accused
12. The case of the prosecution is that on 26/03/2010 at about 10:00 PM at 10/3, Dblock, Mukundpur, Part 1, Delhi, accused persons in furtherance of their common intention committed house trespass by entering into the house of the complainant and caused grievous hurt and hurt to the complainant, his son and daughter in law. For the purpose to establish the identity of the accused persons, prosecution has examined PW1, PW2, and PW3 as the eye witnesses. PW2 deposed in her testimony that, "on the day of incident at about 10 PM, I was sitting near my house along with Vyas and in the meanwhile the accused persons Jai Prakash, Bhopal and Gopal who are present in the court today came there carrying dandas along with Bhagirath (Juvenile) who was carrying a phawra and started to abuse Vyas. I objected due to ehich the accused persons also started to abused me and when I protested accused Bhagirathi attacked me FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 9 of 25 on my head and left hand with phawra due to which I sustained injuries on my person. To protect myself I rushed inside my house and accused persons also chaesd me and entered inside my house and again started to beat me. To protect me my son Nirgun and his wife Sudha came there, then the accused Jai Prakash attacked Sudha with danda and accused Bhopal gave beatings to my son Nirgun and accused Gopal attacked my son. We raised the noise and on hearing the noise the accused person fled away from there while threatening us to kill us if we lodged the complaint to police". PW2 was cross examined by the Ld. Counsel for the accused persons and he was asked about the Vyas who was present at the spot at the time of incident and PW2 deposed that, "statement of Vyas was not recorded in my presence as he had fled away from the spot". Nothing exculpatory fact was a rollout in the testimony of the PW2 during his cross examination. Further, PW1 was also examined by the prosecution to concrete the identity of the accused person and he deposed that, "on 26.03.2010 at about 10 PM my father entered in the house and he was crying and blood was oozing from his head and after him four accused, three of them are present in the court today, correctly identified, having dandas in their hands and accused Bhagirathi having spade (phawra) also entered in our house and started abusing. When I and my wife rescued my father and asked them why they were beating my father, then the accused persons started beating me and my wife Sudha. My wife got injuries on her FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 10 of 25 right hand and the accused persons had beaten me with fist, kicks and blows and dandas. The accused persons also threatened us to kill". This witness was also crossexamined by the Ld. counsel for the accused persons, however, no exculpatory fact arises from his cross examination. Furthermore, PW3 was examined by the prosecution and the witness deposed that, "in the month of March (the year and date of which I do not remember) the accused persons who are present in the court today gave beatings to my fatherinlaw and when we intervened the accused persons also gave beatings to me and my husband with danda and fawra. The accused persons beaten us after having entered over house. When we reached the accused person fled away from there while giving us threat to kill if we dared to lodge the complaint". PW3 was also crossexamined by the Ld. Counsel for the accused persons and again no exculpatory evidence or fact rollout in the testimony of the PW3.
13. After considering the statements of all the eyewitnesses, this court arrived at the conclusion that, the prosecution has been successfully establish the identity of the accused persons, as all the eyewitnesses deposed on the similar line that, on 26/03/2010 at about 10 PM all the accused persons entered in their house along with danda and fawra attacked on complaiant and his family member and all of them sustained injuries. Moreover, all the eyewitnesses identified the accused persons when they were examined in the court FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 11 of 25 and prosecution has left no deficiency regarding the identity of the accused.
Defences taken by the accused persons Interested witness
14. The accused has taken the defense that, all the eye witnesses are interested witness, as they are the complainant and the injured. As regards the contention that all the eyewitnesses are the complainant and relative and injured, it is by now wellsettled proposition that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. A witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused. However, the Hon'ble Supreme Court has held in Rajesh Yadav and Others etc. vs. State of U.P. in Criminal Appeal No. 339340of 2014 decided on 04/02/2022, that a related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 12 of 25 natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as relative or interested witness, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact.
The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 13 of 25 attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
15. This court comes to the conclusion that PW1, PW2 and PW3 are the complainant and the relative of the complainant i.e. son and daughterinlaw of the complainant who are also injured in the present case but their evidence cannot be discarded solely on the ground of complainant and relative of the complainant and injured. From the above cited judgments, this court can form the opinion that a witness who is the relative/friend of the deceased/victim cannot be indeed interested or partisan witness because court finds no reason as to why these eyewitnesses falsely implicate an innocent person when they did not derive any benefit from getting him punished by the court. Further, PW1, PW2 and PW3 support the case of the prosecution throughout the trial and these prosecution witnesses were very well established the identity of the accused persons as well. Moreover, no contradiction or irregularity finds in the testimonies of these witnesses of the prosecution. Finally, this court finds no reason to discard the testimonies of PW1, PW2 and PW3 solely on the ground that, they are the complainant and his relative and the injured as well.
Defense as to no other independent eyewitness FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 14 of 25
16. The accused persons has taken the defense that, as per the testimonies of the complainant, there were many public persons were present at the spot but, IO has not recorded the statement of any of the person present at the spot nor any of the person cited as the prosecution witness. Further,the accused has raised the objection that, the IO did not serve the notice under section 160 Cr.P.C. PW1 has deposed in his cross examination that, "it is correct that many people of the locality were gathered at the place of occurrence. IO did not record the statement of public witness in my presence". Additionally PW2 deposed in his cross examination that, "statement of Vyas was not recorded in my presence as he had fled away from the spot". However, in State of State of A.P. vs. S.Rayappa & Ors. (2006) (4) SCC 512, the Supreme Court has rejected a similar argument of interested witnesses being produced and no independent witness being examined by the prosecution, by holding as under
"7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 15 of 25 requirement is that the testimony of the relative witnesses should be examined cautiously."
17. This court is concurred with the view laid down by the Hon'ble Apex court in State of State of A.P. vs. S.Rayappa & Ors. (2006) (4) SCC 512, that in today's scenario public person avoiding themselves to indulge in criminal proceeding because it's lengthy trial and they suffered a lot during the same. In that case, it became very difficult for the investigating agency and for the prosecution to cite and examine the public or independent witness in a criminal trial. However, there is no straight jacket formula to reject the testimony of the police witnesses and complainant in the absence of any independent witness despite that the testimonies of these witnesses corroborate with the other oral and documentary evidences.
Faulty Investigation
18. Ld. Counsel for the accused person has taken the defense that, it is roll out in the testimony of the prosecution witness that, Vyas was present at the spot despite that neither his statement was recorded by the IO nor he was cited as a witness in the list of witness nor the investigating agency makes any sincere effort to trace out him and produce before the court for the examination. As a general principle, it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 16 of 25 brought about or serious prejudice is caused to the accused. (Union of India vs. Prakash P. Hinduja AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the I.O cannot render the case of the prosecution doubtful. (Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If direct evidence is credible, failure, defect or negligence in investigation cannot adversely affect the prosecution case, though the court should be circumspect in evaluating the evidence (Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999 SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P. AIR 2004 SC 2329).
19. As far as the defective and illegal investigation is concerned, Apex Court held that If investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of the impact of the faulty investigation; otherwise criminal trial will descend to the I.O ruling the roost. Yet if the court is convinced that the evidence of eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case is suspicious. (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the I.O whose investigation was defective by design.
FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 17 of 25(Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial. (Paramjit Singh vs. State of Punjab AIR 2008 SC 441).
20. The fact that the Vyas was present at the spot at the relevant time despite that he was never produce by the prosecution before the court is lapse on the part of the investigating agency. However, not citing and producing the Vyas before the court cast a shadow of doubt upon the manner in which the investigation was carried by the police in the present case. This court concurred with the above cited judgment and arrived at the conclusion that lapses in the investigation cannot caste any doubt upon the case of the prosecution unless it cause the miscarriage of justice. Form the above reasoning, this court finds that, mere non production of one of the eye witness of the incident cannot discarded the entire case of the prosecution where the testimonies of the other eye witnesses corroborated the version of the prosecution.
Plea of alibi
21. The plea of alibi is a crucial defense in criminal cases, which can help an accused person establish their innocence. It is recognized under Section 11 of the Indian Evidence Act, 1872, and can be raised at the earliest stage of the case. When the accused took the plea of alibi the burden of proof lies on him under section 103 of FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 18 of 25 Indian Evidence Act. The burden of proof lies on the accused to establish their presence elsewhere at the time of the commission of the alleged offence.
22. In the present case, the accused persons took the defense in their statement recorded U/s 313 Cr.P.C that, at the time of incident they were not present at scene of crime. It means they were somewhere else at the relevant time and taken the defense of plea of alibi. However, the accused persons has produced DW1 in their defense, but the credibility of DW1 was not gauged by the state in cross examination. Additionally, DW1 failed to concrete the presence of the accused persons somewhere else during his examination in chief. Amid his examination, court asked the question to the DW1, "Where were they at the time of incident"? DW1 replied tthat, "Ghar per honge ya jahan bhi honge". The reply of the DW1 was not seemed confident and failed to justify the presence of the accused far from the place of the incident. No credible or cogent evidence or defence witness was produce or examine by the accused persons for proving the same.
Section 11. When facts not otherwise relevant become relevant--Facts not otherwise relevant are relevant-- (1). if they are inconsistent with any fact in issue or relevant fact;
(2). if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable.
FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 19 of 25In Jitender Kumar v. State of Haryana (2012) 6 SCC 204, Hon'ble Supreme Court of India laid down that:
"The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives."
23. Burden U/s 103 Evidence Act: Section 103 provides for proof of some one particular fact. It is an exception to the general principle laid down in Section 101 of the Evidence Act. In law the particular fact is termed as alibi. The law requires that a party can take the plea of alibi if he wants to take any such advantage. Plea of alibi taken by the accused, it is he who has to prove it.
Section 103: Burden of proof as to particular fact:The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Burden U/s 106 Evidence Act:
24. In final argument the accused persons taken the plea of alibi and deposed that they were not present at spot at the relevant time. Prosecution on the other hand, establish their presence by examining the independent witnesses and further question that, the FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 20 of 25 fact that they were not present at spot and present somewhere else, is within the special knowledge of the accused persons and onus of proof is on the accused persons to relieve it's burden U/S 106 of Indian Evidence Act. In response of the same, there were no explanation was advanced by the accused persons. The provision of section 106 of Indian Evidence Act laid down as:
Section 106 Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In Kalu @ Laxminarayan v. State of Madhya Pradesh Criminal Appeal No. 1677 of 2010 decided on November 07, 2019, the Hon'ble Supreme Court of India observed that:
Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove.
In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681,the Hon'ble Supreme Court of India laid down that:
Although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 21 of 25 accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events.
25. This court arrive at a conclusion that, when the accused has taken the plea of alibi, he is under the burden to prove his presence somewhere else by some credible and cogent evidence or by examine any witness who can prove the presence of the accused somewhere else from the spot of the incident. As earlier discussed, the accused persons produced DW1 in their defense, however, this court find this witness unworthy of trust. Accordingly, accused persons had taken the defense of the plea of alibi but, they failed to prove the same. On a consideration of the totality of factors pleaded by the accused persons in their defense, it becomes clear that the accused persons have merely paid lip service to their defense and has not led any cogent evidence to establish their presence far from the place of incident.
Circumstantial evidence
26. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 22 of 25 face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused. In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) 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':
(ii) 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.
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) 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 probably the act must have been done by the accused".
CONCLUSION
27. The accused has taken three main defenses, all the eye FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 23 of 25 witnesses are the interested witnesses as all of them are the injured and therefore their testimonies cannot be considered as reliable. However, this court finds that there is no embargo to rely upon the evidence advance by a witness who is even an interested witness and was present at the spot at the time of incident. Secondly, the defense was taken by the accused persons that, they were not present at the spot at the relevant time and taken the plea of alibi. However, the accused has not advance any firm evidence as to their presence somewhere else and failed to prove this fact and the onus is upon them.
28. This court finds that, the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witnesses of the prosecution have been able to built up a continuous link.
FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 24 of 2529. In view of the above discussions, the accused Jai Prakash, Bhopal and Gopal hereby convicted for the charges under Section 325/323/452/506/34 Indian Penal Code.
30. Convicts are directed to file an affidavit of their income and assets in Annexure A format, in compliance of the directions contained in case titled "Karan v. State NCT of Delhi"; CRL.A. 352/2020 of the Hon'ble Delhi High Court, within 10 days.
31. State is also directed to disclose the expenses incurred in the prosecution on an affidavit along with the supporting documents within 30 days.
Let the matter now be heard on the point of sentence. Copy of judgment be given to the convict free of cost.
Dictated & Announced in Open Court.
Digitally signed by JITENDERJITENDER Date:
2023.09.22 15:36:10 +0530(Jitender) Special Railway Magistrate, Central, Old Delhi Railway station Then MM01/North, Rohini, Delhi 21.09.2023 FIR No. 43/2010 PS Bh Dairy State Vs. Jai Prakash & Ors Page 25 of 25