Delhi District Court
State vs Anil Kumar Etc. ("Acquitted") Page 1 Of ... on 12 August, 2013
FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.: 301/97 PS: DBG Road U/s : 186/332/323/353/309 IPC Unique ID No.: 02401R1326132008 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 161/2
(b) Name of complainant : Constable Vargish M.V. No.474/C, PS DBG Road, Delhi.
(c) Date of commission of offence : 02.07.1997
(d) Name of the accused : 1) Anil Kumar
S/o Shri Chander Bhan,
R/o 10281, Gali No.7,
Pathshalawali, Manak pura,
Delhi.
(Since expired)
2) Chander Bhan
S/o Sh. Sher Singh,
R/o 10281, Gali No.7,
Pathshalawali, Manak pura,
Delhi.
(Since expired)
3) Nand Kishore @ Gulab Chand
S/o Munni Lal,
R/o 10295, Gali No.7,
Pathshalawali, Manakpura, Delhi.
State V/s Anil Kumar etc. ("Acquitted") Page 1 of 19
FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013
(e) Offence complained of : U/s :186/323/332/353/309/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 01.08.2013
(h) Final Order : Acquitted
(i) Date of such order : 12.08.2013
______________________________________________________________ A. BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case as borne out from the record are that on 02.07.1997, on receipt of DD no. 28, SI Udal Singh alongwith ASI Gurjeet Singh, HC Rajender Singh and Ct. Ram Dutta reached at the spot i.e. in front of house no. 10294, Gali Pathshalawali, East Park Road where complainant Ct. Vergise alongwith other police officials namely HC Kamal Singh and Ct.
Rishipal including some public persons namely Anil Kumar, Gulab Chand @ Nand Kishore and Chandrabhan (accused persons herein) were present. Constable Vargese was in injured condition, he made his statement that during patrolling in the area, they noticed accused persons beating each other. On their intervention, accused persons also gave beatings to police officials due to which constable Vergese got injured and his uniform was also torn by accused Chandrabhan who also inflicted injury on complainant Constable Vergese by one empty bottle. In the meantime, PCR van also reached at the spot and injured persons were taken to hospital and were got medically examined. Accused persons were arrested at the spot. Site plan was prepared, FIR got recorded and after completion of investigation, all the three accused State V/s Anil Kumar etc. ("Acquitted") Page 2 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 persons stood chargesheeted for offences punishable U/s 186/323/332/353/309 IPC.
2. After filing of the charge sheet in the case, all the three accused persons were supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge vide order dated 29.08.2001, charge U/s 309 IPC was framed against accused Chander Bhan whereas charge u/s 186/323/332/353/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
3. During trial of the case, accused persons namely Chander Bhan and Anil Kumar expired and proceedings against them stood abated.
4. In order to bring home the guilt of accused, prosecution examined ten witnesses, whereafter the PE in the matter was closed and statement of accused namely Nand Kishore U/s 313 Cr.P.C was recorded, wherein he pleaded innocence and claimed that he has been falsely implicated in this case. However, he did not lead any evidence in his defense.
Evidence Held:
5. A total of ten witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
6. PW1 HC Satyawan was the Duty Officer who recorded the FIR in the State V/s Anil Kumar etc. ("Acquitted") Page 3 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 matter. He proved the copy of FIR as Ex.PW1/A. This witness was not at all cross examined despite being afforded opportunity in this regard.
7. PW2 Constable Vergese, complainant herein, reiterated the contents of his complaint Ex.PW2/A wherein he got recorded that on 02.07.1997, he alongwith HC Kamal Singh and Constable Rishi Pal were on patrolling duty at East Park Road. On receipt of some information regarding quarrel in the Pathshalawali gali, they reached there and found accused Anil Kumar with some other persons were quarreling with one rickshaw puller. On their intervention, accused Anil and other persons started beating them. His uniform got torn. At the same time, father of accused Anil Kumar namely Chander Bhan came with a bottle of liquor and started beating and he was hit on his head and body. Accused Chander Bhan also hit the said bottle in his own stomach. He was taken to JPN Hospital by PCR van. His torn uniform was taken into police possession vide memo Ex.PW2/B. This witness correctly identified accused persons as well as case property, before the Court.
In his cross examination, he stated that quarrel was going on between accused Anil with two to three more persons and Noori Prasad. They were having dandas. His name plate was affixed on his uniform however the shirt which was produced during evidence, did not have any name plate on it. Accused Anil and Nand Kishore torn his shirt. Accused Chander Bhan hit him State V/s Anil Kumar etc. ("Acquitted") Page 4 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 with bottle on his chest and head. Blood oozed out from his nose. He was taken to hospital at about 09:30/10:00 PM. He denied the suggestion that no quarrel took place between accused and police officials. He denied the suggestion that all the police officials were taking liquor in the factory of Chander Bhan and asked Chander Bhan to fetch Rs.200/ from a rehri standing nearby and he gave only Rs.100/. He denied the suggestion that he inflicted broken bottle blow to Chander Bhan or that Chander Bhan did not give him bottle blow. He denied the suggestion that accused were falsely implicated in the case as brother of accused Chander Bhan sent telegram to DCP and Police Commissioner.
8. PW3 Constable Rishi Pal deposed on the similar lines as of PW3 Constable Rishi Pal. He further deposed that accused Anil was arrested and his personal search was conducted vide memo Ex.PW3/A. This witness correctly identified the accused as well as case property before the Court.
During his cross examination, he stated that he was on duty for patrolling with HC Kamal Singh and Constable Verges. They all were having dandas and diaries in their hands. The said information regarding quarrel was received from some public persons. When they reached at the spot, one Noori Prasad was found caught hold and was being beaten up by accused persons. Accused Chander Bhan also sustained injuries. He denied rest of the suggestions being formal in nature as put to PW2.
State V/s Anil Kumar etc. ("Acquitted") Page 5 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013
9. PW4 HC Kamal Singh also deposed on the similar lines as of PW2 and PW3 being associated with him at the spot.
In his cross examination, he stated that at that time, he was not having any danda but other police officials were having danda and were in uniform having their respective name plates. He did not know the cause of quarrel between accused persons and Noori Prasad. He stated that public persons were present at the spot to whom IO requested to join the proceedings. They did not call for any help from the police station. However police arrived at the spot immediately. He could not tell as to whether blood was present on the clothes of injured Chander Bhan or not. Accused Chander Bhan hit Constable Verges in his presence with a bottle and thereafter Chander Bhan inflicted injuries on himself with the same bottle after breaking it. Writing work was done at the spot. They left the spot at about 01:30 AM in the night of same day. The distance between the spot and police station was about one and half kilometers. There was no name plate on the shirt produced from the malkhana. He denied the suggestion that no quarrel took place and accused persons have been falsely implicated in the present case. This witness denied the rest of the suggestions put to him being formal in nature.
10. PW5 HC Ram Dutt deposed that on 02.07.1997, on receipt of DD no. 28, he alongwith SI Udal Singh, ASI Gurjeet and HC Rajendra reached at the spot where they met Chander Bhan, Nuri Prasad, Constable Vergish and Constable Rishipal in injured condition. Accused Anil was in the custody of State V/s Anil Kumar etc. ("Acquitted") Page 6 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 HC Kamal Singh. Chander Bhan was sent for medical examination through HC Rajendra in Hindu Rao Hospital. All other persons were medically examined in JPN Hospital. Statement Ex.PW2/A of Constable Vergis was recorded by SI Udal Singh who also prepared rukka and got the FIR registered through him. This witness correctly identified the accused Anil before the Court.
In his cross examination, he stated that they all came on foot, however he did not furnish the exact time thereof. On their arrival, quarrel had already been stopped/over and no incident had happened in his presence. There were shops and houses near the place of incident. He went to PS and returned back to the spot after registration of FIR at about 12:30 AM. He denied the suggestion that he deposed falsely to implicate the accused.
11. PW6 Inspector Ram Chander Dahiya deposed that on 12.04.1998, investigation of present case was marked to him. He received complaint u/s 195 Cr.P.C. Ex.PW6/A from DCP, Central District namely Sh. Ajay Kashyap with list of witnesses. He correctly identified the signature of Sh. Ajay Kashyap on Ex.PW6/A. He also took opinion on the MLC.
This witness was not at all cross examined on behalf of accused despite being accorded opportunity to that effect.
12. PW7 Sh. Amrish Tyagi was the public witness who deposed on the lines of prosecution story. He further deposed that on 02.07.1997, he was State V/s Anil Kumar etc. ("Acquitted") Page 7 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 running a dhaba at Gaushala Road, DCM shop no.10084. He was coming back to his shop from his friend's house and when he was present at gali pathshala he saw that some people were beating a policeman. He tried to save the said policeman. In the meantime, a crowd of people had gathered at the spot. Accused Chander Bhan broke a bottle and hit the policeman on his chest and also torn the uniform of said policeman. Accused Chander Bhan alongwith four to five persons started beating the said policeman with sticks. At that moment, accused Chander Bhan hit himself on his stomach with a broken bottle and said that " I will teach you how duty is done". In the meantime, police reached at the spot and arrested accused Chander Bhan and Anil. This witness correctly identified both the aforesaid accused persons before the Court.
In his cross examination, he stated that he neither resided nor was carrying out any business at the spot of incident. He denied the suggestion that he did not know any person who normally resides or carries out business at the spot of incident. He stood for about ten to fifteen minutes at the spot of incident. He did not know the names of policemen who came to the spot. He denied the suggestion that accused Anil was not present at the spot nor he had seen him there. However, he admitted that accused Nand Kishore was not present at the spot as he had not seen him there. He further stated that he had seen Nand Kishore first time in the Court itself. His statement was recorded at police station after one or two days of the incident. He was called at the police station for the said purpose as his shop was opposite to police post. He denied State V/s Anil Kumar etc. ("Acquitted") Page 8 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 the suggestion that he was not present at the spot and police had called him and made him a witness. He denied the suggestion that he had deposed in other cases also.
13. PW8 Sh. B.S. Bhati, Medical Record Clerk, LNJP Hospital deposed that on the instructions of Medical Superintendent, he appeared before the Court. He proved MLC of injured Verghese as Ex.PW8/A by identifying the signatures of examining doctors on the said MLC. He also proved MLC Ex.PW8/B of injured Rishi Pal, MLC Ex.PW8/C of injured Niri Prasad as also MLC Ex.PW8/D of injured Anil Kumar in the aforesaid fashion.
In his cross examination, he stated that original MLCs were filed on judicial record, however relevant records regarding copies thereof had already been weeded out as the same pertained to more than 10 years old. He had no knowledge regarding the facts of the present case.
14. PW9 ASI Rajinder Singh deposed that on 02.07.1997 on receipt of DD no.28, he accompanied SI Udal Singh to the spot and took injured Chander Bhan to Hind Rao Hospital and got him admitted vide MLC No.9547.
This witness was not cross examined on behalf of accused despite being afforded opportunity to this regard.
15. PW10 Retired SI Udal Singh deposed that on 02.07.1997, on receipt of DD no. 28 at PP Shidipura, he alogwith ASI Gurjeet Singh, HC Rajinder and State V/s Anil Kumar etc. ("Acquitted") Page 9 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 Ct. Randutt went to gali Pathshalawali, Manakpura, East Park Road, Delhi where one injured Chander Bhan was found who was sent to Hindu Rao Hospital through HC Rajinder Singh. Injured constable M.V. Verghese and Constable Rishi Pal were present at the spot alongwith HC Kamal Singh. He recorded statement of M.V. Verghese and prepared rukka Ex.PW10/A and got the FIR registered through Constable Ram Dutt. He prepared site plan Ex.PW10/B. He got injured Anil Kumar, Constable M.V. Verghese, Constable Rishi Pal and Sh. Niri Prasad medically examined vide memos Ex.PW10/C, Ex.PW10/D, Ex.PW10/E and Ex.PW10/F respectively. He recorded the statements of witnesses and seized the uniform of Constable Verghese vide memo Ex.PW2/B. He also seized the pieces of broken bottle vide Ex.PW4/A. On 03.07.1997, he arrested accused Anil Kumar and took his personal search vide memo Ex.PW3/A. He also arrested accused Nand Kishore and took his personal search vide memo Ex.PW10/G. On 17.07.1997, he arrested accused Chander Bhan and took his personal serach vide memo Ex.PW10/H. This witness correctly identified accused Nand Kishore as well as case property before the Court.
In his cross examination, he stated that he had made Chander Bhan, Anil Kumar and Gulab Chand as accused. He admitted that he had not written the name of Nand Kishore in the original tehrir. He also admitted that name of Gulab Chand was also not written in the FIR. He also admitted that in complaint u/s 195 Cr.P.C., name of accused Gulab Chand was written and not of Nand Kishore. He volunteered that complainant Constable M.V. State V/s Anil Kumar etc. ("Acquitted") Page 10 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 Verghese had identified accused Nand Kishore who himself disclosed his name to Constable M.V. Verghese as Gulab Chand concealing the fact that Gulab Chand was the name of his brother and not of him. When he went to the spot, accused Nand Kishore had already run away. He also admitted that in the conviction slip of accused Nand Kishore, he had mentioned his age as about 17 years. He had not witnessed the incident in question. He had examined only one eye witness namely Sh. Amrish Tyagi during investigation of this case. He denied the suggestion that accused Nand Kishore was not involved in the commission of offence or that he has been falsely implicated in the present case.
16. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon :
17. I have heard the arguments advanced by Ld APP on behalf of State and Ld counsel Sh. Chanan Lal Adv on behalf of accused Nand Kishore. I have also carefully perused the material available on record. Arguments on application dt. 09.04.12 moved by accused Nand Kishore seeking his acquittal/discharge, have also been heard simultaneously on behalf of both the sides. The said application is also being disposed of by way of this judgment.
18. While opening the arguments, Ld APP submitted that all the material witnesses examined during trial, have fully supported the case of prosecution on all material points. Ld APP also referred to the testimonies of PW2 namely Ct. Vergis(complainant), PW3 Ct. Rishipal and PW4 HC Kamal Singh, in support of the said contention. She further argued that all the said State V/s Anil Kumar etc. ("Acquitted") Page 11 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 three police officials were manhandled by the accused when they tried to intervene during the on going quarrel between accused and one Niri Parsad. Ld APP further contended that there was no previous enmity between accused persons and the aforesaid three police officials and therefore, there is no possibility of any false implication in this case.
19. On the other hand, Ld defence counsel argued that the prosecution has miserably failed to prove its case against accused Nand Kishore beyond reasonable doubt. He argued that the star witness of prosecution namely Niri Parsad who was being allegedly beaten up by the accused and his associates, did not enter into the witness box during trial. He further referred to the testimony of PW7 namely Sh Amrish Tyagi in support of his contention that said witness has demolished the case of prosecution by admitting during his cross examination that accused Nand Kishore was not present at the spot at the time of alleged incident. Ld defence counsel submitted that Sh Amrish Tyagi is the prosecution witness who has not supported the case of prosecution on the point of involvement of accused Nand Kishore in the commission of alleged offences in this case. He further argued that the name of accused Nand Kishore does not find mention in the statement of Ct. Vergese recorded by police on 02.07.97 which led to the registration of FIR nor his name finds mention in the FIR Ex PW1/A. He also read out the statement of Ct. Vargese recorded on 02.07.97 as well as the contents of FIR wherein the name of Gulab Chand S/o Sh Muni Lal has been mentioned as one of the perpretors of the crime. Ld defence counsel argued that the State V/s Anil Kumar etc. ("Acquitted") Page 12 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 complainant and the other police officials deliberately and intentionally improved their version at the time of arrest of accused Nand Kishore by mentioning his name as Nand Kishore @ Gulab Chand S/o Sh Muni Lal. He also referred to the complaint U/s 195 Cr.PC Ex PW6/A wherein also, there is no mention of the name of Nand Kishore.
20. During the course of arguments, Ld defence counsel also placed on record photocopy of Voter I Card of accused Nand Kishore in support of his contention that Nand Kishore and Gulab Chand are two different persons and are real brothers residing in the same house. On the strength of the aforesaid submission, Ld defence counsel argued that reasonable doubt has been created in the case of prosecution qua accused Nand Kishore who is therefore, entitled to benefit of doubt.
21. Out of three accused persons who had been sent up to face trial, two accused namely Anil Kumar and Chander Bhan have already expired during trial and proceedings qua them already stood abated. That being so, no discussion whatsoever is being made qua the said two accused in the subsequent paras.
22. As is evident from the above discussion, the only role attributed to sole surviving accused namely Nand Kishore is that he also joined deceased accused namely Anil Kumar and Chander Bhan, in the commission of alleged offences. It is relevant to note that FIR in the present case was registered on the basis of statement Ex PW10/A of Ct. Vergies recorded by SI Udal Singh(PW10) wherein he levelled direct and specific allegations against State V/s Anil Kumar etc. ("Acquitted") Page 13 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 accused Anil Kumar S/o Sh Chander Bhan and his associate Gulab Chand S/o Sh. Muni Lal to be the persons who were having dispute with Niri Parsad and on his(Ct. Vergies) intervention, said to accused alongwith third accused namely Chander Bhan allegedly committed the offences qua police officials. Likewise, the names of accused Anil Kumar and Chander Bhan and Gulab Chand are mentioned in the FIR Ex PW1/A. Not only this, complaint U/s 195 Cr.PC Ex PW6/A is also filed against three persons namely Anil Kumar S/o Sh Chander Bhan, Gulab Chand S/o Sh Muni Lal, Chander Bhan S/o Sh Sher Singh. It is pertinent to mention here that the said complaint is dated 26.06.98 and the alleged incident is of 02.07.97. In other words, the complaint Ex PW6/A was filed before the Court after expiry of about one year from the date of alleged occurrence and till then, the stand of investigating agency was that the aforesaid three persons including Gulab Chand S/o Sh Muni Lal were involved in the commission of offences in the present case. In the charge sheet, the investigating agency mentioned the name of Nand Kishore @ Gulab Chand S/o Sh Muni Lal in column no. 4 thereof. However, it has no where been explained in the entire charge sheet as to how accused Gulab Chand is also known as Nand Kishore or that Nand Kishore and Gulab Chand is one & the same person having two names as stated above.
23. Be that as it may, the main controversy involved in the present case is regarding identity of the person who was allegedly involved in the commission of offences in this case. The entire burden was upon prosecution to prove during trial that it was Nand Kishore who was actually involved in State V/s Anil Kumar etc. ("Acquitted") Page 14 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 the commission of crime involved in this case. At this juncture, it would be appropriate to refer to the judgment reported at 1999(1) JCC(SC)97 in the matter titled as " State of Karnataka Vs. Satish" wherein it has been held that in a criminal case, the burden to prove the offence lies on the prosecution.
24. As already observed above, PW2, PW3, PW4 and PW7 are the star witnesses examined by prosecution during trial. Out of four aforesaid witnesses, three were allegedly obstructed in the discharge of their official duty and were allegedly prevented from discharging their duty while PW7 is the independent public witness in whose presence, the incident allegedly took place. Although, the prosecution also cited one Niri Parsad as prosecution witness in the list of witnesses, who was allegedly beaten up by the accused and his associate on which aforesaid three police officials (PW2 to PW4) had intervened but said Sh. Niri Parsad did not enter into witness box.
25. The complainant i.e PW2 namely Ct. Vergies nowhere claimed during his chief examination that accused Nand Kishore was also present at the place of occurrence or was involved in any manner, in the commission of offences. Even otherwise, the relevant part of his crossexamination wherein he deposed that accused Anil Kumar and Nand Kishore torn his shirt, does not find place in the statement Ex PW10/A made before the police.
26. The careful perusal of the testimony of complainant(PW2) further shows that the testimony of said witness is not worth reliance and cannot be said to be free from doubt. During his cross examination, the said witness claimed that blood had oozed out from his nose but could not tell as to State V/s Anil Kumar etc. ("Acquitted") Page 15 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 whether the drops of blood fell on his clothes or not. It is a matter of common knowledge that drops of blood fell down in case blood is oozed out from the nose of a person unless and until first aid is immediately done. In this case, it is nowhere the case of complainant that he received first aid immediately. PW2 admitted that his name plate was affixed on the dress at the time of alleged occurrence but no such name plate was found affixed on the shirt when produced during trial. No explanation could be furnished on the said aspect by the prosecution witnesses examined during trial.
27. Ld APP argued that all the star witnesses examined by prosecution during trial, have narrated the entire sequence of facts leading to the commission of offences and have also identified the accused persons including accused Nand Kishore during trial and therefore, prosecution should be taken to have proved its case beyond reasonable doubt. However, I do not agree with the said submission for the reason that no effort whatsoever is shown to have been made by investigating agency to collect the relevant documents in order to show that Gulab Chnd and Nand Kishore was one and the same person involved in the commission of offences in the present case. In fact, no such document has been filed alongwith the charge sheet or proved during trial. No doubt, PW3 and PW4 have claimed during their respective testimonies that Nand Kishore was involved in the commission of offences but their bald statements on the point of identity of accused, are not sufficient enough to arrive at the conclusion that it was Nand Kishore who was actually present at the spot and not Gulab Chand.
State V/s Anil Kumar etc. ("Acquitted") Page 16 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013
28. During the course of arguments, Ld defence counsel had placed on record attested copy of the Voter I Card of Nand Kishore, in support of his contention that Nand Kishore and Gulab Chand are two separate persons. Although, Ld APP submitted that said documents should not be taken into consideration as same have not been filed at the appropriate stage and have also not been proved in accordance with law but I do not agree with the said submission. It would be relevant to note that alongwith his application dt. 09.04.12 seeking acquittal/discharge, accused Nand Kishore had filed photocopy of his Voter I Card and the authenticity of said document has not been disputed by the investigating agency till date. No doubt, copies of Voter I Card have not been proved in accordance with law but still same can be considered by the Court to the extent of corroboration to the defence raised by accused Nand Kishore that Gulab Chand is entirely different person from him. The perusal of copy of Voter I Card of Gulab Chand reveals that he was aged about 23 years as on 01.01.08. The date of alleged occurrence is 02.07.97. In this manner, Gulab Chand was aged about 12 years as on the date of alleged occurrence. It seems that due to aforesaid reason, the investigating agency changed its stand by chargesheeting brother of Gulab Chand i.e Nand Kishore by showing him as Nand Kishore @ Gulab Chand and made him to stand trial in the present case.
29. Moreover, the entire case of prosecution stood demolished by the testimony of PW7 namely Sh Amrish Tyagi who is the only independent public witness witnessing the incident in question. The said witness State V/s Anil Kumar etc. ("Acquitted") Page 17 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 categorically admitted during his cross examination that accused Nand Kishore was not present at the spot. Although, Ld APP submitted that the said witness had been won over by the accused but there is nothing on record to draw such an inference. The entire testimony of PW7 goes to show that he has supported the prosecution story on all aspects except on the aspect of presence of accused Nand Kishore at the spot. Had he been won over by accused then he would not have supported the case of prosecution on other aspects also.
30. Out of aforesaid four star witnesses examined during trial, PW7 was the only independent public witness examined in this case. As already mentioned before, another public person namely Sh. Niri Parsad has not been produced during trial and rest of the three prosecution witnesses are noneelse but the police officials who were allegedly beaten up and are quite interested witnesses. In this backdrop, Court is of the view that independent corroboration was required to support the version given by police witnesses and to record the finding of guilt against accused Nand Kishore. It is well settled law that whenever two views are possible on the basis of material available on record then the view which is in favour of accused, should be adopted by the Court.
31. Furthermore, there is no material available on record which may prove that PW2 namely Ct. Vergies, PW3 namely Ct. Rishipal and PW4 namely HC Kamal Singh were actually on official duty at the time of alleged incident. State V/s Anil Kumar etc. ("Acquitted") Page 18 of 19 FIR No. 301/97: U/s 186/332/323/353/309 IPC: PS DBG Road DOD: 12.08.2013 For the purpose of proving the same, it was the duty of investigating officer to collect the relevant piece of evidence in the form of duty charter of said three police officials, relevant DD entry in Rojnamcha regarding their departure from concerned PS to the spot during the course of their official duties, etc. Unfortunately, same has not been done by the investigating officer for the reasons best known to him. In the absence of cogent and credible evidence being available on record in this regard, reasonable doubt is created in the prosecution story that the police officials were on official duty at the time of alleged incident and therefore, benefit of doubt should be given to the accused on this ground also.
32. In the light of aforesaid discussion, Court is of the view that prosecution has failed to establish the charges against accused Nand Kishore beyond reasonable doubt. Consequently, accused namely Nand Kishore stands acquitted after being given benefit of doubt. His personal bond stands cancelled. However, his surety bond shall remain in force for a period of six months in terms of Section 437A Cr.PC. Endorsement(s), if any, either on the documents of surety or of accused be cancelled forthwith. File be consigned to record room after compliance of necessary formalities.
Announced in the open court (Vidya Prakash)
on 12.08.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Anil Kumar etc. ("Acquitted") Page 19 of 19