Delhi District Court
State vs . Anil Kumar on 8 March, 2010
FIR No. 109/02
PS Lahori Gate
State Vs. Anil Kumar
U/s 279/337 IPC
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: NORTH06, DELHI
State Vs. Anil Kumar
FIR No. 109/02
PS Lahori Gate
U/s 279/337 IPC
Date of Institution of case : 08.07.2002
Date of Judgment : 08.03.2010
JUDGMENT:
a) Date of offence : 17.04.2002 b) Offence complained of : U/s 279/337 IPC c) Name of Accused, his : Anil Kumar, parentage & residence S/o Sh. Sukhram, R/o H. No. 477, 1 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC Gali No. 8A, Swatantar Nagar, Narela, Delhi110040 d) Plea of Accused : Plead not guilty e) Final order : Acquitted
BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 17.04.02 at about 6.30 pm at opposite shop of Sunder Dass, Naya Bazaar within the jurisdiction of PS Lahori Gate Accused was driving the tempo bearing No. DL1LC 9252 on the public way in a manner so rash or negligent as to endanger human life or to be likely to cause injury to any other person thereby Accused committed an offence punishable u/s 2 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC 279 IPC.
Secondly, on the said date, time and place while Accused was driving the said vehicle in the said manner then struck Birju Kumar and cause simple blunt injury to him and thereby committed an offence punishable u/s 337 IPC.
2. Court took cognizance of the abovesaid offences and the charge against Accused was framed on 01.09.03 and a primafacie case was made out against the Accused and notice was accordingly served upon him for offence u/s 279/337 IPC to which Accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined two witnesses.
3 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC
4. PW1 is HC Ram Niwas who deposed that on the date of incident at relevant time he was posted at PS Lahori Gate and who registered FIR Ex.PW1/A on receiving Rukka sent by SI Jai Prakash through Const. Santosh Kumar and made an endorsement on the Rukka Ex.PW1/B bearing his signature at point A.
5. PW2 is Retd. SI Kali Charan who mechanically inspected the accidental vehicle at request of SI Jai Prakash and detailed report is Ex.PW2/A bearing his signature at point A. It is further submitted that break, horn and steering were in perfect working condition and there was no fresh damage on the vehicle.
6. On 25.01.10, statement of Accused recorded and all the incriminating evidence was put to the Accused u/s 313 CrPC in which he 4 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC denied all the allegations made against them. Accused choose not to lead any defence evidence.
7. At the time of final arguments, it is submitted by Ld. APP for the State that the case of the prosecution is proved beyond reasonable doubt on the basis of the oral and documentary evidence and contents of the charge has been duly proved. In reply to this, it is submitted by Counsel for Accused that injured is not traceable in the present case and no public witness were joined which creates reasonable doubt on the version of the prosecution. It is further submitted that the driver himself took the injured to the hospital and further deposed that accident happened due to mistake of injured himself.
8. I have gone through the judicial file, perused the record very 5 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC carefully, heard the rival contentions made on behalf of both the sides and also perused the evidence lead on behalf of both the sides. The evidence and supporting documents available on record are not sufficient to convict the Accused, no public witness was joined by the police, despite their availability.
9. The manner in which the inquiry and search etc. was stated to be conducted at the spot at the time of arrest of the Accused is doubtful. Inspector fails to give reasonable excuse as to why the other shopkeepers or passersby were not asked to join the police proceedings with notice in writing or why he fails to take legal action u/s 187 IPC on such failure. It appears that no serious attempt was made by the Inspector at the time of arrest of Accused to join the shopkeepers or passersby in the police proceedings. This failure on the part of prosecution creates reasonable 6 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC doubts in the prosecution story. In this regard reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. in the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken
7 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were
8 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A 9 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful". In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
10 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. there can be cases when public witnesses are reluctant to join or are not 11 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every 12 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
10. The manner in which the search of the Accused was conducted on the spot is also not satisfactory as the police persons had not offered their own search to the Accused before taking the search of Accused. At this juncure, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is 13 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See ARI 1969 SC 53:(1969 Cri L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above 14 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by abovesaid case law, it can be said that search of the Accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
11. The injured was not traceable during the proceedings of the present case and in the absence of testimony of injured person, both the prosecution witnesses cannot be relied safely as among both the witnesses none was present on the spot at the time of alleged incident / offence.
12. In view of the aforesaid discussion, in my opinion, prosecution has not been able to prove its case against the Accused beyond reasonable 15 of 16 FIR No. 109/02 PS Lahori Gate State Vs. Anil Kumar U/s 279/337 IPC doubts. Accordingly, Accused is acquitted to the charge levelled against him. Bail Bond stands cancelled, if any. Documents, if any, be returned after taking photocopy of the same on record.
File be consigned to the Record Room after due compliance. Announced in the open court (DEVENDER NAIN) th on 08 day of March, 2010 MM(NORTH06):DELHI 16 of 16