State Of U.P vs Dinesh on 25 February, 2009
19 There is nothing on record which may show that the
investigation is motivated or that the accused persons have been falsely
implicated due to previous enmity. Moreover, previous enmity is a
doubleedged weapon. If it becomes the reason for false implication, it
also supplies a reason and motive for the incident.
20 Defence counsels have further argued that it is not clear
whether the incident had taken place inside the shop or outside the shop.
Undoubtedly, as per PW1 Manjeet, incident had taken place when he was
sitting at the shop and incident had taken place inside the shop whereas
according to Kulwinder Singh, Manjeet was surrounded by accused
persons outside his shop. The court does not have the benefit of any
photograph of the actual spot and, therefore, I am constrained to again
switch over to the site plan. As per the site plan, point A is the place
where the incident had taken place and it is just touching the supposed
entrance of kiryana shop of complainant. Thus, there is not much
difference between inside or outside the shop and moreover, the manner
in which the incident has been narrated by the witnesses, it can safely be
State Vs. Dinesh etc. Page 11
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assumed that initially, when all the accused had come, the complainant
was sitting inside the shop but when he saw himself in hapless position,
he shouted for help and by that moment, he must have also come out of
the shop to save himself and then his two relatives came there and they
were also not spared by the accused persons and that particular scuffle
must have taken place just outside his shop and not inside the shop. In
view of aforesaid, such minor issue whether the entire incident had taken
place inside the shop or outside the shop pales into insignificance.
21 It has further been argued from the side of defence that
neither the alleged weapons of offence nor the alleged bloodstained
clothes of injured have been sized or recovered. Undoubtedly, the
investigating agency should have been very vigilant in this regard and
should have bothered to collect and seize at least the clothes of injured.
However, such defect in the investigation, by itself, does not become
sufficient to throw away the entire case of prosecution.
22 According to defence counsel, PW2 Kulwinder was admitted
in ICU and it is not possible that his statement would have been recorded
in ICU. I have seen MLC of PW2 Kulwinder which is exhibited as
Ex.PW9/B. Undoubtedly, PW2 Kulwinder was not fit for statement and,
therefore, his statement was not recorded immediately.