State of Punjab Versus Satish Kumar & Others: Gau Raksha Dal

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State Vs Satish Kumar and others
IN THE COURT OF MRS. SUMAN PATHAK

SUB DIVISIONAL JUDICIAL MAGISTRATE, RAJPURA
Challan. No.43RBT-19 dated 17.9.2016

CIS No. CHI No.259 of 2016
CNR No.PBPTA1-001706-2016.
Decided on: 04.07.2019.
State Versus 1. Satish Kumar President Gau Raksha

Dal,Rapura son of late Charan Dass,
resident of B-1/1484, Mittal Street, Old
Rajpura, P.S.City Rajpura.
2. Arun Kumar @ Annu son of Harish
Kumar resident of 1965, Near S.D.
School, Rajpura Town.
3. Kapil @ Gori son of Harish Kumar
resident of 1965, Near S.D.School
Rajpura Town
4. Gurpreet Singh @ Happy son of Avtar
Singh, resident of H. No. 1021, Gali no.
10, Gurbax Colony, Patiala.
Accused.
FIR No.191 dated 07.08.2016

U/s.377/382/384/341/342/323/506/148/149 of Indian Penal Code
P.S. City Rajpura Patiala.
Present: Ms.Harpreet Kaur APP for the State,

Accused Satish Kumar, Arun Kumar, Kapil and Gurpreet
Singh in custody represented by their counsel.
JUDGMENT
1. The accused named above have been challaned by the police
of Police Station City Rajpura to face trial for the offence punishable
under sections 377/382/384/341/342/323/506/148/149 of Indian Penal
Code
2. Briefly stated the instant case was registered accused Satish
Kumar President Gau Raksha Dal,Rapura son of late Charan Dass,

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resident of B-1/1484, Mittal Street, Old Rajpura P.S.City Rajpura, Arun
Kumar @ Annu son of Harish Kumar resident of 1965, Near S.D. School,
Rajpura Town, Kapil @ Gori son of Harish Kumar resident of 1965,
Near S.D.School Rajpura Town and Gurpreet Singh @ Happy son of
Avtar Singh, resident of H. No. 1021, Gali no. 10, Gurbax Colony, Patiala
on the allegations that one year prior to 7.8.2016 in the area of Gagan
Chowk aforesaid persons with some unidentified persons were members
of unlawful assembly in prosecution of common object being armed with
deadly weapon i.e. iron rod, kirpan wooden stick and dangs which are
used as weapon of offence are likely to cause injury to others and they
voluntarily restrained Mausin and Itzar and also caused simple hurt to
them them. It is further allegations against the accused that they also
wrongfully confined Mausin and Intzar and being the members of
unlawful assembly committed theft of Rs.1 lac in cash and 8 buffaloes
belonging to Mausin and Itzar. It is further allegation against the accused
that they about two years prior to 22.8.2016 in the area of Rajpura being
member of unlawful assembly committed theft of Rs.1,50,000/- in cash
out of possession of Surjit Singh and Tara Singh. On these allegations
present case was registered against the accused under section
382/384/342/323/506/148/149 IPC and section 377 against accused Satish
Kumar alongwith other sections of IPC as referred above. Investigating
Officer prepared the rough site plan by visiting the place of occurrence.
Medical record of the injured was also obtained from the concerned
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doctor. Accused were arrested in this case. Their arrest cum intimation
memos and personal search memos were prepared separately. Statements
of the witnesses under Section 161 Cr.P.C. were recorded. After
completion of all the necessary formalities of investigation, challan
against the accused was presented in the Court.
3. After presentation of challan in the court, the copies of all the
documents, relied upon by the prosecution, were supplied to the accused,
as envisaged under Section 207 Cr. P. C, free of cost.
4. From the perusal of report under Section 173 CrPC, prima
facie offences under Sections 377/382/384/341/342/323/506/148/149 IPC
were found to have been made out against the accused persons.
Accordingly, charge under the said Sections of IPC was framed against
the accused and the contents of the charge were read over and explained
to the accused in simple language, to which they pleaded not guilty and
claimed trial and the case was posted for prosecution evidence.
5. In order to prove its case the prosecution has examined PW1
H.S.Sindia ASDJM Mukatsar, PW2 Inspector Gurjit Singh, PW3 Dr.
Gurnik Singh, PW4 Tara Singh, PW5 Dr. Shubh Karman Deep Singh,
PW6 Dr.Vikrant Nagra, PW7 Intzar @ Imtihar, PW8 Mohd.Mohsin alias
Bablu, PW9 HC Sukhwinder Singh, PW10 Surjit Singh, PW11

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H.C.Jaswinder Pal, PW12 ASI Gurvinder Singh. The prosecution has
availed several opportunities to conclude its evidence but failed to
conclude the same despite availing last opportunity. There was no
justification to grant more opportunities to the prosecution for its
evidence. Accordingly, the evidence of the prosecution is closed by order.
6. Thereafter, statement of the accused under Section 313 CrPC
was recorded, wherein the accused has denied all the allegations made
against them by the prosecution and pleaded for innocence and false
implication in the case. They stated that they have not committed any such
offence. They have no concern with present case nor having concern with
Gau Raksha Dal. They further pleaded that Investigating officer has got
registered false case on the basis of false story that he has received secret
information. They have not inflicted any injury to any person nor they
have ever demanded any amount from any person. Thereafter, defence has
not led any evidence and closed the same by making separate statement.
7. I have heard the learned APP for the state and the learned
defence counsel and have gone through the case file meticulously with
their able assistance.
8. Ld. APP for the State has submitted that in view of the
evidence led by the prosecution in the form of oral testimonies of PW1
H.S.Sindia ASDJM Mukatsar, PW2 Inspector Gurjit Singh, PW3 Dr.

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Gurnik Singh, PW4 Tara Singh, PW5 Dr. Shubh Karman Deep Singh,
PW6 Dr.Vikrant Nagra, PW7 Intzar @ Imtihar, PW8 Mohd.Mohsin alias
Bablu, PW9 HC Sukhwinder Singh, PW10 Surjit Singh, PW11
H.C.Jaswinder Pal, PW12 ASI Gurvinder Singh, case of prosecution
stands fully proved, beyond the reasonable shadow of doubt and prayer
has been made to convict the accused as per law.
9. On the other hand, the learned defence counsel argued that
the prosecution has failed to prove its version against the accused beyond
reasonable shadow of doubt. He further argued that it has specifically
come on record in the evidence of Dr. Gurnik and PW6 Subh Karan Deep
Singh that accused persons were not medico examined as the occurrence
was one year back. So he contended that there is no medical record
proved by the prosecution to support and corroborate the version of
complainant. He further argued that in the instant case the prosecution
has failed to establish and prove the alleged CD placed on record as even
certificate under Section 65-B of Indian Evidence Act has not been placed
on the file. It is further contended that there is neither any date or time of
the alleged occurrence so claimed by the prosecution and argued that as
per settled law of land, any FIR without any specific date and time has to
be taken as suspicious facts. He also placed on record judgment Ex.DH in
case titled as State Vs. Surjit Singh in which the present witness PW4 Tara
Singh was convicted by the learned court of Sh. H.S.Sindhia the then
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learned Sub Divisional Judicial Magistrate, Rajpura. He further argued
that version of PW4 Tara Singh cannot be relied upon as he was already
convicted in a State case which is judgment proved on record as Ex.DH
titled as State Vs. Surjit Singh. He further argued that the prosecution
witness PW8 Mohd. Mohsin alias Bablu has even not supported the
version of the prosecution in toto. Learned defence counsel then
contended that prosecution failed to prove its version against accused
beyond reasonable shadow of doubt. He further argued that essential
ingredients of Sections 377/382/384/342/323/506/148/149 of Indian Penal
Code have not been proved on record and accused have been falsely
implicated in this case and therefore payed accused be acquitted of the
charges framed against them.
10. In the present case to discuss with, prosecution firstly
examined PW1 H.S.Sindhia, ASDJM Rajpura who deposed that he has
recorded the statement of complainant Mousin alias Bablu. He identity
his signatures on Ex.PW1/A. The complainant has made his statement out
of his free will and without any pressure. He further deposed that on the
same day, he recorded the statement of Intezar and Khursid Mohd. He
identified his signatures on Ex.PW1/B. The complainant has given his
statement out of his free will and without any pressure.
11. PW2 Inspector Gurjit Singh stepped into witness box and
deposed in the lines of prosecution version. He proved on record request
moved before Ld. SDJM Rajpura for recording the statement of Mausin
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U/s 164 Cr.P.C Ex.PW2/A and Intzar Ex.PW2/B, memo of arrest
Ex.PW2/C, memo of personal search Ex.PW2/E and Memo of possession
of Scorpio HR 01AN0948 Ex. MO4 along with original RC vide memo
Ex.pw2/G, RC of above said vehicle is Ex.PW2/H, request for remand
Ex.PW2/J,disclosure statement of accused Kapil Ex.Pw2/M, memo of
possession of wooden stick ExPW2/P and same is Ex.MO2. He further
proved site plan of recovery Ex.PW2/I application moved before medical
officer A.P.Jain Civil Hospital Rajpura for medically examination of
Satish Kumar Ex.PW2/R, request moved before Ld. SDJM Ex.PW2/S for
police remand. He has specifically deposed that he has seen the case
property i.e. wooden danda, dasta of kahi and sword iron and the same is
Ex.MO1 to MO3. He further deposed that he has seen Scorpio vehicle
bearing registration No. HRO/AN-0948 and the same is Ex.MO4. He also
deposed that he presented the challan against the accused. He further
deposed that he recorded the statements of the witnesses.
12. PW3 Dr.Gurnik Medical officer, A.P.Jain Hospital Rajpura
deposed that on 10.8.2016, he conducted medical examination of Mohsin
alias Bablu who had complaint of assault. The incident had occurred one
year back. He deposed that he has seen the report prepared by him and
proved the same as Ex.PW3/A.
13. Prosecution further examined PW4 Tara Singh who deposed
that he is an agriculturist. He is doing the business of cows and buffaloes.
They used to purchase the cows, buffaloes etc. from the Cattle
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Mandi(market) Punjab and used to sell the same in other States. About
two years prior, they had purchased 52 cattle and collected them at
Ghaggar Sarain. They loaded the said cattle in a truck and were going to
Ghanour. When they reached on the bridge of Canal, Satish Kumar
alongwith 25-30 persons who were armed with deadly weapons stopped
them. The accused persons started giving beating to him. They also
extorted Rs.1,50,000/-. He is an illiterate person. The number of the truck
in which they have loaded the said cattle is 7789 and he does not disclose
the words which were written in English language. The said persons also
got registered a false case against him and other persons in which have
been acquitted. The aforesaid accused have alighted some of the cattle in
the Gaushala at Ghanour alongwith other articles belonging to them. He
further deposed that the accused has snatched the cattle and other articles
of worth Rs.13,00,000/- from him.
14. PW5 Dr. Shubh Karman Deep Singh, Medical officer,
A.P.Jain Civil Hospital Rajpura deposed that on 21.8.2016, he conducted
the medical examination regarding sexual fitness of Satish Kumar
accused. He specifically deposed that there is nothing to suggest that he
is unable to do sexual intercourse. He has seen the report prepared by him
on the judicial file and proved the same as Ex.P5.
15. PW6 Dr.Vikrant Nagra Medical officer, A.P.Jain Civil
Hospital Rajpur deposed that on 17.8.2016, he examined Imitiaz son of
Khurshid Ali who had complaint of assault one year back. Since, the
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incident had occurred one year back, medical examination cannot be
performed for the mentioned complaint of patient. He seen the report
prepared by him on the judicial file which is Ex.P6.
16. Prosecution examined PW7 Intzar who deposed he is doing
the business of buffaloes and as truck driver. He specifically deposed
that they used to purchase buffaloes from the Cattle Market Punjab and
used to sell the same from the last 15/20 years. He then specifically
deposed that in the year 2015, he alongwith Mohsin alias Bablu after
loading buffao were going to Saharanpur to sell them. He was driving the
truck and Mohsim was accompanying with him. When their truck reached
at National Highway near bye-pass Rajpura they were encircled by
persons who came in Scorpio and Bolero vehicles and were armed with
deadly weapons i.e. Kirpan. He then stated that Satish Kumar, Babu and
other persons gave him beatings with the weapon i.e. Kirpan and also to
Mohsim. He also stated that Satish Kumar snatched Rs.1,00,000/- from
him. The aforesaid 15-20 persons took them at Gaushala Rajpura
alongwith loaded vehicle. They took eight buffaloes from the truck.
They kept him and Musin at Gaushala Rajpura and gave them beatings.
Accused Satish Kumar and Bablu put off his clothes as well as cloth of
Musin and conducted sodomized activities with them. Satish Kumar
unloaded their vehicle in the gaushala and threatened them with dire
consequences if they would disclosed the matter to any one they would be
killed. After one year he seen his video regarding the same on the
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network. Thereafter, he visited the police station Rajpura and narrated the
entire episode. His statement was recorded in the police. On his request
the police officials also produced him before the SDJM Rajpura and he
got recorded his statement in the court in this regard. He deposed that he
has seen his statement and identified his signatures on the same as Ex.P1.
17. PW8 Mohd.Mohsin alias Bablu deposed in his examination in
chief in the starting lines supported the case of the prosecution by
deposing that he used to purchase and sell buffaloes and he stated that on
8.10.2016, he and Intzar PW7 were going to UP in their Truck which was
being driving by Intazr and when they reached at National Highway near
bye-pass Rajpura they were encircled by persons who came in Scorpio
and Bolero vehicles and were armed with deadly weapons i.e. Talwar
Danda and Knife. He then stated that accused Satish Kumar Pardan took
their ten tyre Truck to Gaushala and then they were beaten by Satish
Kumar and others. He deposed that he was having Rs.1,00,000/- in cash
which was snatched by Satish Kumar. He proved his statement Ex.P8.
But turned hostile in his cross-examination in toto and denied all the facts.
18. PW9 H.C.Sukhwinder Singh tendered into evidence his duly
sworn affidavit Ex.P9, wherein he deposed that on 20.8.2016 Inspector
Gurjit Singh in the above said case, deposited in the Malkhana vehicle
No. HR01AN 0948 Marka Scorpio black colour, Rs. 1300/- recovered
from personal search of accused Satish Kumar and one mobile Index,
Rs.1000/- recovered from personal search of Kapil and one mobile marka
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HICEII. He deposed that on 21.08.2016 Inspector Gurjit Singh deposited
in the Malkha one kirpan recovered from accused Satish Kumar, one
Dasta recovered from accused Kapil Kumar and one wooden stick(Danda)
recovered from accused Arun Kumar. He further deposed that on
22.8.2016 ASI Gurwinder Singh deposisted on in Malkhana one danda
recovered from accused Gurpreet Singh. He also deposed that entry of
the said articles were made in register no. 19 by him.
19. Prosecution further examined PW10 Surjit Singh who
deposed that he deposed that he is driver of truck No. HR38N-7789. He
deposed that he does not know as to whether in the year 2014 the
aforesaid truck was encircled by Satish Kumar and 20-25 other persons
in the area of Ghanour. At that time they were armed with deadly
weapons i.e. knife and sword. He was saved by the police, otherwise
would have been killed by the aforesaid persons. They have extorted
currency notes of Rs. 1,50,000/- and 52 cattle and other articles belonging
to Tara Singh. He identified the accused present in the court. He proved
his statement Ex.P1 recorded to the police.
20. Prosecution examined PW11 H.C Jaswinder Pal who
deposed that on 7.8.2016, he alongwith other police officials were present
at Gagan Chowk Rajpura regarding patrolling. Then a secret information
was received to ASI Gurwinder Singh that Satish Kumar President of Gau
Raksha Dall, Kala Suniya, Annu, Gori, Gurpreet alias Happy alongwith
15-20 unidentified persons were at Gaushala, old Rajpura and they used to
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surrender the vehicle loaded with cattle of muslims and they are beating
the muslim persons and doing un-natural acts with the persons and they
are also armed with weapons. Ruqa was sent to the police for registration
of the case on the basis of which FIR Ex.PW11/A was got registered. He
proved endorsement on the FIR Ex.PW11/B. He further deposed that on
10.8.2016, he was present at P.P. with the investigating officer then I.O.
took into possession the CD vide recovery memo Ex.PW11/C. Statements
witnesses were recorded. On 22.8.2016, IO arrested accused Gurpreet
Singh and prepared arrest memo of accused Ex.P11/D and personal
search memo Ex.PW11/E. Wooden stick recovered from accused Gurpreet
Singh was taken into police possession vide memo Ex.PW11/F. Surjit
Singh and Tara Singh came at police post and they identified the accused
persons. He proved identification memo of accused Ex.P1.
21. Prosecution further examined PW12 ASI Gurwinder Singh
who deposed that on 7.8.2016, he alongwith other police officials were
present at Gagan Chowk Rajpura regarding patrolling. Then a secret
information was received to the effect that Satish Kumar President of Gau
Raksha Dall, Kala Suniyar, Annu, Gori, Gurpreet alias Happy alongwith
surrender the vehicle loaded with cattle of muslims and they are beating
the muslim persons and doing un-natural acts with the persons and they
are also armed with weapons. He also deposed that the said persons used
to up-load the videos of that persons on the network. He further proved

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ruqa Ex.Pw12/A FIR Ex.Pw11/,Endorsement Ex.pw11/B, written request
moved before Ld. SDJM for recording the statement U/s 164
Cr.P.C,memo of possession of CD Ex.Pw11/C, CD Ex.Pw12/B, Statement
of Mausin Ex.P8,memo of arrest of Satish Kumar, Arun and Kapil@ gauri
Ex.Pw2/C, memo of personal search Ex.Pw2/E and Memo of possession
of Scorpio HR 01AN0948 Ex. MO4 along with original RC vide memo
Ex.pw2/G, RC of above said vehicle is Ex.Pw2/H, request for remand
Ex.pw2/J,disclosure statement Ex.Pw2/M, memo of possession of wooden
stick ExPw2/P and same is Ex.MO2, site plan of recovery Ex.Pw2/I
memo of possession of scorpio Ex.Pw2/G, Memo of arrest Ex.Pw11/D,
personal search Ex.Pw11/E, memo of possession of wooden stick
Ex.pw11/F, memo of identification Ex.P1, site plan Ex.pw12/C, special
report Ex.pw12/D, request before medical officer for medical examination
of Mausin and Intzar Ex.Pw12/E and Ex.Pw12/F. Sketch of Kirpan
Ex.Pw2/N, wooden stick MO5.
Apart from that statement of Mosim alias balu and Intzar
recorded under section 164 Cr.P.C. are also relevant to be mentioned
herein which are reproduced as under:-
Statement of Mosim alias Bablu recorded under section 164 Cr.P.C.is
reproduced as under :-
Satish, Bablu alongwith 10/15 persons put him in his vehicle

i.e. Tralla having 10 tyres and took him to Gaushala Rajpura.
Bablu put off his clothes and did wrong act with him. Satish
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and other persons gave him beatings. Satish urinated in his

mouth. Bablu snatched a sum of Rs. 1,00,000/- from him
which were kept by him for his business dealing.
Sd/
Harinder Singh
SDJM/Rajpura/17.8.16
Statement of Intjar @ Imtihas recorded under section 164 Cr.P.C.is
reproduced as under :-
He was taking his cattles. 18/20 persons caught him at

Rajpura bye-pass and took him to Gaushala Rajpura. He was
beating by them after putting off his clothes. Satish Pardan
misbehaved him. He snatched Rs. 1,00,000/- from him. He
urinated in their mouth and made video of the said activities
and uploaded on the net. Said Satish was accompanied by
one Rana, son of Rana, Baba of Jamuna Nagar and one
Bablu to whom he identified. He also stated that the
remaining persons can be identified as and when they would
be produced before him.
Sd/
Harinder Singh
22. Now to the first contention of learned defence counsel that
the present FIR has been registered in which no specific date and time has
been mentioned of the alleged occurrence. So the prosecution story in
itself has become doubtful. I even find merits in this argument. The
perusal of the file reveals that as rightly argued by the learned defence
counsel that no specific date and time has been mentioned of the alleged
occurrence by the complainant or any other witness. The court is of the

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considered view, and as held in State of Andhra Pradhesh Vs.N
Madhusudhan Rao (2008)15 SCC 588 Hon'ble S.C. that delayed report
not only get bereft of the advantage of spontaneity, the danger of the
introduction of coloured version exaggerated account of the incident or a
concocted story as a result of deliberation and consultations, also creeps in
casting a serious doubt on its veracity. Therefore, it is essential that the
delay in lodging the report should be satisfactorily explained. As also in
this case offences, except section 377 are simple in nature and the
explanation given by prosecution that after PW7 Intzar watch videos on
some unknown website and after one year, decided to lodge FIR,
definitely casts doubt and even not a reasonable explanation which
caused justify delay.
23. Further on examining the main witnesses of the present case
in one form of PW7 Intzar and PW8 Mohd. Mohsin the prosecution failed
to prove its version. As PW7 Intzar when examined deposed that he is
doing the business of buffaloes, is truck driver. He specifically deposed
that they used to purchase buffaloes from the Cattle Market Punjab and
used to sell the same from the last 15/20 years. He then specifically
deposed that in the year 2015, he alongwith Mohsin alias Balu after
loading were going to Saharanpur to sell them. He was driving the truck
and Mohsim was accompanying him. When their truck reached at
National Highway near bye-pass Rajpura they were encircled by persons
who came in Scorpio and Bolero vehicles and were armed with deadly
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weapons i.e. Kirpan. He then stated that Satish Kumar, Bablu and other
persons gave him beatings with the weapon i.e. Kirpan and also to
Mohsim. He also stated that Satish Kumar snatched Rs.1,00,000/- from
him. The aforesaid 15-20 persons took them at Gaushala Rajpura
alongwith loaded vehicle. They took eight buffaloes from the truck. They
kept him and Mohsin at Gaushala Rajpura and gave them beatings.
Accused Satish Kumar and Bablu put off his clothes as well as cloth of
Musin and conducted wrong acts. Satish Kumar unloaded their vehicle
in the gaushala and threatened them with dire consequences if they would
disclosed the matter to any one they would be killed. After one year he
had seen his video regarding the same on the network. Thereafter, he
visited the police pot Rajpura and narrated the entire episode. His
statement was recorded in the police. On his request the police officials
also produced him before the SDJM Rajpura and he got recorded his
statement in the court in this regard. He deposed that he has seen his
statement and identified his signatures on the same as Ex.P1.
Now let us see what this witness had to depose in his cross
examination, this witness admitted that he had no record or receipt by
which he could show that he is doing the business of purchase/sale of
buffaloes. He further admitted that no identification parade was
conducted by the police in this case. He further stated that he cannot tell
the time when police recorded his statement. He further admitted that he
has not disclose the vehicle number on which the alleged occurrence took
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place. He further stated that he even cannot tell number of the alleged
vehicle which stopped him. In his evidence, he further admitted that he
had not even given any record of the alleged amount stated by him which
was allegedly stolen. Regarding CD on record, it has specifically come in
evidence of PW7 Intzar that he got prepared CD from Saharanpur but he
cannot tell the name of owner of the shop from whom he got prepared the
same. He even admitted that he had not given bill of preparation of the
said CD. He further admitted that he has not disclosed the name who had
prepared the CD.
Certain other important points come out from cross
examination of this witness(PW7), as this witness admitted that he has not
disclosed any other identify of accused except that they were hindu
gentleman and further further admitted that no identification prayed was
conducted by the police, so as rightly argued by the learned defence
counsel that in the absence of test identification parade and when there is
no clear identity disclosed by PW7 Intzar except that accused were hindu
gentleman, in the present facts and circumstances of the case when
identification parade was not conducted by the police, it definitely give
benefit to the accused persons.
Further in his cross examination, this witness admitted that
police had called and asked to this witness to come in the year 2015 for
giving his statement. He further stated that police officials came at
Saharanpur to record his statement. He further admitted that police

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officials neither took him to the place of occurrence nor asked him about
identity the accused. He further admitted that no medical report has been
given by him to the police.
From the lengthly cross examination of Intzar PW7 defence
has been able to show that there is no specific date and time of the alleged
occurrence. Only reference is of year 2015. Neither, there is any
identification prayed nor there is any record/receipt to prove the
prosecution version that complainant is doing the business of sale and
purchase of buffaloes as alleged by PW7 Intazr.
Furthermore, regarding the alleged CD on record, it has
specifically come in evidence of PW7 Intzar that he got prepared CD
from Saharanpur but he cannot tell the name of owner of the shop from
whom he got prepared the same. He even admitted that he had not given
bill of preparation of the said CD. He further admitted that he has not
disclosed the name who had prepared the CD. Further as per settled law,
and also in Judgment titled as Tumso Bruna Vs. State of U.P.(20 January
2015) Hon'ble Supreme Court of India (Criminal Appeal no. 142 of 2015)
certificate under section 65 of Indian Evidence Act is pre-requisite to
prove electronic evidence and the prosecution has failed to prove the
electronic evidence i.e. C.D, as per settled provisions of law under section
65-B of indian Evidence Act.
24. Another star witness PW8 Mohd. Mohsim alias Bablu in his
examination in chief in the starting lines supported the case of the

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prosecution by deposing that he used to purchase and sell buffaloes and he
stated that on 8.10.2016, he and Intzar PW7 were going to UP in their
Truck which was being driving by Intazr and when they reached at
National Highway near bye-pass Rajpura they were encircled by persons
who came in Scorpio and Bolero vehicles and were armed with deadly
weapons i.e. Talwar Danda and Knife. He then stated that accused Satish
Kumar Pardan took their ten tyre Truck to Gaushala and then they were
beaten by Satish Kumar and others. He deposed that he was having
Rs.1,00,000/- in cash which was snatched by Satish Kumar. This witness
also stated that they uploaded the video on the net. He also stated that his
statement was recorded under section 164 Cr.P.C., though this witness was
turned hostile in his cross examination and learned defence counsel stated
that his evidence could be read but as rightly argued by learned APP for
the state that if this witness is turned hostile, even then his evidence can
be read into evidence for considering the facts and circumstances of the
case. To this argument, I deem it appropriate to refer that as per settled
law in Siddharth Vashisht @ Manu Sharma Vs. State of Delhi (NCT)(AIR
2010 SC-2352), that total version of the hostile witness cannot be
discarded but the evidence supporting the prosecution case to be taken
into account for proving prosecution version but in this case PW8 turned
hostile in toto and had not admitted any fact of the prosecution version so,
defence counsel rightly argued that evidence of this witness is of no help
to the prosecution version.

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25. Now court treads further to assert as to whether prosecution
was unable to prove alleged offence and charge under section 384/382
against accused. PW7 Intzar stated that the occurrence took place in the
year 2015, whereas PW8 Mohd.Mohsim stated that the alleged occurrence
took place on 8.10.2016, which cast shadow on the prosecution case
regarding alleged occurrence. Prosecution failed to explain this
discrepancy on record. Further PW7 Intzar stated that they were having
Rs.1,00,000/- in cash and those were snatched by accused, meaning
thereby no specific mention of denomination has been referred in the
evidence of PW7 Intzar and prosecution failed to prove regarding
possession o Rs, 1,00,000/- and the source from which they had that
amount to tune tune of Rs. One lac in their possession at the time of
alleged occurrence and as such the prosecution has failed to prove the
charges against the accused under section 384/382 IPC regarding
snatching of Rs.1,00,000/- from the accused.
26. Another aspect which has been argued at length by the
learned defence counsel is that there is major discrepancy regarding the
registration of FIR. He further argued that prosecution failed to explain
how FIR lodged in this case. I even find merits in the arguments of
learned defence counsel as PW7. PW7 Intzar was examined in his cross,
this witness stated that the police had called and asked him to come in the
year 2015 for giving his statement but later on police came at Saharanpur
to record his statement. On the other hand PW11 H.C.Jaswinder Pal

21
Singh was examined who claimed that on 7.8.2016, he was posted at
P.P.Bus Stand Rajpura. On that day he alongwith Incharge ASI
Gurwinder and other police officials were present at Gagan Chowk
Rajpura regarding patrolling whereby he alleged that ASI Gurwinder
Singh received secret informatrion that Satish Kumar President of Gau
Raksha Dall, Kala Suniya, Annu, Gori, Gurpreet alias Happy alongwith
encircled the vehicle loaded with cattle of muslims and are beating the
muslim persons and even doing un-natural acts with those persons. This
witness alleged that on this, IO wrote Ruqa against the accused and
thereby FIR Ex.PW11/A was got registered. In his cross examination this
witness stated that intial investigation was conducted by Sh. Gurwinder
Singh and later on Sh.Gurjit Singh investigated this case. PW12
Gurwinder Singh who conducted the initial investigation of this case
stated on 9.8.2016 Intzar(PW7) called him and also asked him that he
want to be part of investigation and this witness alleged that on 10.8.2016
Mohsim alias Bablu came to the Police Station and they they were joined
in the investigation. So prosecution also failed to explain these major
discrepancies.
27. So from the evidence of PW7 Intzar, PW11 H.C.Jaswinder
Singh and PW12 ASI Gurwinder Singh it has been established that
different version has been put forth by these witnesses as to how Intzar
and Mohsim joined the investigation. So prosecution failed to prove this

22
discrepancy.
28. Another important aspect which need to be taken is that
prosecution alleged that during the occurrence offence under section 377
IPC has been committed by one Satish Kumar with Intzar PW7 and to
prove this charge against accused Satish Kumar, the prosecution mainly
relied upon the statement of PW5 Dr. Suhbh Karman Deep Singh.
Statement of Mosim alias Bablu recorded under section 164 Cr.P.C
proved on record as Ex.PW1/B which is reproduced as under :-
Satish, Bablu alongwith 10/15 persons put him in his vehicle

i.e. Tralla having 10 tyres and took him to Gaushala Rajpura.
Bablu put off his clothes and did wrong act with him. Satish
and other persons gave him beatings. Satish urinated in his
mouth. Bablu snatched a sum of Rs. 1,00,000/- from him
which were kept by him for his business dealing.
Sd/
Harinder Singh
Statement of Intjar @ Imtihas recorded under section 164 Cr.P.C proved
on record as Ex.PW1/B is reproduced as under :-
He was taking his cattles. 18/20 persons caught him at

Rajpura bye-pass and took him to Gaushala Rajpura. He was
beating by them after putting off his clothes. Satish Pardan
misbehaved him. He snatched Rs. 1,00,000/- from him. He
urinated in their mouth and made video of the said activities
and uploaded on the net. Said Satish was accompanied by
one Rana, son of Rana, Baba of Jamuna Nagar and one
Bablu to whom he identified. He also stated that the
remaining persons can be identified as and when they would
23
be produced before him.

Sd/
Harinder Singh
29. So,PW7 Intzar had only stated to the effect that he was
sodomized by Satish Kumar. It is pertinent to mention here that statements
recorded under section 164 Cr.P.C is merely corroborative in nature and
in this case prosecution failed to prove its case against accused beyond
reasonable shadow of doubt. Further evidence of doctor is every relevant
to be mentioned that PW5 Dr. Shubh Karman Deep Singh, Medical
officer, A.P.Jain Civil Hospital Rajpura deposed that on 21.8.2016, he
conducted the medical examination regarding sexual fitness of Satish
Kumar accused. He specifically deposed that there is nothing to suggest
that he is unable to do sexual intercourse. He has seen the report prepared
by him on the judicial file and proved the same as Ex.P5.
30. Further,from the perusal of statement given by PW 6 Dr.
Vikrant Nagra, he specifically admitted that He had not medico examined
Imtias as the occurrence was one year back. Moreso, in this case neither
any document put on recored, nor satisfactorily explanation regarding the
alleged occurrence was given by the prosecution and its onus was on the
prosecution to prove its case beyond reasonable doubt which prosecution
failed to do so. Rather PW7 Intzar even admitted in his cross
examination that no medical record even produced by him before police.
So, there is no medical report of PW7 Itzar to show that there was any
24
alleged carnal intercourse with him by Satish Kumar accused. Rather,
PW7 Intzar admitted that no medical report has been given by him to the
police. Similarly, in the cross examination of PW12 ASI Gurwinder
Singh IO, this witness was specifically being asked regarding the medical
report of Mohsim and Intzar were produced or taken into police
possession or not. But this witness in his first query, being put forth to
him was,i.e. whether Investigating Officer ever asked the doctor to give
opinion of offence under section 377 IPC,” as alleged by the prosecution
of Mohsim and Imtihas. On this, PW12 ASI Gurwinder Singh replied
that,“ he only asked doctor whether accused was sexually fit or not”
31. There is specific question as to whether any medical report
supporting the allegations of section 377 IPC has been produced before
him or not. On this, query again it has come on record in the cross
examination of PW12 ASI Gurwinder Singh, that “no medical report has
ever been brought into his notice”, meaning thereby there is no medical
record to corroborate and support the version of the prosecution regarding
the offence under section 377 IPC Accordingly, the offence under section
377 IPC is not proved on the file.
32. The prosecution also relied upon the evidence of PW4 Tara
Singh who deposed that Prosecution further examined PW4 Tara Singh
who deposed that he is an agriculturist. He is doing the business of cows
and buffaloes. They used to purchase the cows, buffaloes etc. from the
Cattle Mandi(market) Punjab and used to sell the same in other States.
25
About two years prior, they had purchased 52 cattle and collected them at
Ghaggar Sarain. They loaded the said cattle in a truck and were going to
Ghanour. When they reached on the bridge of Canal, Satish Kumar
alongwith 25-30 persons who were armed with deadly weapons stopped
them. The accused persons started giving beating to him. They also
extorted Rs.1,50,000/-. He is an illiterate person. The number of the truck
in which they have loaded the said cattle is 7789 and he does not disclose
the words which were written in English language. The said persons also
got registered a false case against him and other persons in which have
been acquitted. The aforesaid accused have alighted some of the cattle in
the Gaushala at Ghanour alongwith other articles belonging to them. He
further deposed that the accused has snatched the cattle and other articles
of worth Rs.13,00,000/- from him.
In his cross examination this witness stated that he had been
acquitted in case FIR No. 38 dated 8.6.2014. The learned defence
counsel has also placed on records copy of the judgment in case tittled as
State Vs. Surjit Singh in case FIR No. 38 dated 8.6.2014 in which this
witness Tara Singh has been convicted by my learned predecessor Sh.
H.S.Sindhia the then learned Sub Divisional Judicial Magistrate Rajpura
on 20.4.2017 for the offence under section 4/8 of Cow Slaughter Act 1955
and under Section 11 of Prevention of Cruelty to Animals Act 1960 Vide
judgment Ex.DH on file. Meaning thereby this witness in his examination
in chief claimed that false FIR has been registered against the present
26
accused and he was acquitted but the certified copy of the judgment
Ex.DH duly referred that, in FIR No. 38 dated 8.6.2014, he was
convicted by my learned predecessor Sh. H.S.Sindhia the then learned
Sub Divisional Judicial Magistrate Rajpura vide judgment dated
20.4.2017, and as such definitely, this witness had grudge against the
present accused Satish Kumar.
33. The court also deems it appropriate to refer evidence of PW3
Dr. Gurnit Singh and PW6 Dr. Vikrant Nagra. PW3 Dr. Gurnik Singh
stated that on 10.8.2016, he was posted at Civil Hospital Rajpura as
Medical officer. On that day, police official had moved an application for
medical examination of Mohsin alias Bablu. On the said application, he
examined Mohsin alias Bablu who has complaint of assault one year back.
This witness clearly stated that since the occurrence had taken place one
year back, medical examination cannot be performed for the mentioned
complaint of patient. He report his report Ex.PW3/A.
34. Similarly, PW6 Dr. Vikrant Nagra, Medical officer stated that
he was posted as Civil Hospital Rajpura as Medical officer. On that day,
police official had moved an application for medical examination of
Imitaz son of Khurshid Ali. He stated that he examined the patient who
had complaint of assualt one year back. This witness again clearly stated
that since the occurrence had taken place one year back, medical
examination cannot be performed for the mentioned complaint of patient.
He report his report Ex.P6. Accordingly, there is no medical evidence to

27
support/corroborate prosecution version.
35. Coming now to the next contention of learned defence
counsel that mandatory provisions of section 65-B of the Indian penal
Code has not been fulfilled as the CD as alleged by the prosecution has
even not properly proved and it cannot be given any benefit to the
prosecution story. On the other hand, the learned APP for the State argued
that even in the absence of certificate under section 65-B, same can be
read into evidence. It is also pertinent to mention here that per the
provisions of section 65-B of Indian Evidence Act, definitely the
certificate in this regard is mandatory and the perusal of the file reveals
that there is no certificate in this regard placed on record. Moreover,
regarding CD on record, it has specifically come in evidence of PW7
Intzar that he got prepared CD from Saharanpur but he cannot tell the
name of owner of the shop from whom he got prepared the same. He
even admitted that he had not given bill of preparation of the said CD.
He further admitted that he has not disclosed the name who had prepared
the CD. Moreso, there is admission of Investigating Officer,that there was
even editing in CD and no name of person from whom the same was
edited has come on record. Even no certificate as per the provisions of
section 65-B is placed on record which is a pre-requisite to prove
electronic evidence. Thus the arguments advanced by the learned defence
counsel holds merit
36. Above all, there is report under section 173(8) Cr.P.C dated
28
1.3.2017, perusal of which reveals that prosecution itself referred that the
present case might have been instituted against the accused out of enmity,
meaning thereby prosecution has itselft different version in the report
under section 173(8) Cr.P.C on the file.
37. Consolidating my aforesaid discussion, Cardinal principle of
administration of justice for criminal case is that a person arraigned is
presumed to be innocent unless that presumption is rebutted by the
prosecution by production of evidence to show that he is guilty of the
offence for which he is charged and burden of proof to prove the guilt of
the accused is upon the prosecution and in the instant case charges
against the accused beyond reasonable shadow of doubt has not been
proved and as such the accused stand acquitted of the charges framed
against them Case property, if any, be dealt with as per the rules, after the
expiry of period of limitation for filing appeal/revision,if any and the
result thereof. File be consigned to the record room.
Pronounced in open court on 4th day of July 2019.
Suman Pathak(PB0316)
Swaranjit Singh Sub Divisional Judicial Magistrate
Stenographer-II Rajpura
Directly dictated
Digitally signed by
SWARANJIT SWARANJIT SINGH
SINGH Date: 2019.09.04
14:16:07 +0530

State of Punjab Versus Satish Kumar & Others: Gau Raksha Dal

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State of Punjab Versus Satish Kumar & Others: Gau Raksha Dal

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1

IN THE COURT OF MRS. SUMAN PATHAK

Challan. No.43RBT-19 dated 17.9.2016

State Versus 1. Satish Kumar President Gau Raksha

FIR No.191 dated 07.08.2016

Present: Ms.Harpreet Kaur APP for the State,

1. The accused named above have been challaned by the police

under sections 377/382/384/341/342/323/506/148/149 of Indian Penal

2. Briefly stated the instant case was registered accused Satish

Kumar President Gau Raksha Dal,Rapura son of late Charan Dass,

resident of B-1/1484, Mittal Street, Old Rajpura P.S.City Rajpura, Arun

Rajpura Town, Kapil @ Gori son of Harish Kumar resident of 1965,

Near S.D.School Rajpura Town and Gurpreet Singh @ Happy son of

Chowk aforesaid persons with some unidentified persons were members

of unlawful assembly in prosecution of common object being armed with

wrongfully confined Mausin and Intzar and being the members of

unlawful assembly committed theft of Rs.1 lac in cash and 8 buffaloes

belonging to Mausin and Itzar. It is further allegation against the accused

member of unlawful assembly committed theft of Rs.1,50,000/- in cash

out of possession of Surjit Singh and Tara Singh. On these allegations

present case was registered against the accused under section

382/384/342/323/506/148/149 IPC and section 377 against accused Satish

Kumar alongwith other sections of IPC as referred above. Investigating

memos and personal search memos were prepared separately. Statements

of the witnesses under Section 161 Cr.P.C. were recorded. After

completion of all the necessary formalities of investigation, challan

against the accused was presented in the Court.

3. After presentation of challan in the court, the copies of all the

documents, relied upon by the prosecution, were supplied to the accused,

as envisaged under Section 207 Cr. P. C, free of cost.

4. From the perusal of report under Section 173 CrPC, prima

facie offences under Sections 377/382/384/341/342/323/506/148/149 IPC

5. In order to prove its case the prosecution has examined PW1

H.S.Sindia ASDJM Mukatsar, PW2 Inspector Gurjit Singh, PW3 Dr.

PW6 Dr.Vikrant Nagra, PW7 Intzar @ Imtihar, PW8 Mohd.Mohsin alias

Bablu, PW9 HC Sukhwinder Singh, PW10 Surjit Singh, PW11

H.C.Jaswinder Pal, PW12 ASI Gurvinder Singh. The prosecution has

availed several opportunities to conclude its evidence but failed to

conclude the same despite availing last opportunity. There was no

justification to grant more opportunities to the prosecution for its

evidence. Accordingly, the evidence of the prosecution is closed by order.

6. Thereafter, statement of the accused under Section 313 CrPC

their able assistance.

evidence led by the prosecution in the form of oral testimonies of PW1

H.S.Sindia ASDJM Mukatsar, PW2 Inspector Gurjit Singh, PW3 Dr.

PW6 Dr.Vikrant Nagra, PW7 Intzar @ Imtihar, PW8 Mohd.Mohsin alias

Bablu, PW9 HC Sukhwinder Singh, PW10 Surjit Singh, PW11

H.C.Jaswinder Pal, PW12 ASI Gurvinder Singh, case of prosecution

has been made to convict the accused as per law.

9. On the other hand, the learned defence counsel argued that

reasonable shadow of doubt. He further argued that it has specifically

was one year back. So he contended that there is no medical record

proved by the prosecution to support and corroborate the version of

complainant. He further argued that in the instant case the prosecution

the alleged occurrence so claimed by the prosecution and argued that as

be taken as suspicious facts. He also placed on record judgment Ex.DH in

learned Sub Divisional Judicial Magistrate, Rajpura. He further argued

convicted in a State case which is judgment proved on record as Ex.DH

version of the prosecution in toto. Learned defence counsel then

contended that prosecution failed to prove its version against accused

beyond reasonable shadow of doubt. He further argued that essential

ingredients of Sections 377/382/384/342/323/506/148/149 of Indian Penal

implicated in this case and therefore payed accused be acquitted of the