In the Hon’ble court of Sh. A.S. Narang, Sessions Judge. Rohtak.

State Versus 1. Narender 2. Vijay

FIR No.: 02/2019

U/s 353/307/186/511/114/34 IPC

PS: Shivaji colony, Rohtak.

Main Points of Defense Argument

1- That the burden to prove the case of the prosecution was upon the

prosecution by leading cogent evidence, but the prosecution has

miserably failed to prove its case beyond reasonable doubts against

the accused. Accused are quite innocent.

2- That as per the statement given by the PW-1 complainant SI

Suresh Kumar & PW-2 Yamin Head Constable before the court

on Oath that Investigating officer Parkash Chand did not

apprehend the accused, accused were shown apprehended by

one Parveen Kumar, SHO. But the statement of Parveen

Kumar SHO or his staff available with him Ram Jiwan driver

and ASI Shamsher have not been recorded by the Investigating

officer and this fact has also a self admitted by the Parkash

Chand Investigating officer who appeared as PW-7 in his cross-

examination at page no. 17 inline no. 8 to 12. Neither evidence

of Parveen Kumar SHO in this regard has been produced by the

Prosecution before the Hon’ble court. So the main link

chain of prosecution version is missing in this case, so

the benefit of doubt ought to have given to the accused.

 That in this case very important thing is that how

Parveen Kumar SHO gain information about the alleged

occurrence and accused, where his duty was posted in the

night of 31.12.2018, how many police personnel with him,

from where he had apprehended the accused, how he came to

know that Parkash Chand is the IO of the case nor any

statement of Parveen Kumar SHO has been recorded by IO nor

submitted with the challan nor Parveen Kumar SHO appeared

before the court regarding the arrest of accused, Parveen

Kumar SHO was the link chain which is missing nor any

version about Parveen Kumar SHO has been discussed by the

Investigating Officer during the investigation. As per the

statement of PW-1 & PW-2, no VT could be done as the

connection could not be established. So this fact fully creates

doubt upon the version of the prosecution.

3- That whole trial initiated by the Ld. The court is void ab-initio,

which is only based upon challan presented by the prosecution.

Mandatory Compliance as laid down u/s 195 CrPC is missing

in this case. For an offense under section 186 IPC, firstly

complaint in writing is required to be filed by the concerned

public servant or some other public servant or some other

public servant to whom he is administratively subordinate.

From the bare perusal of the record of the case file, the mandatory

complaint of section 195 CrPC is missing and has not complied by

the prosecution and no complaint has been presented on the

prescribed Performa (Format) by competent official laid down

under section 195 CrPC. Herein, the complaint forms, if any,

same is the part of the report under section 173 CrPC, in

 which there is no mention of detailed facts of the case. Since

the complaint forms part of challan, it can safely be said that

it was not presented by the complainant in person to the court

and its formal part of challan put in court. There is no specific

prayer in the writing except that the writer should be exempt

from personal appearance being busy in his official duties. It

was the challan on which he sought trial and the trial court too

has commenced trial based on the challan. At no stage, the

trial court is shown to have taken cognizance of this

complaint. Since the precondition and mandatory requirement

of a written complaint is missing.

Hence complaint under section 195 CrPC is neither

properly drafted for legal action nor presented per law nor the

complainant was present at the time of presenting the same in

the court nor any order has been passed by the trial court on

the same.

Non-compliance of section 195 CrPC is a non–curable

defect and breach of section 195 CrPC renders the proceeding

void ab initio. No court could have taken cognizance of the

offense under section 186 IPC except on a complaint of a

proper officer made under section 195 CrPC.

In support of this view, the following are the judgments:_

(i) Sachin and others Vs State of NCT of Delhi, on 1 July 2019

(Delhi High court) passed in CRL. REVP. 569/2017 & Crl.

M.A.12469 of 2017, sections 307/186/353/332/34 IPC.

(ii) Daulat Ram Vs State of Punjab, 25 January 1962 (Supreme

court)
(iii) Gurinder Singh Vs State, 23 May 1996, Delhi High court,

(iv) Saloni Arora Vs State of NCT of Delhi, 10 th Jan.2017

(Supreme court) Criminal appeal no. 64 of 2017 arising

out of SLP Crl. No.8184 of 2015.

(v) Mohan Kukreja vs The State of NCT Delhi and others, 8

January 2019, Delhi High court,

(vi) State Vs Sunil Kumar, Delhi District court, 6 March

2012, Sh. Surender Singh Rathee, Tis Hazari courts,

Delhi, section 307/353/186 IPC 25/27 Arms Act

(vii) Sachin Khurana Vs state, 22 Sept 2014, Sh. Narinder

Kumar, Additional Sessions Judge, Delhi, criminal appeal

no. 62/2014.

(viii) State Vs Sunil Kumar and others, 6 March 2012, passed

by the court of Sh. Surinder S Rathi, ASJ, Tis Hazari

courts, Delhi, u/s 307/353/186/411/34 IPC, 25/27 Arms

Act.

4- That the charge has been framed against the accused by the court

is in the mechanical mechanism, while no charge as alleged is

made out against the accused in the absence compliance of

complaint under section 195 CrPC.

5- That Site plan prepared by Draftsman Sumit Kumar which is

Ex.__, when all the four police party personnel were standing at

point “A”, then the occurrence of offense at point “B” does not arise

as on Point “B” no police personnel was standing. A site plan is a

vital part to decide that whether the occurrence has been

committed by the accused or not? Moreover, the site plan does not

show the exact picture of the case as there is no existence of any

barricades used, light on the road, govt. the vehicle was where
 standing, police party personnel were where standing, how much

barricades were used by the police party, absence of these facts

creates doubt upon the version of the prosecution, so benefits of

doubt ought to have given to the accused.

6- That the prosecution has produced two-star witnesses in this case

PW-1 Suresh Kumar S.I.-Complainant and PW-2 Yamin-HC. In the

complaint, FIR and chief examination of these both witnesses,

nowhere it is stated that any criminal force, assault or obstruction

in which manner have been caused by the accused. So the

ingredients laid down under section 353 IPC missing in this case

and have been proved by the prosecution. When no criminal force,

the assault has been used in performing of duty by police, hence no

case u/s 353 IPC is made out.

7- That the material available on the record of the case file and chief

and cross-examinations of PW-1 and PW-2 shows that story set up

by the prosecution is based upon imagine manner, as a vehicle –

the car did not run over any police party personnel neither hit the

barricades, no injury to any police party and mere saying only that

accused tried to run over the car over the police party does not

tantamount occurrence of section 307 IPC. There is no injury, no

MLR, no medical doctor opinion. Intention and knowledge have

not been proved by the prosecution against the accused. To

constitute section 307 IPC, act on the part of the accused must be

material, not a consequence or irrespective. There was no intention

to kill the police party by the accused nor they were known to the

police party neither same have been proved by the prosecution.

While the accused have their clear past and respectable citizens of

India, married person having their minor children and old parents
 and were returning to their houses. So Ingredients of section 307

IPC are missing in this case hence no case u/s 307 IPC is made

out.

8- That police got Medical examinations of the accused at GH, Rohtak

but not produced the same with the challan before the court, which

creates doubt upon the version of the prosecution, so benefit of

doubt ought to have been given to the accused.

9- That as and when Naka is ever held by the police party on the

public road, in this event police party used to stand inside

the barricades used, so the question of trying run over the

police party by the accused does not arise at all. The police

party also did not try to chase the car and the accused shows

that no alleged occurrence has taken place on the night of

31.12.2018.

10-That the prosecution gave up another two personnel of police party

Anil-HC and Sandeep-HG, so benefit of doubt ought to have given

to the accused.

Contradictions:-

11-That as per the site plan exhibited the police party was

standing at one point A while as per the statement of the PW-

1 Suresh Kumar and PW-2 Yamin, SI Suresh Kumar along

with HC Anil was sanding one side of the road and HC Yamin

and HG Sunil Kumar were standing on another side of the

road. So in this manner, the true picture has not been seen

by the prosecution which creates doubt on the version of the

prosecution.
12-That Investigating officer after recording the statement u/s 161

CrPC found that car has been run over the complainant has added

the section 114 IPC is unjustifiable.

13- That statements recorded under section 161 CrPC and version

made by the complainant in his complaint and FIR are

contradictory. As per statement recorded under section 161 CrPC

in which it has been mentioned that car was run over the paw of

ASI but this fact has not been mentioned by the complainant SI

Suresh Kumar in his complaint nor the same is mentioned in FIR.

PW-2 Yamin stated before the court in the first line of the page

no. 9 that tires of the car did not run over the paws of SI

Suresh Kumar. Inline no. 20 on page no. 2 SI Suresh Kumar

self-stated in cross-examination that car did not hit the

barricades. Statement of u/s 161 CrPC of HC Yamin, HGH Sunil

Kumar, and HC Anil Kumar are self-contradictory with each other.

14- That SI Suresh Kumar PW-1 has stated in line no. 21 & 22 on

page no.2 in his cross-examination Ex.PA was written by him at

11.50 PM putting the paper on seat of the motorcycle while HC

Yamin PW-2 stated in his cross-examination that complaint was

written by the SI Suresh at the spot on sitting over the chair.

15-That PW-1 Suresh Kumar stated in his cross-examination that ASI

Parkash Chand had left the spot before 4 .00 a.m. at page no.3 line

16 & 17, while PW-7 Parkash Chand IO stated in his cross-

examination that he has arrested the accused at 2.00 a.m. in line

no.17 at page no.17, while PW-2 Yamin stated in his cross-

examination in chief that his statement has been recorded at

Kanheli road at 3.30 A.M. which is line no.16 at page no.6.

16-That from the bare perusal of the FIR time of registration of FIR is

shown as 1.30 A.M. but PW-7 Parkash Chand IO stated in his

examination in chief on page no. 16 inline no. 8 that I reached the

spot at about 1.20 a.m. PW-2 Yamin has also stated in his cross-

examination on page no.6 in line no.15 that Investigating officer

recorded his first statement at the spot at 2.30 A.M.

17-That PW-1 & PW-2 stated in their cross-examination that I.O.

reached at the spot 2.00 A.M, while IO stated that he reached at

the spot at 1.20 a.m.

18-That PW-7 Parkash Chand IO stated in his cross-examination in

chief he was present at the spot 40 minutes and he got recorded

the statement of HC Yamin, HGH Sunil Kumar, and HC Anil

through HC Yamin on Laptop at the spot and Laptop was with the

HC Yamin and statements were printed in the police station which

is mentioned at page no.16 in last 6 lines, while PW—2 Yamin in

his statement stated that at page no.6 at last three lines that ASI

Parkash Chand was having a laptop and printer in his car and he

had printed out the print at the spot by using the socket in the car.

19-That PW-2 HC Yamin stated that IO Parkash Chand reached at the

spot in his car, while PW7 Parkash Chand IO stated in his cross-

examination that he stated that he went to the spot at PCR no.10.

20-That PW-1 stated in his cross-examination on page no. 2 line no.2

that he left the police post in the vehicle no. HR-12Z-0479 but PW-

2 at page no.8 line no. 2 & 3 stated that Suresh Kumar SI and HC

Anil Kumar left the police post on govt. motor cycle.

21- That ASI Parkash Chand reached a spot at 2.00 P.M and had left

the spot before 4.00 a.m. as per the statement of Complainant SI

Suresh.
22-That NO TIP was conducted in this case by the I.O.

23-That HC Yamin PW2 stated that he was not specifically appointed

by the department for typing work. While he has carried out the

type work at the spot as per his statement and he had recorded

himself his statement u/s 161 CrPC which is not admissible in

evidence. He further submitted that proceeding at Kanheli road was

concluded at about 3.15 A.M. Further submitted that recovered

car was brought to the police station by HC Anil page no.7 last 4 th

line and PW7 IO stated at page no. 17 last line last 3 & 4 lines

that car was brought by him by driving the same in the police

station.

24- That the statement of PW-4 EASI Ranbir Singh is not permissible

in evidence as he has stated that I have not brought register no.19

today in the court so affidavit Ex.PD is not permissible in evidence

as per the Indian Evidence Act.

25-That Ex.PE submitted by PW-6 HC Ravinder no.952 is not

permissible in evidence as he in his cross-examination stated that

Ex.PE does not bear his signature and there is no mention of

memo/letter no. Ex.PE.

26-That the police have breached the provision laid down u/s 100 (4)

CrPC and did not make any attempt to join public witness and no

explanation has been given in this regard and all the witnesses are

police officials which cast doubt upon the creditworthiness of the

version of police. So adverse influence ought to have drawn against

the prosecution.

27-As the Incident is of 11.00 PM, the complaint is 11.50 PM, DD

entry 1.05 AM, FIR 1.30 AM, IO reached the spot, 2.00, carried his

paperwork till 2.30 AM, Arrest Memo is 3.00 PM. there is a

 difference in this period about 4.00 hours. Kanheli road was from

the accused and is apprehended is only a distance of about 2/3

minutes. This creates doubt upon the proceeding of the

prosecution.

28-That on 31.12.2018 there was extremely cold and visibility in the

night due to cold and fog was low. If the barricades were used by

the police party, so it was less possible to ran away at a fast speed

from the spot.

29- That police party does not try to chase out the accused and PW-1

& PW-2 admitted in their cross-examinations that they did not any

efforts to chase the accused, which creates doubt upon the version

put forth by the prosecution.

30-That all the police personnel have been shown on Naka duty in the

document only, but in fact, on 31.12.2018 at 11.00 PM there was

no Nakabandi was held nor the police personnel were on public

duty at Jhajjar Chungi Chowk, the whole story put up by the

prosecution is untrustworthy and falsely implicated the innocent

person in this case.

31-That the accused persons are a responsible and law-abiding citizen

of India. They are serving in a reputed Finance company. On

31.12.2018, it was the closing day of the month and they after

performing their duty were returning to their house in a car with

cash collected by them and laptops and mobiles. When they were

near the way to their house at Sheetal Nagar, Jhajjar Road,

Rohtak, one police vehicle came and stopped them and asked to

hand over the key of the car, when they objected and asked the

reason, then police official by using official power and malafide

intention falsely implicate them in this case, while they are quite
 innocent. The accused are having their clean past and having their

family and kids. Accused are the residents of Sheetal Nagar, Rohak

which is just away 2/3 minutes distance from Jhajjar Chungi.

It is, therefore, prayed that on the material available on the

record of the case file and evidence produced by the prosecution,

the prosecution has fully failed to prove its case. Compliance of

section 195 is missing in this case to establish the section 353/186

IPC. Ingredients of section 307 IPC have not been proved. Accused

has not committed the alleged offense u/s 353/186/511/307/114

IPC, So benefits of doubt should be given to the accused

It is, therefore, humbly prayed that the accused may kindly

be acquitted from the charges leveled against them by giving

benefits of doubts in the larger interest of justice.

Atul kumar Goyal, Advocate

Defence counsel of accused Narender

and Vijay