Legal Analysis Of Pahlukhan’s Acquittal Case By Mr. A. A. Ansari – Solicitor & Advocate

Lapses by the Police:

  1. When someone forcefully takes money from the victim it is called a robbery and not a theft, however the police have charged the accused with theft. It cannot be said that the Investigating Agency had no idea about difference between the theft and robbery (loot). Hence, the accused should have been charged for section 397 of IPC instead of section 379 of IPC. This shows that from the very beginning the intention was to facilitate the accused persons.
  2. In such serious cases, the charge sheet should have been filed with prior consultation of Public Prosecution who in experience in conducting such serious criminal trials. However, in this case no such efforts were made by the police agency. The government should have appointed Special Public Prosecutor to conduct such serious trial.
  3. It seems that the public prosecution was not vigilant throughout the trial. When the defense counsels were raising the questions of not sending the videos of incident to the FSL, the public prosecutor must have obtained the permission from the court and could has directed the IO to send the videos and photographs to the FSL. However, he remained silent to facilitate the accused persons.
  4. Documents no. 57 to 99 have been produced by the prosecution which are photographs and mobile details of incidents, however the Investigating Officer has accepted before the Court that he has neither verified the said documents by the FSL nor certificate under section 65-B of Indian Evidence Act was ever obtained.
  5. The accused persons were unknown to the victims but the Investigating Officer has not conducted the Test Identification Parade of the accused before Executive Magistrate, which shows great lethargy on the part of Investigating Officer.
  6. The Court has further noted the negligence of the IO Mr. Sinsinwan holding that the Dying Declaration was obtained on 1.4.2017 at around 11.30 however the same has been forwarded to the police station after the lapse of 16 hours but nothing observed against the erring Police Officer by the Trial Court.
  7. The IO has not disclosed in his deposition that when and how he received the video, through which medium he received it, the statement of photographer who developed the photos out of videos had turned hostile. Meaning thereby either the photographer was telling lie or the IO was telling lie on oath before the Court of Law but the Court has not taken any action against both.
  8. The mobile phone of witness Ravindra Yadav has been seized who stated in his police statement he recorded the incident. This independent witness must have pressurized but the police agency has not given any protection to him nor his statement was recorded before Magistrate so that he could not turn hostile. Resultantly, this witness has turned hostile and did not support the case of the prosecution and deposited before the court that he never recorded any such video clip. All other witnesses have turned hostile except the victims.

Lapses by Court:

  1. Court has relied more on minor discrepancies in the police statements and depositions.
  2. The Investigating Officer (IO) has discovered the weapons, motorcycles and mobile phones of the accused person which were used in the commission of crime in presence of independent panchas, IO confirmed the said aspect in his deposition before the Court of law, however the Court has not accepted the deposition of IO.
  3. The Court observed that the deposition of doctors who had conducted the post mortem of the deceased is more reliable. As the injuries found in the body of deceased are much more than the injuries noted by the doctors of hospital. The hospital doctors had opined that the death is due to cardiac arrest however the panel of post mortem doctors opined that the death is due to post death injuries only. And the court believed the version of panel post mortem doctors. This shows there are contradicting statements of doctors of different sides. Hence, when the Court comes to the conclusion that treating Doctors are lying on oath, the Court should have taken stern actions against such doctors.

Dubious role of the Doctors:

  1. The panel doctors who examined and were treating the deceased, deposed that his condition was not critical and he used to talk normally and hence he was not kept in ICU. However, the three panel Doctors who conducted the post mortem of deceased stated that all the ribs of both the sides were got fractured due to grievous injuries and he died because of such injuries.
  2. The panel doctors however stated that he died due to cardiac arrest.
  3. There is Dying Declaration written by a constable and dictated by Pahlukhan before the Investigating Officer. There is signature of Pahlukhan below it. The IO has deposed before the Court that in his presence the Dying Declaration was recorded. IO has further stated in his deposition that Dr. Akhil Saxena was present while recording the Dying Declaration however Dr. Saxena refused to attest the same. IO made complaint of it with Hospital Superintendent Dr. Sham Sunder Sharma about non-attesting of victim’s statement by Dr. AkhilSaxena, the Superintendent called for Dr. Saxena but again Dr. Saxena refused to attest the Dying Declaration of victim. A very serious and deliberate duty failure of Dr. Saxena who even failed to co-operate with the Investigation. However, the Government took no steps against such erring Doctor neither the Hospital has taken any action against him.
  4. The Court observed that the deposition of doctors who had conducted the post mortem of the deceased is more reliable. As the injuries found in the body of deceased are much more than the injuries noted by the doctors of hospital. The hospital doctors had opined that the death is due to cardiac arrest however the panel of post mortem doctors opined that the death is due to post death injuries only. And the court believed the version of panel post mortem doctors. This shows there are contradicting statements of doctors of different sides. Hence, when the Court comes to the conclusion that treating Doctors are lying on oath, the Court should have taken stern actions against such doctors.
  5. The certificate of fitness for recording the Dying Declaration of the deceasedissued by the Doctor. But, throughout their depositions Doctors have maintained that the condition of deceased was quite normal and he was asking for leave. Surprisingly, the court also noted that DD is obtained after five hours, I don’t know what difference it will make. The court also noted that the deceased was admitted into the hospital with serious injuries and the IO has not obtained the certificate of fitness from the doctor, which is serious lapse in Investigation. So, it can be considered as serious lapse of the Doctors in line of duty.

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