Delhi District Court
State vs . Mukhiya Gujjar on 29 November, 2018
1
IN THE COURT OF Ms. SHIVALI SHARMA
.
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 495/04
PS : Kalyan Puri
U/s : 147/149 IPC & Section 3 (1) of Prevention of Damage to Public
Property Act, 1984 (PDPP Act)
STATE Vs. Mukhiya Gujjar
JUDGMENT
A Unique ID No. of the case Cr. Case 9453/16
B Name of the complainant Alok Tiwari (J.E)
C Name of the accused & his Mukhiya Gujjar S/o Maam Raj Singh parentage and address R/o E-6/18, Krishna Nagar, Delhi D Offence Complained of U/s 147/149 IPC & Section 3 (1) of Prevention of Damage to Public Property Act, 1984 (PDPP Act) E Date of commission of 20/10/2004 offence.
F Date of Institution 04/01/2006
G Offence Charged U/s 147/149 IPC & Section 3 (1) of
Prevention of Damage to Public Property
Act, 1984 (PDPP Act)
H Plea of the accused Pleaded not guilty
I Order Reserved on 29/11/2018
J Date of Pronouncement 29/11/2018
K Final Order Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
PROSECUTION'S CASE
1 The story of the prosecution is that on 20/10/2004 at about 3.00 pm at
Gazipur Dairy Farm, Live Stock Market, on M.S. Gate within the jurisdiction of PS Kalyanpuri accused Mukhiya Gujjar with some other associates (who PAGE NO. 1/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 2 were not arrested) was a member of an unlawful assembly and in prosecution of common object of the said assembly that was to demolish the boundary wall and grill on M.S Gate, they used force and violence for demolishing the wall and grill which was a public property belonging to MCD. Thereby, he is alleged to have committed offences U/s 147 r/w section 149 IPC and section 3 (1) of PDPP Act.
NOTICE 2 After investigation, charge-sheet under section 173 Cr. P.C was filed on 04/01/2006 u/s U/s 147 r/w section 149 IPC and section 3 (1) of PDPP Act. 3 On the basis of the charge-sheet and after compliance of Sec. 207 Cr.P.C., a charge for the offences punishable under section U/s 147 r/w section 149 IPC and section 3 (1) of PDPP Act were framed against accused Mukhiya Gujjar and read out to him, to which he pleaded not guilty and claimed trial on 10/06/2008.
PROSECUTION EVIDENCE 4 To bring home the guilt against the accused, prosecution has examined 09 witnesses in all.
5 PW1 is the complainant Alok Tiwari who was an employee of South MCD.
He deposed that on 20/10/2004, he was posted at Project Shahdara, South MCD as Jr. Civil Engineer. He received a call from the site i.e Gazipur Live Stock Market that some mob was demolishing the bounday wall of the site and trying to stop the work at the site. He went to the site where he found that a portion of the bounday wall was demolished and the lock of the gate was also broken. On site inquiry it was revealed that one Mukhiya Gujjar alongwith some supporters had incited the crowd resulting in the said damage. He went to PS Kalyanpuri and made his complaint Ex. PW1/A. He had not seen the incident and could not identify the accused Mukhiya Gujjar.
PAGE NO. 2/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 3 6 PW2/Ct. Sheobir Singh deposed that on 20/10/2004 he alongwith SHO Additional SHO, SI Sansar Singh, Ct. Anil, Ct. Ajay, HC Prem Pal and other police officials were present on duty at Gali No. 5 and 6, near Slaughter House Gazipur Dairy Farm as some Dharna Pradarshan was going on organized by some political parties including Pathik Sena, Samajwadi Party and followers of the same were gathering there. The Dharna Pradarshan was organized for removing the Slaughter House from the said place. The public persons and other local political leaders were coming on the stage and making speeches against the policies of Delhi Government. Accused Mukhiya Gujjar also came on the stage alongwith his supporters and delivered provocative speech on the stage and damaged the wall of the Slaughter House and removed the grill fastened there. When the police interfered in the illegal activities of the accused, he alongwith his supporters ran away from the spot. As per the directions of the SHO, the spot was photographed. The banner of the party of the accused was seized and sealed with the seal of S.S. IO prepared the seizure memo Ex. PW2/A in his presence. IO also prepared the site plan of the spot. Public persons were asked to join the investigation but none of them agreed and went away. He identified the accused.
7 PW3/Ct. Dinesh Kumar deposed that on 29/10/04 he was on duty with SI Sansar Singh. On receiving information about the accused Mukhiya Gujjar, he alongwith IO/SI Sansar Singh went to PS Mandwali where they saw accused Mukhiya Gujjar sitting in the room alongwith his 3-4 friends. He informed the IO about the identification of the accused Mukhiya Gujjar. Thereafter, accused was arrested vide memo Ex. PW3/A and PW3/B. He identified the accused.
8 PW4/SI Shriniwas is a formal witness being the Duty Officer who proved the registration of the present FIR on 20/10/04. The copy of FIR is Ex. PW4/A and the endorsement made by him on the rukka is Ex. PW4/B. He also PAGE NO. 3/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 4 deposed that the FIR was marked to SI Sansar Singh for investigation and was handed over to Ct. Pawan for onward transmission to the IO. 9 PW5/Vinod Kumar is a photographer who deposed that on 20/10/04 he had taken the photographs of banners at Gazipur Dairy Farm at the instance of IO/SI Sansar Singh. The photographs are Ex. PW5/A. He also stated that the photographs and negatives were handed over to the IO but negatives are not on record.
10 PW6/Ct. Anil Kumar is another eye witness to the incident who deposed that on 20/10/04, he was on duty with SI Sansar Singh, HC Prem Pal, Ct. Satinder and Ct. Somvir at Slaughter House Gazipur Dairy Farm. The politicians were coming and addressing the crowd and delivering speeches. One banner mentioning "Delhi Virodhi Janhit Party" and name of Mukhiya Gujjar was also hanging there. Accused Mukhiya Gujjar delivered his speech to the public and in his speech he stated that he would not allow the construction of Slaughter House. While he was doing so he pushed the wall of the Slaughter House and the same fell down alongwith its grill. On the intervention of the police, accused fled away from the spot. SHO arrived at the spot and on his instructions photographs of the spot and banner were taken. The banner was sealed with the seal of SS and seized vide memo Ex. PW2/A. The statement of JE present at the spot was recorded on the basis of which IO prepared the rukka and sent the same for registration of the FIR. He identified the accused and the four photographs of the spot and banner which are Ex. PW5/A. He also identified the seized banner which is Ex. P-1. He also admitted that the IO had prepared the site plan at his instance. He stated that accused Mukhiya Gujjar and his associates have deliberately damaged the government property by breaking the wall of the Slaughter House.
11 PW7/Manish deposed that in the year 2004-2005, a Slaughter House was made at Gazipur. There was some quarrel between the people who were PAGE NO. 4/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 5 making the Slaughter House and the local residents who had Gaushala there. One day due to the quarrel the boundary wall of the Slaughter House was demolished by local residents and the entrance gate was also damaged. He failed to identify the accused as per the person who had demolished the wall. He was cross examined on behalf of the state. 12 In his cross examination he admitted that the contract of construction of Slaughter House was given to Rama Construction whose owner was Ram Niwas Gupta and the construction was going on the land which was under
MCD or PWD. He also admitted that at the time of incident he was working with Rama Construction Company and the work of constructing the bounday wall and the gate was done by the Company. However, he denied the fact that local residents had made a makeshift tent near the Slaughter House and were protesting against the same. He also denied the presence of accused Mukhiya Gujjar at the spot on the day of the incident. Although he admitted that he was present inside the Slaughter House at the time of the incident.
13 PW8/Retired SI Sansar Singh is the IO of the case who deposed that on 20/10/04, he alongwith Additional SHO/Inspector Dharmender, SHO Parvesh Chobey and other police staff i.e Ct. Sheovir Singh/PW2, Ct. Dinesh, Ct. Anil Kumar/PW6 and others were present at Slaughter House Gazipur where accused Mukhiya Gujjar alongwith his companions were demonstrating against MCD as construction of Slaughter House was going on. Accused was shouting slogans and had camped a tent at the spot. There were banners held by the crowd. Accused alongwith his companions pushed the boundary wall of the Slaughter House and caused the grill to fall on the ground. Thereafter they ran away from the spot. Photographer was called at the spot and photograph Ex. PW5/A were got clicked. Alok Tiwari from Shahdara MCD made a complaint Ex. PW1/A to the SHO on the basis of which FIR was registered and the investigation was marked to him. He PAGE NO. 5/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 6 seized the cloth banner in the name of the accused and his party and sealed it with the seal of SS. It was taken into police possession vide memo Ex. PW2/A. He prepared the site plan Ex. PW8/A. He recorded the statement of witnesses. On 29/10/04, accused was arrested and personally searched vide memo Ex. PW3/A & B at PS Mandawali on the identification of Ct. Dinesh.
14 PW9/Retired ACP Dharmender Kumar deposed that on 20/10/04 he was additional SHO, P.S Kalyanpuri. At about 4.15 pm, he was presented a letter from Project Manager Alok Tiwari, Engineering Department regarding dismantling of some portion of wall and gate of Gazipur Slaughter House. He forwarded the said letter to the DO with direction to register FIR. His endorsement on complaint Ex. PW1/A is Ex. PW9/A. STATEMENT OF ACCUSED.
15 Statement of accused Mukhiya Gujjar was recorded u/s 313 Cr.P.C. on 05/11/2018, wherein all the incriminating evidence was put to him. He denied all the allegations made against him and stated that he was innocent and falsely implicated in this case.
DEFENCE EVIDENCE 16 The accused did not examined any witness in support of his defence. 17 Final arguments have been heard. Record carefully perused.
JUDICIAL RESOLUTION 18 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to PAGE NO. 6/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 7 disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 19 The accused has been charged for the offence U/s 147 r/w 149 IPC and section 3 (1) of PDPP Act.
20 Section 147 IPC provides punishment for rioting. The offence of rioting is defined in Section 146 IPC as per which whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of common object of such assembly, every member of such assembly is guilty of the offence of rioting. Section 149 IPC also makes every member of unlawful assembly guilty of offences committed in, prosecution of common object.
21 The term unlawful assembly is defined in Section 141 IPC which is reproduced herein under:-
Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -
First - To overawe by criminal force, or show of criminal force [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water and other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or PAGE NO. 7/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 8 Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
22 In order to procure conviction for the offence of rioting the prosecution must prove that;
(i) Five or more persons were assembled.
(ii) Such assembly was unlawful when it was convened or subsequently became unlawful, having any one of the five objects specified in section 141 IPC.
(iii) Such object was the common object of those composing such assembly.
(iv) The accused or any member of such unlawful assembly used force or violence and
(v) Such force or violence was used in prosecution of such common object. 23 Section 3 (1) of PDPP Act provides punishment for committing mischief causing damage to public property.
24 In the present case, the only witnesses to the incident examined by the prosecution who are supporting the case of the prosecution are police witnesses I.e PW2, PW6 and PW8. The complainant Alok Tiwari who is an employee of MCD had specifically stated that he is not an eye witness to the incident and had reached the spot after he was informed about the incident. The public witness examined by the prosecution namely Manish/PW7 is completely hostile and has not deposed anything about the accused despite cross examination by Ld. APP for the State. In these circumstances before the accused can be convicted it is essential to carefully scrutinize the testimony of police witnesses PW2, PW6 and PW8. 25 The first allegation of the prosecution is that the accused Mukhiya Gujjar PAGE NO. 8/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 9 was a member of an assembly that had gathered at the spot for a Dharna Pradarshan for removal of Slaughter House at Gazipur Dairy Farm. The other allegation is that during the Pradarshan the assembly became unlawful when accused alongwith his associates delivered provocative speeches on the stage and damaged the wall of the Slaughter House and removed the grill fastened there thereby causing damage to public property. 26 Interestingly, prosecution has not proved on record any document to show that the property to which the damage was caused by the accused and his associates in prosecution of the common object of the unlawful assembly was a public property. No witness has been examined from MCD or PWD nor any record has been summoned for proving the said fact. Even the witnesses from the company to which the construction work was handed over by MCD have not been summoned alongwith the record regarding construction contract/job work for construction. Accordingly, there is nothing on record to show that the property to which damage has allegedly been caused was a public property.
27 Admittedly on the date of the incident I.e 20/10/04 construction was going on at the spot. It is the allegation of the prosecution that the accused had damaged the boundary wall of the Slaughter House and removed the grill fastened. However the photographs that have been proved as Ex. PW5/A do not show any such damage. They appear to be photographs of partly constructed boundary wall. The photographs also do not show any removed grill lying at the spot. In the photographs it only appears that the area is under construction. Moreover, there is no evidence on record either documentary or ocular by any witness to prove the level of construction that had already undertaken on the spot. There is no document or testimony to prove that the boundary wall of Slaughter House was completely constructed and the grill was affixed prior to the incident. Accordingly, the evidence on record is highly insufficient to hold that the boundary wall of the PAGE NO. 9/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 10 Slaughter House was damaged and the grill was removed on the date of the incident as the status of construction of the said boundary wall prior to the date of the incident is not on record.
28 In addition, as per the testimony of PW2 the boundary wall of the Slaughter House was damaged and the grill was removed by accused Mukhiya Gujjar and his associates. However, as per the testimony of PW6, accused Mukhiya Gujjar while giving his speech had pushed the wall of the Slaughter House and the same fell down alongwith the grill. He has not mentioned the presence of any associate with accused Mukhiya Gujjar at that time. PW8 on the other hand deposed that accused alongwith his companions had pushed the boundary around the Slaughter House causing the grill to fall down. Thus, as per his deposition there was no damage to the wall except the falling of the grill. However, PW8 in his cross examination testified that on pushing of the wall by the accused both the grill as well as wall had fallen which is contradictory to the photographs Ex. PW5/A. Thus, there are contradictions in the version of these eye witnesses as regard the details of the incident that had occurred on the date of the incident at the spot.
29 Moreover, all these three witnesses have admitted that the boundary wall of the Slaughter House was constructed with bricks and cement. It is also an admitted fact that the accused had not used any instrument like hammer etc. for damaging the wall. In what manner the accused had damaged a wall built up with bricks and cement with his bare hands has not been explained by any of the prosecution witness. As pointed out above even the photograph of the spot proved as Ex. PW5/A do not show any damage to the boundary wall. The removed grill is neither shown in the photograph of the spot not taken into police possession for the reasons best known to the IO himself.
30 It is also interesting to note that as per the testimony of prosecution PAGE NO. 10/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar 11 witnesses various workers were working inside the boundary wall of the Slaughter House at the time of the incident. However, not even a single independent witness has been examined by the IO. The reasons for non- examination of independent public witnesses despite their presence has remained unexplained. As per the testimony of PW2 and PW8 even the Additional SHO Dharmender Kumar who has been examined as PW9 was present at the time of the incident. The said fact is even admitted by PW9 but interestingly he has not deposed even a single word about the incident. 31 The above contradictions pointed out in the testimonies of alleged eye witnesses who are police officials when compared with the photographs of the spot are sufficient to cloud the entire case of the prosecution with doubt. The benefit of this doubt has to be given to the accused. 32 In the present case considering the over all evidence on record, non-
corroboration by any independent public witness as well as the non- collection of any documentary evidence regarding the construction at the spot or the fact that the property in question was a public property, I have no hesitation in holding that the prosecution has failed to prove the offences charged against the accused beyond any reasonable doubt. 33 The accused Mukhiya Gujjar is accordingly acquitted for offences U/s 147/149 IPC & Section 3 (1) of Prevention of Damage to Public Property Act, 1984 (PDPP Act) as framed against him giving him the Digitally signed by benefit of doubt. SHIVALI SHARMA SHIVALI Location: East District Karkardooma ANNOUNCED IN THE OPEN COURT SHARMA Courts Delhi Date: 2018.11.29 ON 29/11/2018 16:50:51 +0530 (SHIVALI SHARMA) CMM (EAST)/KKD/29/11/2018 Certified that this judgment contains 11 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/29/11/2018 PAGE NO. 11/11 FIR No. 495/04 PS Kalyanpuri State Vs. Mukhija Gujjar