Delhi District Court
State vs . Panna Lal And Others on 16 December, 2015
IN THE COURT OF SH. DHIRENDRA RANA: METROPOLITAN
MAGISTRATE02/WEST : DELHI
FIR No. 1210/1999
STATE Vs. Panna Lal and others
U/SEC : 332/353/34 IPC and 61 Excise Act
PS Rajouri Garden Delhi
Unique Case ID Number : 02401R0201682000
JUDGMENT
Serial No. of the case 454/II/00
Date of commission of offence 31.12.1999
Date of institution of the case 06.03.2000
Name of the complainant Ct. Joginder
Name of accused, parentage & 1.) Panna Lal S/o Sh. Om Prakash R/o
address H. No. 12, Jagan Nath Vihar, Panipat,
Haryana.
2.) Ashok Kumar S/o Sh. Om Prakash
R/o 467/11, Panipat, Haryana.
3.) Sarvan Kumar S/o Sh. Jagdish
Prasad R/o 466/11, Panipat, Haryana.
4.) Jitender Pal Singh S/o Sh. Amrit
Singh R/o 27J, Jamrud Pur, Kailash
Colony, Delhi.
5.) Raghuvinder Singh S/o Sh. K. S.
Gill
Offence complained Sec 332/353/34 IPC & 61 Excise Act
Plea of the accused Pleaded not guilty
Date of arguments 16.12.2015
Final order Acquitted
Date of Judgment 16.12.2015
FIR No. 1210/1999 PS Rajouri Garden Page No. 1 of 13
1. Vide this judgment I shall dispose off the present case filed by Inspector Balraj Singh Dahiya (hereinafter referred as IO) on the complaint of Ct. Joginder (hereinafter referred as complainant) against Panna Lal, Ashok Kumar, Sarvan Kumar and Jitender (hereinafter referred as accused) for committing offences under section 332/353/34 of Indian Penal Code (hereinafter referred as IPC) and against Raghuvinder Singh Gill under section 61 of Excise Act (hereinafter referred as Act).
BRIEF FACTS:
2. Briefly stated facts of the case are that on 31.12.1999 a New Year Party was going on at banquet Hall namely 'Gill House'. PW3 Ct. Joginder Singh was on duty at Gill House, Rajouri Garden. At about 09:45 PM when PW3 went inside the Banquet Hall and he saw that accused R. S. Gill was serving liquor from a Mayur Jug to the guests present in the party. PW3 had the instructions from the senior officials not to allow serving of liquor without any license in such parties. When he objected of serving the liquor by R. S. Gill and tried to seize the Mayur jug allegedly filled with alcohol, accused Jitender Pal Singh, Sarvan Kumar, Panna Lal and Ashok Kumar started assaulting PW3 and they also tried to snatch the Mayur Jug from the possession of PW3.
Meanwhile, at about 09:50 PM PW9 Inspector Satender Vashisht FIR No. 1210/1999 PS Rajouri Garden Page No. 2 of 13 alongwith PW9 SHO Balraj Singh Dahiya, PW4 SI Vinay Malik, PW6 HC Paramjeet, PW1 Ct. Bhupender and PW8 WHC Poonam Tyagi, who were on patrolling duty, reached near Gill House and saw that accused persons namely Jitender Pal Singh, Sarvan Kumar, Panna Lal and Ashok Kumar were manhandling Ct. Joginder. IO alongwith police officials overpowered the accused persons. IO recorded the statement of complainant which is Ex. PW3/A. PW3 produced the Mayur Jug filled with liquor to the IO and IO seized the same vide seizure memo which is Ex. PW1/A after measuring the liquor and uniform of Ct. Joginder vide seizure memo which is Ex. PW1/B. IO filled up Form M29, prepared rukka which is Ex. PW9/A and handed over the same to Ct. Bhupender, who went to PS and got the FIR registered. IO prepared site plan which is Ex. PW9/B. Ct. Bhupender came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO arrested the accused persons and conducted their personal search vide personal search memos which are Ex. PW9/C, Ex. PW9/D, Ex. PW9/E and Ex. PW9/F. On 07.01.2000, IO arrested the accused R. S. Gill and released him on bail. IO also obtained complaint under section 195 CrPC from ACP concerned.
3. After completion of investigation, charge sheet was filed under section 186/332/353/34 IPC against accused persons Panna Lal, Ashok, Sarvan FIR No. 1210/1999 PS Rajouri Garden Page No. 3 of 13 and Jitender whereas separate charge sheet under section 61 Excise Act was filed against accused R. S. Gill on 06.03.2000. Both charge sheet were clubbed by my Ld. Predecessor vide order dated 25.09.2004. An application under section 321 CrPC for withdrawal of prosecution was moved and dismissed by my Ld. Predecessor on 25.09.2004. Charge for offence under section 61 Excise Act was framed against accused R. S. Gill and charge for offences under section 332/353/34 IPC was framed against accused Panna Lal, Ashok Kumar, Sarvan Kumar and Jitender on 13.08.2010 to which they pleaded not guilty and claimed trial. Accused were not charged under section 186 IPC for want of proper complaint under section 195 CrPC. Thereafter, matter was put up for prosecution evidence.
EVIDENCE RECORDED DURING TRIAL:
4. Prosecution has examined twelve witnesses to prove its case against the accused persons.
5. PW1 Ct. Bhupender, PW4 Inspector Vinay Malik, PW6 SI Paramjeet Singh, PW8 W/ASI Poonam Tyagi and PW9 Balraj Singh Dahiya, ACP (then SHO) are the eye witnesses of the incident and accompanied the IO. They deposed on the lines of prosecution case and investigation being carried out by IO in their presence.
6. PW2 SI Sanjay Kumar being the duty officer exhibited FIR as Ex. PW2/A and endorsement on rukka as Ex. PW2/B. FIR No. 1210/1999 PS Rajouri Garden Page No. 4 of 13
7. PW3 Ct. Joginder Singh is the complainant and he deposed on the lines of prosecution case.
8. PW5 HC Ravel took the accused persons to DDU Hospital and got them medically examined.
9. PW7 Ct. Amarjeet deposited the sample of illicit liquor with Excise Lab.
10. PW10 Retd. ASI Mohan Singh deposited the case property in malkhana vide entry No. 5220 in register No. 19 which is Ex. PW10/A.
11. PW11 Dr. Ajay Sharma exhibited MLC No. 0010 as Ex. PW11/A of complainant on behalf of Dr. Ajit Roy.
12.PW Inspector Satender Vashisht has inadvertently been examined as PW9 instead of PW12. He is the IO in this case and deposed about the investigation being carried out by him in this case.
13.Thereafter, prosecution evidence was closed vide order dated 24.09.2015. Statement of accused under section 313 CrPC were recorded on 28.10.2015 in which all the incriminating evidence was put to them to which they denied in toto and stated that they were falsely implicated. Accused R. S. Gill further stated that he did not grease the palm of SHO, who demanded bribe from him about 23 days of date of incident for running party on the eve of New Year and he threatened him to implicate in the case and no such incident had happened as stated by PWs. Accused R. S. Gill and Jitender Pal Singh opted not to FIR No. 1210/1999 PS Rajouri Garden Page No. 5 of 13 lead defence evidence whereas accused Ashok Kumar, Sarvan Kumar and Panna Lal opted to lead defence evidence. They have examined Sudhir Singhla as DW1 and Vinay Sagar Jain as DW2.
14. I have heard the final arguments put forth by ld. APP for the State and by Ld. defence counsel Sh. M. K. Gupta for accused Ashok Kumar, Sarvan Kumar and Panna Lal, Sh. Bakshish Singh Ld. counsel for accused Ravinder Singh Gill and Sh. S. S. Bakshi, Ld. counsel for accused Jitender Pal.
BRIEF REASONS FOR THE DECISION:
15.It is alleged against the accused R. S. Gill that he was serving liquor to the guests present in the party organized by him in "Gill House" on the eve of New Year and when the same was objected by complainant Ct. Joginder, remaining accused persons assaulted him and obstructed him in performance of his duty as public servant. Accused R. S. Gill is facing trial under section 61 Excise Act whereas accused Ashok, Sarvan, Panna Lal and Jitender are facing trial under section 332/353/34 IPC.
16. PW3 Ct. Joginder has stated that he was on duty at Gill House and he was being assaulted by accused persons except accused R. S. Gill and suddenly one police party comprising of SHO, WHC Poonam Tyagi, SI Vinay Malik, etc. arrived at Gill House and he was rescued by them. Now the question is who had informed the SHO about the incident FIR No. 1210/1999 PS Rajouri Garden Page No. 6 of 13 occurred with PW3 Ct. Joginder at Gill House. No concrete reply/explanation has been given by the PWs. It is admitted case of the prosecution that PW3 did not inform the police at number 100 and he also did not flash any message on wireless. PW4 SI Vinay Malik has stated that SHO has received a message at 09:45 PM qua the incident whereas PW12 SI Satender Vashisht has stated that the police party was on patrolling duty and they reached near Gill House and they saw that PW3 was being manhandled by the accused persons. PW12 has not stated anything about information which has been disclosed by PW4. In fact PW9 SHO Balraj Singh Dahiya has not disclosed as to how he came to know that an incident had occurred at Gill House. He himself has not stated that he received any information about Gill House. Therefore, all police officials involved in this case are not able to clarify as to how they reached at Gill House suddenly soon after the assault made by the accused persons. Surprisingly, police party reached in such a hurry that accused persons could not inflict any visible injury on the person of PW3. Therefore, the aspect of arrival of police party at 'Gill House' all of a sudden without any information, is under a serious scanner.
17. Secondly, as per case of the prosecution, PW3 was attacked by accused persons and they caught hold of him and also gave fist blows. PW3 has stated that his uniform shirt was seized by the IO in the PS on FIR No. 1210/1999 PS Rajouri Garden Page No. 7 of 13 01.01.2000 whereas PW12 IO has stated that he had seized the shirt on the spot. Perusal of the seizure memo of the shirt also bear date of 31.12.1999 which is contradictory to version of PW3 that his shirt was seized on 01.01.2000 in PS. I have also seen the seized uniform and it bears a broken name Plate of Ct. Joginder Singh. Now the question is if the uniform was seized at the spot by the IO then how come he was not able to seize the broken piece of the name plate. The shirt is in torn condition but it is torn from a portion from lower back area. When a person is being attacked by four persons and his uniform is being torn then it is highly unusual and unnatural that upper portion of the shirt i.e, collar, pockets, etc. would remain intact whereas the shirt got damaged from lower back portion area. PW4 SI Vinay Malik has stated that collar of the seized uniform were in torn condition which is contradictory to the evidence. PW3 has also stated that name plate and button of the shirt were broken which is again incorrect. It is stated by PWs that police had recovered one Mayur Jug filled with alcohol and some plastic glasses from the spot which were being used for consuming liquor. It is the case of the prosecution that Mayur Jug was containing alcohol in such a huge quantity that 18 bottles of 750 ml were filled. It is also case of the police that one quarter bottle of 180 ml was seized as a sample for the purpose of expert opinion. Prosecution has not produced those 18 bottles of 750 ml which were allegedly filled FIR No. 1210/1999 PS Rajouri Garden Page No. 8 of 13 by the police to support its version that Mayur Jug was filled with such a huge quantity of liquor. Alleged recovered plastic glasses were also not seized and have not been exhibited without any explanation. Only the quarter bottle was sent to the FSL for comparison. Therefore, prosecution has failed to substantiate its allegation that Mayur Jug was filled with huge quantity of liquor which was used at the party. The discrepancies left in the seizure of shirt, the version of PW3 that his shirt was seized in PS on the next day which is contradictory to the contents of seizure memo, non exhibition of 18 bottles of recovered liquor and non seizure of plastic glasses though recovered, when kept in consideration together there is huge doubt available in the case of the prosecution qua the seizure of case property.
18. It is admitted case of the prosecution that all accused persons who were apprehended at the spot except accused R. S. Gill were sent for medical examination in the custody of Ct. Ravel Singh at about 10:3011:00 PM on 31.12.1999. Prosecution has not brought on record the result of medical examination of the accused persons and no explanation is available with police officials as to why those MLCs have not been filed alongwith charge sheet. Meaning thereby, prosecution has withheld relevant evidence without any explanation and it supports the version of accused persons that they were not under the influence of liquor when they were apprehended. Otherwise, MLCs of the accused persons FIR No. 1210/1999 PS Rajouri Garden Page No. 9 of 13 would have been filed alongwith charge sheet to support the case that accused persons were having liquor being served by accused R. S. Gill.
19. Normally, when an offence is being committed and police reaches at the spot, then the first and foremost concern of the police is to get medically examined the injured/victim. The injured in this case is PW3 Ct. Joginder but he was sent for medical examination after 3 hours of medical examination of accused persons. As per contents of MLC of PW3 he was examined in DDU Hospital at 02:50 AM on 01.01.2000. Why it was done so that medical of accused persons were given importance than to medical of victim. This aspect also reflects that there might be some afterthought on the part of police officials and that is why PW3 was sent for medical examination subsequently.
20. It is the case of the prosecution that accused R. S. Gill escaped from the spot after arrival of the police party led by the SHO. When 56 police officials reached at the spot and they apprehended 4 accused persons then how come owner of the banquet hall R. S. Gill managed to escape from the spot. It is very unnatural and unusual that other accused persons were apprehended at the spot and R. S. Gill managed to flee away. It is also quite illogical that R. S. Gill was serving the liquor to the guests despite the fact that several waiters and servants were present in the banquet hall to serve the guests then why would R. S. Gill would serve the liquor despite the fact that he is the owner of the banquet hall. FIR No. 1210/1999 PS Rajouri Garden Page No. 10 of 13 The mere allegation against accused R. S. Gill is that he was standing near the table on which the alleged Mayur Jug was kept which is not sufficient to bring home the charge under section 61/1/14 against him.
21. PW1, PW3, PW4, PW5, PW6, PW8, PW9 and IO were present on the spot but they are not sure about the fact whether ACP and DCP concerned had reached on the spot or not on account of agitation being done by the public against the illegal detention of accused persons by the police. It is quite unbelievable that police officials of PS RG could not observe the presence of senior officials and depose before the court that ACP and DCP had reached on the spot. Some of the witnesses have stated that they cannot affirm or deny this fact. The confusion of the witnesses whether to deny or affirm the fact speaks volume about their role in this case and presence on the spot.
22.As per the prosecution's case it was the huge gathering at Gill House nearing about 300 persons but why not even a single person from public has been joined in the police proceedings to support its case. No explanation has been given by the IO or by any police official in this regard. Therefore, there is no corroboration of the version of the police official from an independent source. Law is settled in this regard that an adverse view shall be taken against the prosecution, if police has failed to join the independent witnesses in the police proceedings despite their availability and no efforts have been made to join them. Hence, absence FIR No. 1210/1999 PS Rajouri Garden Page No. 11 of 13 of public witnesses to support the incident of Gill House has also created a doubt in the version of prosecution's story.
23.Eye witnesses from police department are stating different timing of the police proceeding. PW3 which is the star witness of the police proceeding stated that he reached at Gill House at about 09:45 PM whereas in his cross examination he has stated that he reached at 08:00 PM. It is also interesting to observe that the departure entry of PW3 states that he left the PS at 07:30 PM whereas he has stated that he was on duty from 08:00 PM. Why would a person would join the duty half an hour earlier, it is beyond contemplation of this court. PW1 has stated that he took the rukka for registration of FIR at about 11:30 PM and he came back at the spot at about 01:00 AM whereas PW3 complainant has stated that PW1 returned back at the spot at about 12:15 AM. PW5 Ct. Ravel has stated that he reached at the spot around 10:00 PM but PW1, who was present at the spot alongwith SHO, is not sure that Ct. Ravel was present at Gill House at 10:00 PM. PW1 Ct. Bhupender has stated that he reached at Gill House with IO SI Satender Vashisht but SI Satender Vashisht has stated that he reached at the spot alongwith SHO in his government Gypsy. In nutshell, police officials are not sure about each others presence at the spot and they have deposed in such a manner that their depositions cannot be relied upon by this court to convict the accused persons.
FIR No. 1210/1999 PS Rajouri Garden Page No. 12 of 13
24.Therefore, considering the above discussion and material available on record, this court is of the considered view that prosecution has failed to prove its case against accused R. S. Gill for committing an offence under section 61/1/14 Excise Act and against accused Panna Lal, Ashok, Sarvan and Jitender for committing offences under section 332/353/34 IPC.
25.Accused persons have already furnished bail bonds under section 437A CrPC as per directions of Hon'ble High Court of Delhi ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA ON 16th DECEMBER, 2015 MM02/WEST DELHI FIR No. 1210/1999 PS Rajouri Garden Page No. 13 of 13