Delhi District Court
State vs Himanshu Kumar on 17 January, 2025
IN THE COURT OF MS. NEETU SHARMA, ADDITIONAL
CHIEF JUDICIAL MAGISTRATE-01, TIS HAZARI COURT,
CENTRAL : DELHI.
STATE VS. HIMANSHU KUMAR
FIR No. 846/2023
PS Pahar Ganj
JUDGMENT
(a) Cr. Case No. 536/2024
(b) Date of offences 07.12.2023
(c) Complainant ASI SURESH KUNDU
(d) Accused HIMANSHU KUMAR S/o Lt.
Sh. Jagdish, R/o H. No. 4027,
Gali No. 02, Bagichi
Ramchander, Pahar Ganj,
Delhi.
(e) Offence Under Section u/s 4 (c) of The
Delhi Prevention of Touting &
Malpractice Against Tourist
Act, 2010
(f) Plea of accused person Pleaded not guilty.
(g) Final Order ACQUITTED
(h) Date of institution 10.01.2024
(i) Date when judgment was08.01.2025
reserved
(j) Date of judgment 17.01.2025
Cr. Case No. 536/2024
PS Pahar Ganj
FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 1/9
1. Vide this judgment; I shall decide the final outcome in the FIR No. 536/2024, registered at Police Station: Paharganj, wherein alleging the commission of the offence punishable under section U/s 4 (c) of The Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010 (shall be referred to as 'DPT & MAT Act' in short).
PROSECUTION CASE
2. The prosecution case, in brief, is that on 07.12.2023, at about 04:00 PM, at DBG Road, Near Gali Hari Mandir, Pahar Ganj, Delhi, within the jurisdiction of PS Pahargnj, Delhi, accused was found touting Indian and Foreign tourists by offering hotel and taxi at cheap rates. Hence, the instant FIR was registered against accused.
3. Investigation was conducted. Upon completion of investigation, charge-sheet was filed in the Court on 10.01.2024, against accused for the alleged commission of the offence punishable under Section 4 (c) of the Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010. Three witnesses were cited to be examined to prove its case by the prosecution.
4. On 10.01.2024, cognizance of offence was taken and the accused person was summoned. Accused put in an appearance in the Court. Copy of charge-sheet was supplied to him.
Cr. Case No. 536/2024PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 2/9 NOTICE
5. On 07.03.2024, Notice in terms of section 251 CrPC was served upon the accused for the alleged commission of the offence punishable under Section 4 (c) of the Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010, to which he pleaded not guilty and claimed trial.
ADMISSION AND DENIAL STATEMENT OF THE ACCUSED IN TERMS OF PROVISION OF SECTION 294 CrPC
6. The accused person has admitted the genuiness of the instant FIR, Endorsement on rukka and Certificate U/s 65B of Indian Evidence Act, marked as Ex. A1, Ex. A2 and Ex. A3. Therefore, the name of DO/ASI Sanjay Kumar, who was the duty officer and registered the instant FIR, was dropped from the list of witnesses.
WITNESSES EXAMINED BY THE PROSECUTION
7. ASI Vikesh Kumar as PW1, ASI Bittu Tomar examined as PW2 and ASI Suresh Kundu was examined as PW3. Prosecution evidence was closed vide order dated 08.01.2025.
STATEMENT OF THE ACCUSED PERSON
8. Statement of the accused person has been recorded in terms of provisions of section 313 r/w 281, Cr.PC. He stated that he is innocent and falsely implicated in the present case. He opted not to lead evidence.
Cr. Case No. 536/2024PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 3/9 FINAL ARGUMENTS
9. Final arguments have been heard. Records have been perused and considered.
10. Ld APP for the State has argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State has also argued that the factum of the accused touting has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, Ld Counsel for accused has submitted that he is innocent and has been falsely implicated. The Ld Counsel has also submitted that the alleged incident took place on a public place but no public witness has been joined and the prosecution has failed to prove the case beyond reasonable doubt. With these submissions, Ld. Counsel has prayed for acquittal of the accused.
PROSECUTION EVIDENCE
11. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
12. As deposed by PW1/ASI Vikesh Kumar, on 07.12.2023, present case was assigned to him. He collected the copy of FIR and original rukka from PW2 and went to the spot. At the spot, he met accused and PW3. Thereafter, Cr. Case No. 536/2024 PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 4/9 he prepared site plan of the spot, Ex. PW1/A and interrogated the accused and after interrogation of accused, notice U/s 41A Cr.PC was served upon the accused,Ex. PW1/B and accused was bound down vide pabandinama, Ex. PW1/C. During investigation, he recorded the statement of witnesses U/s 161 Cr.P.C. After completion of investigation, he filed charge-sheet before the Court.
13. As broadly testified by PW2/ASI Bittu Tomar and PW3/ASI Suresh Kundu, on 07.12.2023, they were on patrolling duty and when patrolling they reached at DBG Road, Near Gali Hari Mandi, Pahar Ganj, Delhi, at about 04:00 PM, they saw that Manoj was inducing Indian and Foreign tourists to provide food and taxi at cheap rate and the tourists were getting annoyed by the act of the accused. PW3 told the accused not to do so and asked the tourist to give the written complaint against the accused but they did not give any complaint against the accused and left the spot without disclosing their names and addresses. PW3 prepared rukka, Ex. PW3/A. PW3 handed over the rukka to PW2 for registration of FIR. After registration of FIR, the investigation was marked over to ASI Vikesh Kumar. EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE AND BRIEF REASON FOR THE DECISION Cr. Case No. 536/2024 PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 5/9
14. It is a settled proposition of criminal law that the prosecution is required to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence that in order to prove its case, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
15. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
16. In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the fate of the present case.
17. The PW2 and PW3 are is the eye witnesses to the alleged incident as per the case of the prosecution. Whereas PW1/ASI Vikesh Kumar carried out the investigation after the registration of the instant FIR and he had not seen the occurence of the alleged incident. Therefore, the testimony of PW2 and PW3 is more relevant to decide the guilt or innocence of the accused.
Cr. Case No. 536/2024PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 6/9
18. The case of the prosecution is that the accused was touting the tourist. Thus, the victims of the crime were the tourists who were allegedly being touted by the accused. The victim was in better position to depose as to what had happened with her/him. Pertinently, neither any victim has been cited as a witness nor examined by the prosecution. Had any of the victims been examined the accused would have got the opportunity to cross examine the victim and truth could be elicited on record. The accused has been deprived of this opportunity. For not examining any victim, no plausible explanation has been offered by the prosecution which evokes a suspicion to the case of prosecution.
19. Further, evidently, neither any public witness has been cited in the list of witnesses or examined by the prosecution. The alleged incident of touting is stated to have taken place on a public place i.e DBG Road, Near Gali Hari Mandi, Paharganj, Delhi within the jurisdiction of Paharganj that too at about 04:00 PM, Delhi. It is not the case of the prosecution that no public person was available on the spot. In the absence of the examination of the victim, the testimony of the police witnesses needs corroboration from independent witnesses which is lacking in this case. The testimony of official witnesses does not find any corroboration from any independent source.
Cr. Case No. 536/2024PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 7/9
20. Further, there is no link in the investigation as to whether the accused was connected with any hotel or lounge for which he was touting. The mere evidence available on the record is that some police officials saw the accused touting which in my humble view is not sufficient. It is not the fact which can be merely perceived by the eye only. The transaction of touting can be witnessed by oral senses also. No witness has deposed as to what the conversation of touting was. There is nothing on record which shows that the accused was having any material with him which could have been subject of touting. Both investigation and evidence are lacking in so many aspects. Hence, raise considerable doubt on the case of the prosecution. The law is well settled that whenever there is a doubt in the mind of the Court, the benefit has to be given to the accused.
21. It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire Cr. Case No. 536/2024 PS Pahar Ganj FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 8/9 distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
22. In view of the above examination of the evidence and material available on record, it is observed that the prosecution has failed to prove the guilt of the accused of which the accused faced the trial. Therefore, accused, HIMANSHU KUMAR, is hereby acquitted of the offence punishable u/s 4 (c) DPT & MAT Act of which he faced the trial. The bonds accepted in terms of provision of section 437 Cr.P.C shall remain in force for a period of six months.
Announced in the open Court today
i.e. on 17.01.2025
Digitally signed
by NEETU
SHARMA
NEETU Date:
SHARMA 2025.01.17
15:56:44
+0530
(NEETU SHARMA)
ACJM-01(CENTRAL)
TIS HAZARI COURTS/ DELHI
Cr. Case No. 536/2024
PS Pahar Ganj
FIR No. 846/2023 State Vs. Himanshu Kumar Page No. 9/9