Delhi District Court
State vs Gulabo Devi Etc. Page 1 Of 10 on 13 March, 2015
FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 IN THE COURT OF POORAN CHAND: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.: 43/04 PS: B.H. Rao U/s : 186/353/447/34 IPC State v. Gulabo Devi etc. Unique ID No.: 02401R6291922004 J U D G M E N T:
(a) S. No. of the case :
(b) Name of complainant : HC Bhagwan Sahai, No. 149/N
PS Bara Hindu Rao, Delhi.
(c) Date of commission of offence : 18.02.2004
(d) Name of the accused : (1) Gulabo Devi w/o late Om
Prakash, r/o 382, Gali no. 8, Sant
Nagar, Burari, Delhi.
(2) Shankar Kumar s/o Mohan Lal r/o
House No. 2-881, Jhangirpuri,
Delhi
(e) Offence complained of : U/s 186/353/447/34 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 18.02.2015
(h) Final Order : Acquitted
(i) Date of such order : 13.03.2015
A. BRIEF FACTS & REASONS FOR SUCH DECISION:
In brief, it is the case of prosecution that on 18.02.2004 at about 12:15 p.m. at Machliwala Chowk, library road, Azad Market, Delhi accused Gulabo Devi and accused Shanker in furtherance of their common intention voluntarily caused obstruction to complainant HC Bhagwan Sahai and HC Balbir Singh being the public servant in discharge of their public duties and assaulted complainant and State V/s Gulabo Devi etc. Page 1 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 HC Balbir Singh and also tracepass on the Municipal land of parking place and both the accused were running a parking and charging the parking fees from the vehicles. Thereafter, on the complaint of complainant, present FIR was registered u/s 186/353/447/34 IPC and accused persons were arrested. After completion of investigation charge sheet was filed in the court for judicial verdict.
2 After filing of charge sheet in the case, accused persons were supplied the documents in compliance of Section 207 Cr.P.C. and arguments on the point of charge advanced on behalf the accused persons, heard.
3 Vide order dated 04.05.2009, charge u/s 186/353/447/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
4 In order to bring home the guilt of accused persons, prosecution examined as many as 5 witnesses, whereafter the PE in the matter was closed and statement of the accused persons U/s 313 Cr.P.C were recorded, wherein they pleaded innocence and claimed that they have been falsely implicated in this case. Both the accused persons lead defence evidence in their defence.
B Evidence Held: 5 A total of 5 witnesses were examined by the prosecution in support of its
case. A brief scrutiny of the evidence recorded in the matter is as under.
6 PW1 W/ASI Abha, deposed that on 18.02.2004, she was posted as ASI in Police Station Bara Hindu Rao and on that day, her duty hour were 9:00 AM to 9:00 PM. On that day, SHO, made a call to her and asked her to come Subzi Market, Library. Thereafter, vide DD entry No. 16-A, she reached there and she saw that accused Gulabo along with Shankar Kumar (correctly identified) was throwing vegetables on police officials. Accused Gulabo and Shankar Kumar also had thrown weights (Batta) on HC Bhagwan Sahai and HC Balbir Singh. Thereafter, they were apprehended and personal search of accused Gulabo was conducted. When HC Balbir Singh was seizing vegetables and weights (Batta) accused Gulabo has pushed him and also used filthy language. SHO also came State V/s Gulabo Devi etc. Page 2 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 there and they inspected SI Kishan Chand who apprehended the accused u/s 107/151 Cr.P.C. Case property was also seized and accused were produced before Special Executive Magistrate. She put her signatures at point A on seizure memo of Tarazoo and weights Ex. PW-1/A. She also put her signatures at point A on the arrest memo and personal search memo Ex. PW-1/B and Ex. PW-1/C. This witness correctly identified the case property.
7 PW2 ASI Balbir Singh deposed that on 18.02.2004, he was posted as HC at Police Station Bara Hindu Rao. On that day, he along with HC Bhagwan Sahai were on patrolling duty vide DD entry no. 29-B which is Ex. PW-2/A and were present on library Road, Delhi. Some persons were selling vegetables there. Some people had told him that such vegetables vendors used to create nuisance in the market. Thereafter, he along with HC Bhagwan Sahai asked them to remove their vegetables but one lady namely Gulabo and one boy namely Shankar Kumar refused to do so. Thereafter, they also started abusing them and started throwing vegetables on them. When they tried to seize the vegetables, the said boy and lady had thrown weights (Batta) on them. When he tried to seize the vegetables, accused Gulabo pushed him, thereafter they were apprehended. He put his signatures at point K on the seizure memo of Tarazoo and weight already Ex. PW-1/A. He also got registered the FIR and also put his signatures at point A on the arrest memo and personal search memo Ex. PW-2/B and Ex. PW-2/C. They were also apprehended u/s 107/151 Cr.P.C. IO recorded his statement. This witness correctly identified the case property.
8 PW3 HC Khyali Ram, deposed that in the intervening night of 18.02.2004, he was posted as duty officer at PS Bara Hindu Rao, Delhi. On that day his duty hours were 12:00 Noon to 5:00 PM. On that day, at about 2:00 PM, he received a Rukka from HC Balbir Singh sent by SI Kishan Chand. On the basis of the said Rukka, he registered the FIR no. 43/04 which is Ex. PW-3/A and endorsement of the Rukka is Ex. PW-3/B bears his signature at point A, thereafter he handed over the same Rukka and copy of FIR to HC Balbir for SI Kishan Chand. He has also brought the original copy of FIR (OSR).
State V/s Gulabo Devi etc. Page 3 of 10FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 9 PW4 ASI Bhagwan Sahai deposed that on 18.02.2004, he was posted as HC at PS Bara Hindu Rao. On that day he along with HC Balbir Singh were on patrolling duty vide DD No. 29 B which is already Ex. PW2/A and was present at Library Road, Delhi. Some vegetables vendors used to create nuisance in the market and they used to quarrel with the persons. One written complaint was lodged at their PS regarding such incident. SI Krishan Chand instructed them to go to the spot and look into the matter. Thereafter, he along with HC Balbir Singh reached at the spot and asked vegetables vendors to remove their vegetables. But one lady namely Gulabo Devi and one boy Shankar Kumar refused to do so. When they again asked them to remove the vegetables they started abusing us and starting throwing vegetables on them. When they tried to seize the vegetables, accused Gulabo and Shankar, (correctly identified) threw weights (batta) on them. When HC Balbir Singh tried to seize the vegetables, accused Gulabo pushed him. Thereafter, accused persons were apprehended. He put his signatures at point A on complaint Ex. PW4/A. He also put his signatures at point A on the arrest memo and the personal search memo already Ex. PW2/C and Ex. PW2/B. IO recorded his statement.
10 PW5 Sh. B.S. Ahlawat, ACP deposed that on 26.04.2004, he was posted as SHO PS Bara Hindu Rao and on that day he gave complaint u/s 195 Cr.P.C. against accused persons which is Ex. PW5/A bearing his signature at point A. The list of witnesses is Ex. PW5/B bearing his signature at point A. 11 PW5 (infact PW6) Retd. SI Kishan Chand deposed that on 18.02.04, he was posted at PS BHR as SI. At about 12.15 P.M, he received DD no. 29 regarding quarrel at Machliwala Chowk Subzi Market, Library Road, Azad Market Delhi. He alongwith HC Bhagwan Sahai and Ct. Balbir Singh went there. HC Bhagwan Sahai and HC Balbir Singh started managing the quarrel there whereas he went in the area for patrolling. When he returned back there at about 12.30 P.M he saw that the accused persons namely Gulabi Devi and Shanker were throwing vegetables upon HC Bhagwan Sahai and HC Balbir Singh. He intervened and recorded statement of HC Bhagwan Sahai and prepared rukka Ex. PW5/A bearing his signature at point A and gave the same to HC Balbir for getting State V/s Gulabo Devi etc. Page 4 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 the case registered at the PS. He returned to the spot after sometime and gave him copy of present FIR with original rukka for investigation. He prepared site plan on pointing out of HC Bhagwan Sahai which is Ex PW5/B bearing his signature at point B. Thereafter, he seized "Taraju and Baat" vide memo already Ex PW1/A bearing his signature at point C. he arrested both the accused persons at the spot vide memos already Ex PW1/B and PW2/B bearing his signatures at point C. The personal search of both accused persons were taken vide memos already Ex PW1/C and PW2/C both bearing his signatures at point C. The personal search of accused Gulabo was taken by WSI Abha who had come to the spot on the direction of SHO as SHO had also come at the spot. He recorded statements of witnesses. The copy of DD no. 29-B is already Ex PW2/A. 12 This is all as far as prosecution evidence in the matter is concerned.
13 Accused persons have also led defence evidence in this case and examined DW1, DW2, DW3, DW4 and DW5.
14 DW1 W/HC Poonam deposed that the record pertaining to the complaint for the year 2004 are not available as the records from the year 2001 to 2007 have since been destroyed vide order of ACP bearing No. 24224/78/HAR/Vig. Dated 28.07.2011. She proved the copy of same vide mark DX/A and letter vide Ex. Mark DX/B. 15 DW2 Gulabo Devi, accused deposed that she is a vegetable seller at Library Road, Azad Market, Delhi. About 10 years back at about 12 noon when she was selling the vegetables at Library Road, about 20 police officials including one women Constable came to her and forcibly took her to police station and implicated her in false police case. The police also took her to Sarai Rohilla court and she was sent to JC from Sarai Rohilla Court. There is a Subzi market at Library Road since last about 40 years and she sells vegetables there. There are many vendors namely Pradeep Kumar, Sonu, Ram Prasad, Shankar and many others. She proved Certified copy of the order of Sh K.S. Khurana, the then ASJ, Tis Hazari Courts vide Ex. DW2/A, The certificate of registration vide Ex. DW2/B State V/s Gulabo Devi etc. Page 5 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 (OSR), The memorandum of association vide Ex. DW2/C, the receipt of application submitted for Teh Bazari vide Ex. DW2/D (OSR). She deposed that on her application for Teh Bazari about which Ex. DW2/D is the receipt, she had come to know that the Teh Bazari was allowed but she has not been given the Teh Bazari site by the MCD. The police had earlier also implicated her in the false police case by the PS, in which she was acquitted by the Hon'ble Sessions Court vide judgment Ex. DW2/E. The said case was also got framed against her at the instance of K.K. Tony, who is the President of Shopkeepers at Library Road, Azad Market, Delhi and who is jealous against her as I helped the vegetables and fruits seller at Library Road, being the President of the Samiti registered vide Ex. DW2/B. She was the President of the Samiti when she was falsely implicated in this case. She had filed complaint against SHO and other police officials of PS Bara Hindu Rao to the Commissioner of Police. Same is marked as mark A. She had also filed petition against the Bara Hindu Rao police after this case, in Hon'ble High Court. Hon'ble High Court passed an order. The certified copy of the said order is Ex. DW2/F. She had moved a complaint against K.K. Tony to Delhi Women commission dated 16.03.2001, which was received there on 19.03.2001. The certified copy of the same is mark B. She had also moved a complaint against Bara Hindu Rao police to the Commissioner of police, the copy of which is Ex. DW2/G, which bears her signatures at point A. Postal receipt of the same is Ex. PW2/H. The aforesaid vegetables and fruit market is still going on and the vegetables and fruits seller sell their items from there. This is a false case against her. She has not committed any alleged offence. Shankar had come over there and intervene the matter, hence he was also implicated in this case.
16 DW3 Shankar Singh, other accused deposed that in the year 2004, on the day of Shiv ratri he was going towards his house. He reached at a distance of 20 meter from the Thela of the accused Gulabo Devi where his mother was selling Dhania/Mirchi where he noticed that 19/20 police personnel along with lady police took the accused towards police station. He made enquiry from the police personnel and informed them she is a good lady and also a Pradhan of the Samiti. On this police personnel told me that "Tu Jyada Neta Ban Raha Hai" and they also took him to PS and falsely implicated in this case. No documents were prepared State V/s Gulabo Devi etc. Page 6 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 at the spot. Thereafter, they took us to Sarai Rohilla and thereafter, taken to Central Jail.
17 DW4 Sonu deposed that he has been selling the vegetables at Library Road, Azad Market, Delhi for the last 20 years and he knew both the accused persons. The shop of accused Gulabo is situated in front of her shop. About 10/11 years ago, 8/10 police personnel including one lady police came over there and took accused Gulabo without any reasons to PS. He also went to PS but no paper work was done at the spot. No quarrel took place there between the police and Gulabo.
18 DW5 Pardeep Kumar deposed that he has been selling the vegetables at Library Road, Azad Market, Delhi for the last 25 years and he knew both the accused persons. They had made a Samiti in the name of Library Road Azad Market Fruit and Vegetables Rakshak Samiti and he was Secretary at the relevant time. They have sent complaint to DCP Traffic against K.K. Tony and Crockery Merchant. The photocopy of the said complaint is mark DW5/A bearing his signatures at point A. They also made another complaint Ex DW5/B bearing his signatures at point A. Another complaint mark DW5/C was also made by them. About 10/11 years ago, 7/8 police personnel including one lady police came over there and took accused Gulabo without any reasons to PS. He also went to PS but no paper work was done at the spot. No quarrel took place there between the police and Gulabo. He also went to PS. Arguments advanced and case law relied upon :
19 I have heard final arguments advanced on behalf of both the sides and also have perused the entire judicial records, carefully.
20 It is argued on behalf of State that in view of the testimony of prosecution witnesses, prosecution has proved its case beyond reasonable doubts. Hence, accused persons be convicted and sentenced as per law.
State V/s Gulabo Devi etc. Page 7 of 10FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 21 On the other hand, it is argued on behalf of accused persons that they did nothing in the commission of crime. They claims to be innocent and requested that they be acquitted.
22 In the present case, vide order dated 04.05.2009 accused Gulabo Devi and Shankar Kumar were charged for offence u/s 186/353/447/34 IPC for voluntarily causing obstruction to the public servant while discharging their duties and while doing so assaulted by throwing vegetables and weight (batta) as both accused persons has committed offence for criminal breach of trust by encroaching on the public land.
23 In order to prove its case prosecution examined 6 witnesses and accused persons has also examined 5 defence witnesses including themselves in their defence. I have minutely gone through the evidence lead by both the parties. It is unique case where poor accused persons time and again being implicated in one or the other cases and lastly they were acquitted in all the cases by Ld. Sessions Court. The judgment of all the previous cases are also filed on record by the accused persons in their defence. I have minutely gone through the judgment passed by Ld. District Judge dated 27.08.1999, 05.06.2000 and 21.02.2004. From the record it is clear that both the accused persons are vegetables vendors and are selling vegetables along with other vegetables vendors at the spot mentioned in the record since more than 40 years. It is also pertinent to mention that Ld. SDM has passed a conditional order while exercising his power u/s 133 Cr.P.C. and final order u/s 138 Cr.P.C. directing the police authority and the municipal authority to remove the nuisance and regulate the timing of vegetables as well as fruit vendors who have been allegedly functioning and selling their goods at Library Road, Azad Market, Delhi. The said order was set aside by the court of Sh. K.S. Khurana, the then Ld. Additional Sessions Judge vide order dated 27.08.1999. The observations in the said order are as under:-
"In view of the discussions made above, it is therefore, held that the orders passed by Ld. SDM on 21.05.1998 and 28.08.1998 were neither proper nor justified. In my opinion, the same was passed illegally and without jurisdiction. Consequently, the said orders passed by Ld. SDM are hereby set aside. It will be proper on the part of Ld. SDM if the timings of the fruit vendors and vegetables State V/s Gulabo Devi etc. Page 8 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 sellers are to be regulated, he should first ascertain the names of those vendors with the help of police of PS Bara Hindu Rao and then pass the conditional order and should serve the notice to them either in person or through proclamation and then after recording the evidence and after hearing both the parties should pass final order".
24 Now I come to the evidence lead by the parties in the present case. As per case of the prosecution, PW2 Balbir Singh and PW4 ASI Bhagwan Sahai have been examined as complainant/eye witness to prove the charge. To corroborate the testimony of these witnesses prosecution has also examined PW1 W/ASI Abha as she was also called on the spot at the time of incident. I have minutely gone through the testimony of these witnesses. PW2 ASI Balbir Singh has deposed that he along with SI Bhagwan Sahai, asked the accused person to remove their vegetables but one lady namely Gulabo and one boy namely Shankar Kumar refused to do so. Thereafter, they also started abusing them and started throwing vegetables to the. When they tried to seize the vegetables, the said boy and lady had thrown weight (batta) on them. This is the piece of evidence come on record in the testimony of these three eye witnesses. It has also come on record that they were directed by SI Krishan Chand to visit the spot as one written complaint was lodged in the PS regarding creating nuisance by such vegetable/fruit vendors. It is pertinent to mention that no such complaint is proved on record. It is also pertinent to mention that no such complainant or any person has been examined by the prosecution to the effect that vegetables vendors while selling their vegetables/fruits creating nuisance. The only allegations that when the police official asked the vendors to remove their vegetables instead removing the vegetables they have started abusing and throwing the vegetables upon the police officials have come on records.
25 Now the question is whether the act of police official directing the vegetables vendors to remove their vegetables can be held a part of discharge of public duty. The answer is no. The observations given by Ld. Sessions Court in its judgment dated 27.08.1999, Ex. DW2/A were not complied with even by police or the municipal authority. In the said judgment, Ld. Sessions Court has directed that it will be appropriate on the part of SDM if the timings of the fruit vendor and vegetables sellers are to be regulated. He should ascertain the names of vendors State V/s Gulabo Devi etc. Page 9 of 10 FIR No. 43/04 : U/s 186/353/447/34 IPC: PS B.H. Rao DOD: 13.03.2015 with the help of the police of PS Bara Hindu Rao and then pass a conditional order but no such order was passed by Ld. SDM to regulate the poor vendors who are earning their livelihood by selling the fruit and vegetables. Therefore, this court has no hesitation to hold that the police official were not discharging their public function while directing the vendors to remove the vegetables. From the record no injuries has been sustained by any of the police official. Only allegations against the accused persons are that instead of removing their vegetables they started throwing vegetables and weight (batta) on them. Mere boastful threat if at all given by the poor vendors to the police personnel does not and cannot amount to criminal intimidation or causing assault. Police has acted without any complaint from anyone and supposedly, if there was any complaint regarding nuisance then police authority was under a duty to proceed as per direction given by Ld. Sessions Judge in his judgment dated 27.08.1999. In view of the above, I am of the view that prosecution has failed to prove the charge against the accused persons. Both the accused persons are entitled to be acquitted.
Hence order accordingly.
Announced in the open court (Pooran Chand)
on 13.03.2015 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Gulabo Devi etc. Page 10 of 10