Delhi District Court
3. Title Of The Case : State vs Ram Karan Etc. on 28 May, 2012
IN THE COURT OF SH. MANISH YADUVANSHI: ACMM-01 (CENTRAL):
TIS HAZARI COURTS, DELHI.
1. Case No : : 0139/P/08
2. Unique I.D. No. : 02401R0744672003
3. Title of the Case : State Vs Ram Karan etc.
FIR NO: 406/2003
PS : PAHAR GANJ
U/S: 292/34 IPC
4. Date of Institution : 04.12.2003
5. Date of reserving judgment : 28-05-2012
6. Date of Pronouncement : 28-05-2012
JUDGEMENT :
a) The Sl. No. of the case : 0139/P/08
b) The date of commission of offence : 19.09.2003
c) The name of complainant : SI R.D.Singh
PS PAHARGANJ
(now posted at R.P.Bhawan, Delhi)
d) The Name of Accused : 1) Ram Karan S/o Mahender Dass
R/o Vill. Basant P.S. Orai, Distt.
Mujaffarpur, Bihar
2) Akhilesh Kumar (PO)
S/o Sh. Sohit Mukhiya
R/o Village Bagrasi PS Jamal Pur,
Distt. Darbanga, Bihar
e) The offence complained of : U/s 292/34 IPC
f) The plea of accused : Pleaded not guilty.
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g) The final order : Acquitted
h) The date of such order : 28-05-2012
i) Brief facts of the decision of the case: -
1. It is alleged that the accused, on 19.09.2003 at about 08.10 PM at CF Road, Near Bus Stand, was found in possession of different books, out of which 15 books were of obscene nature, for the purpose of public selling and apprehended by SI R.D.SIngh (PW-5), HC Munender Singh (PW-2), Ct. Virender Kumar (PW-1) and Ct. Mukesh (PW-3) while they were on patrolling duty. The case was registered for the offence punishable U/s 292/34 IPC and the accused persons namely Ram Karan and Akhilesh (PO) were arrested. After conclusion of investigation, charge sheet was prepared and filed in the court.
2. On the basis of record, a charge for commission of offence punishable U/s 292/34 IPC was read out to the accused Ram Karan on 05.10.2010 who pleaded not guilty and claimed trial whereas the other accused namely Akhilesh was already declared as Proclaimed Offender on 26.07.2010. Copy of the charge sheet was supplied to the accused person Ram Karan.
3. The prosecution had furnished list of 6 witnesses including the MHC(M). Out of these witnesses, only 5 PWs were examined. The prosecution has examined Ct. Virender Kumar, HC Muninder Singh, Ct. Mukesh, HC Satish Kumar, SI R.K.Singh as PW-1, PW-2, PW-3, PW-4 & PW-5. The Duty Officer and the MHC (M) were not examined by the prosecution.
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4. After the prosecution had concluded its evidence, the incriminating evidence was explained to the accused Ram Karan in his statement U/s 281 Cr.P.C read with U/s 311 Cr.P.C. The accused stated that he was falsely implicated in this case and no books were recovered from his possession. No DE was lead by the accused.
5. I have heard the Ld. APP for State and Sh. Om Vir Singh, Ld. Counsel for the accused and perused the record carefully.
6. The prosecution had examined Ct. Virender Kumar as PW-1 who stated that, on that day, he was on patrolling duty with SI R.D.Singh (PW-5), HC Munender (PW-2) and Ct. Mukesh (PW-3). He further stated that upon receiving secret information from one secret informer that two young persons are selling obscene books near CF Road, Bus Stand, they prepared a raiding party consisting of aforesaid police officials. PW-1 also admitted that before raiding, IO SI R.D.Singh had asked 4-5 public persons to join the investigation but none agreed. He further stated that he reached at the spot alongwith SI R.K.Singh (PW-5), HC Munender (PW-2) and Ct. Mukesh (PW-3) and accused persons namely Ram Karan and Akhilesh (PO) were apprehended and out of 56 books, 13 obscene books were recovered from the possession of the accused persons. The recovered obscene books were kept in a separate white colour cloth pullanda and sealed with the seal of 'RDS' and the case property was seized vide seizure memo Ex. PW-1/A. PW-1 further submits that IO prepared tehrir and gave the same to Ct. Mukesh for registration of the case. After registration of the FIR, IO SI R.D.Singh arrested the accused persons namely Ram Karan and Akhilesh (PO) vide arrest memos Ex. PW-1/C and PW-1/B respectively. He was duly cross examined by Ld. Defence Counsel.
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7. HC Muninder Singh was also examined by the prosecution as PW-2 who had admitted that a secret information was received regarding two persons selling obscene books at C.G.Road. He further stated that he alongwith IO SI R.K.Singh (PW-5), Ct. Virender (PW-1) and Ct. Mukesh (PW-3) apprehended the accused persons and obscene books were recovered from their possession. PW-2 admitted that both accused persons were arrested (Ex. PW-1/C and PW-1/B) and the case property was seized (Ex.PW-1/A). He was also cross examined by the defence.
8. PW-3 Ct. Mukesh stated in his examination that he was also the member of the raiding party. He also stated that the accused persons namely Ram Karan and Akhilesh (PO) was apprehended while they were selling obscene books at Bus Stand, C.F.Road. He submitted that he was sent to PS by IO SI R.D.Singh with rukka for registration of the case and he returned back alongwith copy of the FIR and original rukka at the spot and handed over the same to the IO. Both the accused persons were arrested by the IO SI R.D.Singh (PW-5) vide arrest memo Ex. PW-1/B & C and the case property was seized vide seizure memo (Ex.P1/A). PW-3 further stated that the accused persons were got medically examined by him at Lady Harding Hospital. He was duly cross examined by the Ld. Defence Counsel.
9. PW-4 HC Satish Kumar was also examined by the prosecution as he was the Duty Officer on date of incident. PW-4 stated that on 29.09.2003 at around 10.00 PM, he received rukka brought by Ct. Mukesh which was sent by IO SI R.D.Singh. On the basis of the same, FIR (Ex. PW-4/A) was registered and copy of the same along with rukka was given to Ct. Mukesh for handing over the same to SI R.D.Singh. He made an endorsement on rukka at point 'X' on Ex. PW-4/B. He was also cross examined by the defence.
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10. The last witness of the prosecution is the IO/SI R.D.Singh who was examined as PW-5. PW-5 SI R.D.Singh stated that, on that day, he was on patrolling duty with Ct. Virender (PW-1), HC Munender (PW-2) and Ct. Mukesh (PW-3). PW-5 further stated that upon receiving secret information from one secret informer that two young persons are selling obscene books near CF Road, Bus Stand, he prepared a raiding party consisting of aforesaid police officials. PW-5 also admitted that before raiding, he had had asked 4-5 public persons to join the investigation but none agreed. He further stated that he reached at the spot alongwith Ct. Virender (PW-1), HC Munender (PW-2) and Ct. Mukesh (PW-3) and accused persons namely Ram Karan and Akhilesh (PO) were apprehended and out of different books, 15 obscene books were recovered from the possession of the accused persons. The recovered obscene books were kept separately and sealed with the seal of 'RDS' and the case property was seized vide seizure memo Ex. PW-1/A. PW-5 further submitted that he prepared tehrir and gave the same to Ct. Mukesh for registration of the case. After registration of the FIR, he arrested the accused persons namely Ram Karan and Akhilesh (PO) vide arrest memo Ex. PW-1/C and PW-1/B. PW-5 Admitted that he had recorded the statement of PWs. PW-5 was duly cross examined by Ld. Defence Counsel.
11. The perusal of rukka (Ex.PW-5/A) indicates that the police party had sprung into action upon receipt of secret information. The time of receipt of secret information is 07.50 PM. The time of apprehension of the accused persons is 08.10 PM. In between this time, the IO is stated to have requested 4-5 public persons to join the duly constituted raiding party. PW-1 asserts the said fact and so does the PW-2, PW-3 and IO (PW-5) himself. In his cross examination, PW-1 did not remember if the IO asked the shop keepers to join the proceedings although he was able to FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 5 of 10 recollect that no notice was served to 4-5 persons who refused to become members of the raiding party. PW-3, in his cross examination also submitted that no notice was served by the IO to such persons who had refused to join the investigation. Interestingly, this witness submitted that there was one 'patri shop' of water and the IO asked the said shopkeeper to join the proceedings who too, did not agree. This fact is not stated by any other witness including the IO. All though, the IO admits that there were other witnesses who were also selling other products on the pavement but they are also not a part of the charge sheet.
12. The police party has already on patrolling duty in the area of Paharganj. The secret information was received at 07.50 PM and the raid conducted at 08.10 PM. There is a time gap of 20 minutes in between and in such amount of time available with the raiding party, its members could have shared the secret information with their superiors and PW-5 could have noted down the names and addresses of the persons who refused to take part in the investigation. This apparently has not been done and if the version of PW-3 is to be believed, he has introduced the owner of the water shop by singling him out from the 4-5 other pubic persons. It is to be believed that it is surprising as to why the other PWs are silent about his presence. Ordinarily, the version of the police officials regarding recovery/investigation of the facts is not to be dis-believed merely because of such witness being police official. However, if there are contradictions amongst their statements, the court is required to look for further corroboration to their testimonies.
13. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 6 of 10 CLR 69, it was observed that such explanations are unreliable.
In case of PREM SINGH VS. STATE 1996 CRI. L. 3604 (DELHI) and in case of PAWAN KUMAR VS. DLEHI ADMN. 1989 CRLJ 0127 DEL, it has been observed as under:-
"Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 7 of 10 circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
14. At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled Ambika Prasad & Anr Vs. State reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
15. Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it is observed, " These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they withdraw both from the victim and vigilance'
16. I have already pointed out that the secret information was not received in writing or not shared with senior officials. PW-1 casts doubt on the case of the prosecution as well as the veracity of the fact disclosed by the remaining PWs. According to him, the accused was arrested by the IO at 07.30 PM. Further, according to him, police party had FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 8 of 10 left the spot at 11.00 PM. According to the witness, the rukka was sent at 07.50 PM and Ct. Mukesh returned with the copy of FIR at 08.10 PM. All these facts are contrary to the actual facts. It is the case of the prosecution that the rukka was dispatched at 09.40 PM and as a matter of fact that the secret information did not even exists at 07.30 PM. The PW-2 gave the correct time of receipt of the secret information and also regarding the time when the rukka was dispatched. This in itself is not sufficient as PW-3 who was the carrier of the rukka submits that he had left with the tehrir at 08.40 PM and had returned to the spot with the copy of the FIR and the tehrir at 09.40 PM. According to him, police party had left the spot at 10.00 PM whereas as per PW-1, the police party left the spot at 11.00 PM. According to IO, PW-3 returned to the spot after registration of FIR at 10.40 PM and that they had left the spot at 10.30 PM ! Thus, there is no consensus amongst police witnesses regarding the time factor which is an important aspect and can not be over looked.
17. It is also observed that the accused persons are stated to have been selling obscene material (Ex. P-1) after having arranging them for the purpose of selling in a bed-sheet. As per PW-2, bed-sheet was of "mataiala" colour with black lines. As per PW-3, the colour of the bed-sheet was white. The case property was opened in the court at the time in the testimony of PW-1. The same was in two pullandas out of which one was big and the other was small. The seal on the big pullanda was broken. The bed-sheet was not recovered from either of the pullandas. Thus, the factum of absence of element of tampering with the case property is present. The absence of seizure of the bed-sheet is also against the case of the prosecution. The aforesaid contradictions are sufficient to create doubts in the case of the prosecution.
18. In the result, it is held that the prosecution has been unable to prove its case FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 9 of 10 against the accused beyond all reasonable doubts and therefore the accused is accordingly acquitted of the charge U/s 292/34 IPC. His Personal Bond/Surety Bond is extended in compliance of Section 437-A Cr.P.C.
File be consigned to Record Room.
Announced in the open court on 28th May 2012.
(MANISH YADUVANSHI) ACMM (CENTRAL-01) DELHI It is certified that this judgment contains 10 (Ten) pages and each page bears my signatures.
(MANISH YADUVANSHI) ACMM (CENTRAL-01) DELHI FIR No. 406 of 2003 State Vs Ram Karan & Akhilesh Page No. 10 of 10