Delhi District Court
State vs . : Rajender Prasad And Ors on 14 May, 2012
IN THE COURT OF MS. APARNA SWAMI
METROPOLITAN MAGISTRATE02/NORTH
TIS HAZARI COURTS : DELHI
State Vs. : Rajender Prasad and Ors
FIR No. : 227/2000
U/s : 160 IPC
PS : Kashmere Gate
JUDGEMENT
1 Unique ID No. of Case 02401R0102981999 2 Date of commission offence : 18.12.1999 3 Date of institution of the case : 21.12.1999 4 Name of the complainant : HC Bansi Ram from PS Kashmere Gate 5 Name of accused, parentage & : Kundan Singh son of Sh. Sher Address Singh, R/o H. No. 137, Gali No. 7, CBlock, Brij Puri, Delhi. 6 Offence complained of : Sec. 160 IPC 7 Plea of the accused : Pleaded not guilty 8 Date of reserving for order : 25.04.2012 9 Final order : Acquitted 10 Date of Judgment : 14.05.2012 FIR No. 227/2000 1/8 Brief facts of the case are as under:
Accused Kundan Singh son of Sh. Sher Singh has been sent to face trial with the allegations of commission of offence punishable under Sec. 160 of Indian Penal Code (herein after called as IPC).
Briefly, the allegations leveled upon the accused are that on 18.12.1999 at about 10.35 pm, at Mini Bus Stand, Kashmere Gate, Delhi, he along with other accused persons of this case namely Lalin Singh (who has pleaded guilty on 11.04.2007 and accordingly admonished vide separate STR entry) and Rajender Prasad (who has been declared 'Proclaimed Offender' during the trial) were found fighting on a public place and disturbed the public peace of the area.
2. The Investigation was carried out. Accused persons were produced before the court and copies were supplied to them. During the trial, accused Lalin Singh pleaded guilty and vide separate entry in STR, he was admonished by the court. Accused Kundan Singh and other accused namely Rajender Prasad were declared 'Proclaimed Offender' on 11.04.2007. However, on 10.02.2011, accused Kundan Singh was arrested under Sec. 41.1 (C) Cr.PC and was produced before the court. On 10.10.2011, Notice for commission of offence punishable under Sec. 160 IPC was served upon the accused Kundan Singh, to which he pleaded not guilty and claimed trial.
3. The Prosecution in order to prove allegation against the accused FIR No. 227/2000 2/8 Kundan Singh, lead prosecution evidence. Briefly the testimony of prosecution witnesses is as under: 3.1 PW Head Constable (HC) Sunil Kumar deposed that on 18.12.1999, he was posted at Police Post, ISBT, Police Station Kashmere Gate and was on patrolling duty along with HC Bansi Lal. When he was present at Mini Bus Stand, he saw gathering of public persons and after asiding the public persons, he saw three persons were fighting with each other, they were uttering loudly filthy language / abuses in public. In the meantime, ASI Kesar Lal came there and tried to pacify them, but they did not pay any attention and continued shouting loudly and fighting at the public place. Later these persons were apprehended. This witness identified the accused Kundan Singh as one of the person so fighting at that time. All the three accused persons namely Kundan Singh, Laleen Singh and Rajender Prasad were arrested vide memos Ex. PW 3/A, 3/B and 3/C respectively. Their personal search was also conducted vide memos Ex. PW 3/D, 3/E and 3/F respectively.
He was crossexamined by Ld. Counsel for the accused. 3.2 PW ASI (Retd.) Bansi Lal. He deposed that on 18.12.1999 he was posted as Head Constable at Police Post, ISBT, Police Station Kashmere Gate and was on patrolling duty along with Ct. Sunil Kumar. Rest of his testimony is on the same lines as that of PW HC Sunil Kumar. He was FIR No. 227/2000 3/8 crossexamined by Ld. Counsel for the accused persons. 3.3 PW SubInspector (SI) Kesar Lal Meena. He was posted as Assistant SubInspector (ASI) at Police Post, ISBT, Police Station Kashmere Gate. He deposed on oath that on 18.12.1999 at about 11.15 pm, he was on patrolling duty and while patrolling when he reached Mini Bus Stand, ISBT, there he saw Ct. Sunil Kumar and HC Bansi Lal were present. He also saw gathering of public persons. He further noticed that three persons namely Kundan Singh, Lalin Singh and Rajender Prasad, were fighting on the public way and using filthy language for each other, due to aforesaid behaviour of the accused persons on public place, the public peace was disturbed. Despite the best efforts, accused persons did not stop fighting and, therefore, they were booked under Sec. 92/93/97 of DP Act. Later on 13.06.2000, Investigating Officer of the present case, recorded his statement. He identified the accused Kundan Singh who was present in the court, however, he was unable to recollect his name.
He was crossexamined by Ld. Counsel for the accused.
4. The prosecution evidence was closed and all the incriminating circumstances were put to the accused when his statement was recorded under Sec. 313 Cr.PC. He denied all the evidence against him as false and took the plea that he has been falsely implicated in this case, however, he did not prefer to lead evidence in his defence.
FIR No. 227/2000 4/8
5. The Final arguments are heard and I have also gone through the record carefully.
6. In order to establish the commission of offence punishable under Sec. 160 IPC by accused Kundun Singh, prosecution has to establish the ingredients of Sec. 159 IPC which are that two or more persons are found found fighting public place and disturbing the public peace.
In the present case, the main witnesses of the prosecution are PW 3 HC Sunil Kumar, PW 4 ASI (Retd.) Bansi Lal and PW 5 SI Kesar Lal Meena. As per the testimony of these witnesses, all the three accused persons were found fighting on public place and disturbing public peace, which led to their arrest and the present trial. It has come out in the cross examination of PW 3 HC Sunil Kumar that place of apprehension was a public place. Investigating Officer tried to join the public witnesses but the they did not agree and the Investigating Officer did not initiate any action against them who refused to join the investigation. It has further come out in the crossexamination of PW 3 HC Sunil Kumar that shopkeepers were present at the place of incident but Investigating Officer made no efforts to join them. He further submits that he along with HC Bansi Lal (PW 4) took injured to the hospital.
In the crossexamination of PW 4 ASI (Retd.) Bansi Lal, it has come out that he went to the hospital personally for examination of the FIR No. 227/2000 5/8 accused persons. He negated the suggestion that accused has been falsely implicated in this case.
Also, in the crossexamination of PW 5 SI Kesar Lal Meena, he affirmed that it has not been mentioned in his statement that accused persons used abusive language against each other. He further affirmed that Investigating Officer did not record the statement of any public person.
The Perusal of the testimony of above said witnesses shows that the place of apprehension of the accused persons was a public place. There was ample scope for the Investigating Officer for joining public persons but he without justifying his conduct did not join any public person in the present matter. Even, if the public persons refused to join the proceedings, action should have taken against them under Sec. 187 Cr.PC, but no efforts were made to do so. Thus, it can be said that present case has another typical story of requesting public persons to join the investigation and their refusal thereto.
The aforesaid flaws in the investigation makes the story of the prosecution wholly unreliable, specifically in the light of judgment in the case of "Jagdish Raj Jaggi Vs State (Delhi) 1987 (2) RCR (Criminal) 1 wherein while acquitting the accused due to absence / non joining of public witness, the Hon'ble Court observed as under: "The question is not whether the testimony of police officers FIR No. 227/2000 6/8 should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the Court that all that is being stated by the police officers is correct. Normally, speaking that a raid of this type is arranged, one should except a police officer to involve independent public witness. In this case, the Court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now being entered in almost all cases. Normal rule is the involvement of public witness and if that is not follow, it must be sufficiently explained as to why it is not so".
Also, as per the testimony of PW 3 HC Sunil Kumar and PW 4 ASI (Retd.) Bansi Lal, they took the injured to the hospital, however, MLC Ex. PW 4/A do not bear their name. Further PW 2, PW 3 and PW 4, failed to tell the DD Entry number during their crossexamination by the counsel for accused, vide which they were on patrolling duty on that day, thus casting doubt on their presence at the spot.
7. In view of aforesaid discussion, I am of the considered view that FIR No. 227/2000 7/8 prosecution has failed to prove its case against the accused Kundun Singh for the commission of offence punishable under Sec. 160 IPC beyond reasonable doubt. Thus, accused Kundun Singh is acquitted from the charge under Sec. 160 IPC against him in this case.
9. He is on bail. His bail bond stand canceled. Surety be discharged. Original documents of surety on file be released upon proper receipt. Accused is admitted to bail under Sec. 437 A Cr.PC on his furnishing personal bond and surety bond for the sum of Rs. 10,000/. He seeks time for furnishing the bail bonds.
10. Put up for furnishing bail bonds under Sec. 437 Cr.PC, on 16.05.2012.
Dictated and Announced in the open (APARNA SWAMI)
court on 14.05.2012 MM02/NORTH/DELHI
FIR No. 227/2000 8/8