Delhi District Court
State vs Dharmender Kumar Tiwari on 9 August, 2024
IN THE COURT SH. ROHIT KUMAR
JUDICIAL MAGISTRATE FIRST CLASS - 04
NORTH: ROHINI COURT : NEW DELHI
Cr. Case 5291814/2016
STATE Vs. Dharmender Kumar Tiwari
FIR No.1105/2014
PS Prashant Vihar
U/s 224 IPC
JUDGMENT
A Registration Number 5291814/2016 B Name of the complainant Ct. Falentush Kullu C Name of the accused & Dharmender Kumar Tiwari his parentage and address S/o Sh. Balchand Tiwari R/o H. No. 18, Gali 1, Jala Ram Society Kamrej Char Rasta Surat, Gujarat.
D Offence Complained of 224 IPC E Date of commission of 22.09.2014 offence. F Date of Institution 07.07.2015 G Offence Charged 224 IPC H Plea of the accused Pleaded not guilty for the offfence person I Order Reserved on 21.05.2024 J Date of Pronouncement 09.08.2024 K Final Order Accused Dharmender ACQUITTED for the offence u/s 224 IPC.
Vide this judgment, accused Dharmender Kumar Tiwari is being acquitted of the offence punishable under Section 224 of Indian Penal Code (hereinafter referred to as "the IPC") in this case FIR No.1105/2014 Police Station Prashant Vihar for the reasons mentioned below:
1. PROSECUTION'S CASE:
It is the case of the prosecution that on 22.09.2014 at around 12:50 pm, at stairs near court room No. 113, sec-14 Rohin Courts, Delhi accused Dharmender Kumar Tiwari when he was Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 1/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:45:41 +0530 Date: 2024.08.09 being taken by Ct. Falenus Kullu, DAP 3 rd Battalion, escaped from lawful custody by releasing his hand.
That based on these facts, it is the case of the prosecution that the accused persons are stated to have committed an offence u/s. 224 IPC which led to registration of FIR No. 1105/2014 at PS Prashant Vihar.
2. CHARGE:
In compliance of the procedural mandate u/s. 173 CrPC, charge-sheet against the accused person is filed in the present matter, upon completion of investigation.
Accused person was summoned to face trial and was supplied with the copy of the charge-sheet as per s. 207 CrPC.
Based on the charge-sheet, a charge for the offences punishable u/s. 224 IPC was framed against the accused person, to which he pleaded not guilty and claimed trial.
3. It is pertinent to record that the accused has made his statement u/s. 294 CrPC, that he will not dispute the genuineness of DD No. 6C Dt. 22.09.2014 & DD No. 13A dated 22.09.2014 both PS Prashant Vihar Ex.A-1 and A-2 respectively.
4. PROSECUTION EVIDENCE:
4(a). PW-1 ASI Chand Kiran deposed that on 22.09.14 he was posted as HC in P.S. Pr. Vihar. On that day he was working as a duty officer and his duty hours were from 8 AM to 4 PM. At about 2:55 PM a rukka was brought by Ct. Sultan which was sent by HC Gordhan for getting the case registered. On the basis of rukka, he registered case vide FIR No.1105/14. Computerized copy of the same is EXPW-1/A (OSR). He also made endorsement on original rukka Ex. PW1/B (Original FIR seen and returned).
He was not cross-examined on behalf of accused despite opportunity was given.Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 2/12
ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:45:48 +0530 Date: 2024.08.09 4(b). PW-2 HC F. Kullu deposed that on 22.09.2014, he was posted at 3rd battalion at Rohini Court lockup. On that day he was on production duty. On that day at about 11.00 AM one undertrial prisoner Dharmender Tiwari, S/o Sh. Balchand Tiwari was produced before the court No. 307 in FIR No. 599/14 U/s 376 IPC, PS Aman Vihar. After production of the UTP before court room No. 307, he was returning for the Rohini Court lockup alongwith UTP Dharmemder Tiwari. When they reached near court room No. 113, the said UTP escaped form the custody after releasing his hand from his custody. He followed the said UTP and raised alarm at the same time. The said UTP gone in the basement of the court premises and hide himself there. He caught the said UTP from the basement. Thereafter he had taken the said UTP in the Rohini Court lockup. He narrated the whole incident to the incharge Rohini Court lockup. He had given a complaint regarding the incident which is Ex. PW-2/A. Police official prepared site plan at his instance which is mark A. Police official recorded his statement U/s 161 Cr. PC.
He correctly identify accused Dharmender Kumar Tiwari present in the court.
In his cross-examination, he deposed that when he raised the alarm regarding the escaping of UTP, no one tried to caught the said UTP. No other person was produced from the custody except accused Dharmender Tiwari on the said day before the court No.307 in FIR No. 599/14. Within 3-4 minutes he apprehended the UTP after escaping. No other police official was present when he apprehended the UTP from the basement. The police post Rohini Court is just situated below the court no. 113. At the time of incident before the court No. 113 there was no rush. Accused was apprehended when he was trying to hide himself between the two walls/pillar. He had shown the place where the accused was apprehended. He denied the suggestion that on the day of incident Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 3/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR Date: 2024.08.09 15:45:54 +0530 there was a quarrel between him and UTP/accused. He denied the suggestion that after the quarrel he had taken the said UTP and make a false and fabricated case against the accused with collusion of the police officials. He denied the suggestion he was deposing falsely.
4(c). PW-3 Ct. Sultan Singh deposed that on 22.09.2014, he was posted as Constable at PP Rohini Courts, PS Prashant Vihar. On that day, upon receipt of DD No. 22 PP by the IO, he alongwith IO HC Gordhan went to Rohini Court Lock-up where Ct. F. Kullu met him, who gave his statement to the IO which was recorded by the IO. Thereafter, IO prepared tehrir and handed over the same to him for registration of FIR. Accordingly, he went to the PS and got the FIR registered through DO. After returning to the Rohini Court, he handed over the copy of FIR and original tehrir to the IO. His statement was recorded by the IO.
4(d). PW-4 Ct. Tara Chand deposed that on 22/09/2014, he was posted at PP Rohini Court PS Prashant Vihar. On that day, he was on duty as DD writer and his duty timings were from 8:00 am to 5:00 pm. At about 01.14 pm, he received an information from Rohini Lockup telephonically by HC Ashok Kumar that one UTP Dharmender S/o Bal Chand had fled away from custody of Ct. Falentush Kullu, No. 2285/DAP by removing / releasing his hand from the hand of Ct. Falenthush Kullu and that the accused/UTP Dharmender was successfully apprehended by the said Ct. Falentush Kullu from basement after chasing him. He recorded the same vide DD No.22PP dt. 22/09/2014 in the DD register in his own handwriting. He had brought the original DD register containing the said entry. The true attested copy of the same placed in Judicial file is Ex. PW-4/A (OSR).
In his cross-examination, he denied the suggestion he was Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 4/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:00 +0530 Date: 2024.08.09 deposing falsely or that he never received any such information.
4(e). PW-5 ASI Ashok Kumar deposed that on 22.09.2014, he was posted at 3rd battalion, Rohini Court lock-up as MHC. On that day, he was on duty at Rohini Lock-up as per his usual duty hours. At around 11.00 am, the UTP namely Dharmender Kumar (accused in the present case) was released by him to Ct. Falentush Kullu for his production before court no. 307. At around 01.10 pm, Ct. Falentush along with UTP Dharmender Kumar returned back to the lock up and Ct. Falentush informed him that when he was returning back to the lockup area along with UTP Dharmender Kumar after his appearance before Court no. 307, in the midway near court no.113 at the staircase area. The UTP forcefully got removed his hand from Ct. Falentush and tried to ran away from there. After which UTP Dharmender went downstairs and tried to hide himself in the basement area, Ct. Falentush followed him and apprehended the accused Dharmender Kumar in the basement area only after which they directly brought him to Rohini Court Lock up. After this, he informed the information as given to him by Ct. Falentush to Incharge Rohini Lock Up who instructed him to take appropriate action against the accused person. He informed about the incident in Rohini Court Chowki from where HC Goverdhan along with other staff arrived at Rohini Court Lock up. IO recorded his statement u/s 161 Cr.PC in which he revealed the incident.
Accused was not present in the court, exemption application filed on his behalf.
In his cross-examination, he deposed that when Ct. Falentush returned back to Rohini Lock up along with accused, no other police official was accompanied by them. When Ct. Falentush informed him that before coming to the lock up, the incident took about 10-15 minutes in total in which the accused had tried to escape from the custody and Ct. apprehended him. As Ct. Falentush Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 5/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:06 +0530 Date: 2024.08.09 came back to the lock up, he was standing on the gate and he immediately informed him about the incident. At the same time, he informed the lock up incharge about the incident and within 3-4 minutes he informed at Rohini Court Chowki. He asked the accused regarding the incident in which he revealed that he tried to escape from the custody of Constable. The IO stayed about more than 01 hour in the lock up regarding the investigation. He denied the suggestion that a false case has been planted on the accused person by Ct. Falentush and him. He denied the suggestion that he was deposing falsely.
4(f). PW-6 ASI Gordhan Singh deposed that on 22.09.2014, he was posted at PS Prashant Vihar as HC. On that day, he received the DD entry no. 22PP from DO. When he received the DD Entry, he was present in Rohini Court, he has been informed that Ct. Falenthush Kallu was appearing the accused Dharmender Tiwari in the court room i.e. room no. 307 and when they were returning back accused Dharmender Tiwari ran away from the custody of Ct. Falenthush and he was apprehended by Ct. Falenthush in the basement and was taken to Rohini Lock Up. On receiving the dd entry, he reached to Rohini lock up along with Ct. Sultan. At that time, the accused Dharmender Tiwari was inside the lock-up. He recorded the statement of Ct. Falentush in the lock up only. The statement is Ex. PW2/A. He prepared the tehrir on the statement, same is Ex. PW6/A and handed over the Ct. Sultan for registration of FIR at PS Prashant Vihar. After that Ct. Sultan left and went to PS Prashant Vihar for registration of FIR. After that Ct. Sultan returned back at around 03.45 pm along with the copy of the FIR and original tehrir and handed over the same to him. On the instance of Ct. Falentush he prepared the site plan, same is Ex. PW6/B. He filed an application for the production of the accused person on 09.10.2014, same is marked as Mark P1 and it is already Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 6/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:11 +0530 Date: 2024.08.09 there in the judicial record. The application regarding the interrogation and formal arrest was filed on 14.10.2014, same is Ex. PW6/C. The accused person was arrested on same day i.e. 14.10.2014 in the Rohini Court Complex, the arrest memo is Ex. PW6/D. On interrogation, the disclosure statement of accused was recorded, same is Ex. PW6/E. He recorded the statement of all the other relevant witnesses u/s 161 Cr.PC. The DD entry of the lock- up has already been placed in the judicial record. After completion of investigation, he prepared the charge-sheet and filed it before the court.
The witness after looking out in the court room, could not identify the accused person present in the court.
In his cross-examination, he deposed that he did not inquire from any public person in Rohini Court. At about 01.15 pm, he was informed about the DD entry via phone from DD writer. He does not know the name of the DD writer. At 01.25 pm, he reached at lock-up Rohini Court along with Ct. Sultan. At that time, Ms. Ila Rawat, Ld. ASJ was presiding the court in room no. 307. He completed the paper work on that day at about 05.30 pm. He denied the suggestion that that he has made a false case in conspiracy with Ct. Falenthush. He denied the suggestion that accused did not ran away from the custody of police. He denied the suggestion that all paper work was done while sitting at PS. He denied the suggestion that he was deposing falsely.
4(g). PW-7 HC Kapil deposed that 14.10.2014, he was posted at PS Prashant Vihar as Constable. On that day, he along with IO /HC Goverdhan came to Rohini Court Room no. 110. IO moved an application in court no. 110 for interrogation and court allowed the same. After interrogation IO arrested the accused formally and recorded his disclosure statement vide memos already Ex. PW6/B and PW 6/A. IO gave an information to the sister of accused Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 7/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:17 +0530 Date: 2024.08.09 regarding his arrest. IO recorded his statement u/s 161 Cr.PC.
Identity of the accused was not disputed by counsel for accused.
In his cross-examination on behalf of accused, he deposed that he reached room no. 110 of Rohini Court at about 03.00 pm. Nobody was present for this case except me and IO. For an half an hour they remained at room no. 110. He denied the suggestion that he was deposing falsely and the police official has falsely implicated the accused in the present case.
5. STATEMENT OF ACCUSED:
In order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under Section 313 CrPC. In reply, the accused stated that he has been falsely implicated and his hand was caught very hardly by police officials.
6. Ld. APP for the State argued that PWs have corroborated themselves in all material particulars and accused himself could not lead any plausible defense.
On the other hand, Ld. Counsel for defense has argued that accused person has been falsely implicated in the present matter and there is no public witness despite the fact that alleged incident had occurred in the court complex at around 12:50 pm when court's proceedings were in session in various courts and litigants were present outside the courts.
This being the factual, evidentiary and the legal position of the present case, let us analyze whether the prosecution has been able to successfully prove the guilt of the accused on the touchstone of "beyond reasonable doubt".
Digitally signedROHIT by ROHIT KUMAR KUMAR 15:46:23 Date: 2024.08.09 +0530 Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 8/12
7. APPLICABLE LEGAL PROVISIONS:
At this juncture, it would be pertinent to lay bare the relevant legal principle pertaining to the alleged offence.
• Section 224 IPC. Resistance or obstruction by a person to his lawful apprehension.--Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
8. FACT IN ISSUE IN THIS CASE Whether accused Dharmender Kumar Tiwari has escpaed from the custody on 22.09.2014. To prove this issue, onus is upon the prosecution.
9. To answer the aforesaid issue, it is necessary to analyze evidence on record- oral and documentary. In this matter, prosecution to establish the story of the complainant has examined in total seven witnesses before the court. After perusal of the testimony of all witnesses. Court is of the view that testimony of PW2/complainant namely HC F. Kullu and PW6 ASI Gordhan who is IO in this case are very relevant for the decision of this case. PW HC F. Kullu was the person from whose custody accused has escaped and accused was apprehended by him only. PW2 during the examination-in-chief has deposed that on 22.09.2014, he was on production duty and on that day, at about 11:00 am, one under trial prisoner namely Dharmender Tiwari S/o Bal Chand Tiwari was produced by him before the court no. 307 in FIR no. 599/2014 u/s 376 IPC, PS Aman Vihar, Delhi. It is pertinent to mention that PW HC F.Kullu was the person who was given the duty to produce the accused in the said court and prosecution has also filed copy of ravangi peshi i.e. Ex. A1 wherein batch number of PW Ct. HC F. Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 9/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:29 +0530 Date: 2024.08.09 Kullu is clearly mentioned. PW2 further deposed in his examination in chief that when he was returning for the Rohini Court lock up alongwith the accused after production of the accused in the court no. 307, when they reached near court no. 113, the said accused escaped from his custody after releasing his hands. Thereafter, accused had gone in the basement of the court premises and hide himself there. PW2 further deposed that he caught the accused from the basement. It is pertinent to mention that as per the deposition of PW2, he had produced the accused before court no. 307 in the said FIR at about 11:00 am. On this deposition, it is important to mention that PW2 in his complaint Ex. PW2/A has stated that accused has escaped from his custody at about 12:50 pm near court no. 113. Moreover, as per rukka, the time of incident has been mentioned as 12:50 pm. In such circumstances, it has been reflected that there was the gap of 1 hour 50 minutes between the production of the accused in the said court and alleged incident. It is pertinent to mention that IO has not investigated the fact that how much time was spent in the proceeding for production of the accused before the court no. 307. IO has not investigated the case why there was the gap of 1 hour 50 minutes between production of the accused and the alleged incident. It is again pertinent to mention that in the charge sheet, IO has nowhere mentioned how much time was taken during the production of the accused in court no. 307. Court is of the view that investigation was required regarding the exact time when the accused was produced before the court, time taken during the production before the court no. 307 and when accused had come out of the court no. 307 alongwith PW2. However, same has not been done by the IO.
It is again pertinent to mention that as per the statement of PW2 recorded u/s 161 Cr.P.C, the site plan Ex. PW6/B was prepared at his instance. However, perusal of same shows that site plan does not bear the signature of PW2. This creates the doubt in Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 10/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:35 +0530 Date: 2024.08.09 the story of the prosecution. PW2 has specifically deposed in his cross-examination that accused was apprehended when he was trying to hide himself between two walls/pillars and he has shown the place where the accused was apprehended also. On this deposition, it is pertinent to mention that neither the pillar number nor place of apprehension of the accused from the basement has been shown in the site plan, this has also created the doubt in the story of the prosecution. Court is of the view that non-mentioning of pillar number and exact location from where accused was arrested in the site plan is one of the remissness and inefficiency in the investigation by the police. Moreover, despite the fact that site plan was stated to be prepared at the instance of PW2, but said site plan Ex. PW-6/B reflects that same has not been signed by PW2. Court is of the view that site plan in any of criminal case is such a document which should reflect all the particulars which are relevant for the case. However, in this case, as discussed above, pillar number and exact location from where, accused was arrested is not mentioned. The said site plan has not been prepared properly and lacking the key details of the case. Therefore, this fact has created the doubt in the story of the prosecution.
Moreover, in this case, all the witnesses are police officials. It is correct that testimony of police officials cannot be ignored or discarded during the appreciation of the evidence, but in this case, there are abovementioned peculiarities and inefficiency or remissness in the investigation by the police which has created the doubt in the story of the prosecution, therefore, testimony of police officials cannot be relied unless corroborated by any independent witness. In this matter, the alleged incident of escaping from the custody had occurred in the court complex and it is very difficult to understand why IO has not taken any step to ensure the involvement of the public witnesses.
In this case, as per the deposition of PW2 he has Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 11/12 ROHIT Digitally signed by ROHIT KUMAR KUMAR Date: 2024.08.09 15:46:40 +0530 apprehended the accused when accused had escaped from his custody within 3-4 minutes. Court is of the view that it is highly unbelievable that one person who has escaped from the custody and concealed himself in the basement of the court premises was followed, found and apprehended within 3-4 minutes.
It is pertinent to mention that IO PW HC Gordhan has failed to identify the accused before the court which has raised the doubt in the story of the prosecution. Moreover, in this matter, IO has not done any investigation with respect to the fact that whether alleged incident had recorded in any CCTV footage or not. In such situation, the story of the prosecution remained uncorroborated.
10. Court is of the view that due to peculiarity as discussed above, prosecution has failed to establish the allegations against the accused u/s 224 IPC beyond the reasonable doubts and accused has successfully created doubt in the story of the prosecution. Accordingly, accused Dharmender S/o Sh. Balchand Tiwari is acquitted for the charges u/s 224 IPC.
ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:46 +0530 Date: 2024.08.09 Announced in open.
court on 09.08.2024 (ROHIT KUMAR)
MM-04 (North) Rohini Courts
Delhi/09.08.2024
Certified that this judgment contains 12 pages, and each page bears my signature. ROHIT Digitally signed by ROHIT KUMAR KUMAR 15:46:50 +0530 Date: 2024.08.09 (ROHIT KUMAR) MM-04 (North) Rohini Courts Delhi/09.08.2024 Cr. Case 5291814/2016 STATE Vs. Dharmender Kumar Tiwari FIR No.1105/2014 Page 12/12