Delhi District Court
State vs Jai Narayan & Ors. on 3 July, 2013
IN THE COURT OF SH. PAWAN KUMAR, MM12,
SOUTH EAST, SAKET COURTS, DELHI
State Versus Jai Narayan & Ors.
FIR No. : 763/95
P.S. : Sri Niwas Puri
Under Section : 147/148/186/353/427
IPC
1. Serial No. of the case : 355/01
2. Date of commission of offence : 25.09.95
3. Name of the Complainant : SI Yad Ram
4.Name of the accused and his : (1) Jai Narayan
parentage & residence address : S/o Late Sh. PC Sharma
R/o 115A, Hari Nagar
Ashram, New Delhi.
(2) Gainda Lal
S/o Sh. Mishri Lal
R/o 9697 Sarai Kale
Khan, Nizamuddin, New
Delhi.
(3) Tajuddin
S/o Sh. Nasruddin
R/o T86, Hajrat
Nizamuddin, New Delhi.
(4) Anil Sharma
S/o Sh. P.C. Sharma
R/o 114/143, Hari Nagar,
Ashram, New Delhi.
5.Date when judgment reserved : 06.06.2013
6.Date when Judgment pronounced : 03.07.2013
7.Offence Complained of or proved : Section 379/411 IPC
8.Plea of accused : Pleaded not guilty
9.Final Judgment : Acquitted
FIR No. 763/95
State Vs. Jai Narayan & Ors. Page No. 1 of 18
1. In nutshell the prosecution case as taken out from the chargesheet is as follows: On recording of DD no. 5B regarding quarrel, SI Yadram alongwith other police staff reached at shop no. 114, Hari Nagar, Ashram and there recorded the statement of injured Vijender. On that statement a separate FIR no. 762/95 was registered. Further on the same day a crowd of 100/150 people gathered there and started moving towards Jasram Akhara. The SHO, Addl. SHO, PS Sri Niwas Puri alongwith other police personnel were present at Red light of Ashram chowk and tried to stop the crowd. The crowd was pelting stones at the Akhara. On intervention by the police the crowd led by above named accused persons started throwing stones at the police party which caused damage to police vehicles. The gathering was declared unlawful and accordingly the present case FIR was got registered after preparing the rukka. In brief as per prosecution this incident was the repercussion of beating of employee of the accused by Pehalwan of Jasram Akhara.
2. After completion of investigation, charge sheet was filed against the accused. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. After considering the contents of the charge sheet and hearing the submission made by both the parties, charge was framed U/s 147/148/149/186/353/332/427 IPC against the accused on 31.01.07 to which they pleaded not guilty and claimed trial.
FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 2 of 184. In order to establish the charge against the accused persons the prosecution examined total seven witnesses.
5. PW1 Ct. Gabrudin was witness to the arrest of accused Govind Lal and Tajudin. He deposed that on 16.12.95 on receiving the secret information and at the pointing out of Ct. Satish, ASI Raj Singh arrested the above said two accused persons vide arrest memo Ex PW1/A and PW1/B. During the course of cross examination he stated that his statement was recorded by investigating officer on 16.12.95 whereas on his statement u/s 161 Cr.PC date is mentioned as 16.12.96. He also stated that at the time of arrest some public persons were present and IO asked them to join the investigation but no body agreed. Admittedly, no notice was given by IO.
6. PW2 Inspector Ramesh Kumar was posted as Addl. SHO at Police station Sri Niwas Puri. He deposed that on direction of SHO he accompanied SI Yadram to attend the call regarding the quarrel near Ashram Chowk and reached at the spot. He further deposed that SI Yadram recorded the statement of one Virender and during recording of statement, Jai Narain, Anil Sharma and about 100 people came from Ashram chowk side. He further deposed that SHO also reached at the spot and gave warning to the gathered people to disappear from the spot but they started pelting stones upon the police party. The vehicles were damaged. He deposed that all the accused persons present in the court had gathered at the spot and pelted stones on the police party.
During cross examination he stated that he reached at the spot alongwith about 8 other staff members but he could not FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 3 of 18 recall their names. He stated that the statement of Virender was recorded near Jasram Akhara. He further stated that they went straight to Jasram Akhara from police station and he was not aware about location of H. No. 114, Hari Nagar Ashram. He denied the suggestion put by defence counsel that statement of Virender was recorded at shop no. 114 Hari Nagar Ashram. He further stated that the crowd was heading towards Akhara from Ashram chowk. Accused persons were not known to him prior to the incident he further stated that he cannot identify any one from the crowd if they are produced before him today except the accused persons. He stated that his statement was not recorded by police in this case, but his statement u/s 161 Cr.PC is on record. As per PW2 no accused was arrested from the spot. In his cross examination he was not aware as to location of shop near Jangpura flyover. He also shown ignorance whether any visible injuries were sustained by any one in the scuffle.
7. PW3 HC Parmender Kumar was duty officer at PS, Sri Niwas Puri on the day of incident. He deposed to have recorded the present FIR and the copy of the same is Ex PW3/A and endorsement on the rukka is Ex PW3/B. During the cross examination he produced the copy of FIR no. 762/95 and copy of the same is Ex PW3/C.
8. PW4 SI Om Prakash conducted the part investigation and arrested the accused Anil Sharma who was admitted on bail by the court.
9. PW5 Retired SI Yad Ram is the star prosecution witness. He FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 4 of 18 deposed that on 25.09.95 after receiving the DD no. 5B he reached at the spot alongwith constable whose name he could not recollect. He further deposed that there he found Virender and Jai Narayan and recorded their statement regarding quarrel at the spot started by Pehalwan. He also stated that on the basis of the statement he got the FIR no. 762 registered. He also deposed that public persons gathered at the spot and started moving towards Ashram chowk, where SHO and Addl. SHO were already present there. SHO had demanded for additional force. He further deposed that the crowd of 100 150 people were throwing bricks towards Jasram Akhara and on being warned by SHO, the crowd was disbursed from there. He further deposed that the crowd started throwing bricks on the government vehicle and the vehicle received dents. He deposed to have prepared rukka Ex PW5/A and got the present FIR registered through ASI Raj Singh. Thereafter, the investigation was handed over to ASI Raj Singh. He also deposed that IO prepared site plan Ex PW5/B. He identified the accused Jai Narayan, Anil Sharma and Vasant Sharma.
In his cross examination he deposed that the accused persons were not known to him before the incident and saw them in the crowd. But he could not give the description of any other person in the crowd of 150 to 200 persons. He also stated that there were other shops by the side of shop no. 114 but he recollected the shop no. 114 only because the shop was damaged and occupants were beaten by the wrestlers. He further stated that the crowd was throwing stones from the crossing of Ashram. He further deposed that the crowd was towards shop no. 114 from where they were throwing stones. He stated that Jasram Akhara may be about 300 yards from shop no. 114 and further the crowd FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 5 of 18 was stopped before crossing near fire brigade office. The police vehicle were stated to be on red light. He stated that no other vehicle were damaged except the two police vehicles. He also stated that the crowd stopped and disbursed on reaching the police. He further deposed that the site plan on the face of it is false. He also stated that the Akhara is far away from Ashram crossing and there are shops and building before this Akhara. He admitted the suggestion that the crowd had no grievance against the police and they had not stopped the police from doing their duty. He further stated that names of all accused were told by Akhara men and the crowd gathered there.
10. PW5 Ct. Satish Kumar deposed that on 25.09.95 he was present at shop no. 114, Hari Nagar Ashram alongwith ASI Raj Singh. He further deposed that concerned SHO alongwith other police staff visited the aforesaid shop. He deposed that they went towards Jasram Akhara and from Akhara side a crowd of 100150 people was coming and pelting stones and in that course gypsy of SHO got damaged. He identified the accused persons in the court as they were part of the crowd. He further deposed that ASI Raj Singh prepared the rukka and got the FIR registered through him. IO ASI Raj Singh stated to have prepared the site plan. He deposed that accused Jai Narayan was arrested in his presence.
PW5 was cross examined by Ld. APP and replied in affirmative the suggestion put by Ld. APP.
During his cross examination by Ld. Defence counsel he show the ignorance to the question on material particulars like time of receiving DD entry, duration he remained at the spot, number of police personnel present at the spot and the FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 6 of 18 movement of the mob etc. He stated in the cross examination that accused Jai Narayan was arrested at the spot by the IO.
11. PW7 R.K. Meena was Assistt. Commissioner of Police and made a complaint u/s 195 Cr.PC which is Ex PW7/A. In his cross examination he stated that he had given the complaint to IO. He admitted that the complaint does not bear any date. He also admitted that he had not interrogated any of the witness of this case.
12. All the incriminating circumstances came in prosecution evidence put to the accused while recording the statement U/s 313 r/w 281 CrPC. He denied the incident and plead false implication by the police.
13. The accused Jai Narain examined himself as DW1. His deposition in brief is that at the time of incident he was not present at the spot as he was suffering from kidney problem and was undergoing regular dialysis. He relied on the medical documents in order to establish that due to his medical condition he was not in a position to move freely. He deposed that he came to know about the incident regarding the quarrel which took place in front of his shop. During cross examination he denied that he was present at the spot at the time of incident and stated that he heard about the incident from some other person namely Vijender and Sanjay.
14. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 7 of 18 materials available on record.
15. All the accused persons are facing the trial on charge of offence u/s 147/148/186/353/427/149 IPC with the allegation that the above mentioned accused persons constituted the unlawful assembly and lead the mob which voluntarily obstructed and assaulted the police personnel in discharge of their duties. Further the unlawful assembly damaged the police vehicles by pelting stones.
16. In the present case prosecution examined total 7 witnesses. Out of the witnesses examined, PW2, PW5 and PW6 are the material prosecution witnesses as they are alleged eye witnesses and stated to be present at the spot at the time of the incident. The remaining prosecution witnesses are formal in nature as far as the merit of the case is concerned. I have carefully perused the prosecution evidence. The testimony of PW2, PW5 & PW6 is contradictory on material particulars of the prosecution case.
17. PW2 deposed that on the alleged date he accompanied SI Yad Ram to attend the call regarding quarrel near Ashram chowk and SI Yad Ram recorded the statement of one Virender. He also deposed that during the recording of statement the accused Jai Narayan, Anil Sharma alongwith around 100 peoples came from Ashram chowk side and started pelting stones upon the police party. Whereas as per PW5 on receiving the DD no. 5B he reached at the shop of Jai Narayan and recorded the statement of Virender and on which the FIR no. 762/95 was registered. He also deposed that the public persons gathered at the spot and started moving FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 8 of 18 towards Ashram chowk. Interestingly, PW5 is silent as to the presence of PW2. He deposed that he alongwith Ct., whose name he could not recollect, reached at the spot after receipt of DD no. 5B.
18. PW2 stated in his cross examination that SI Yad Ram met Virender at Jasram Akhara and recorded his statement there. He denied the suggestion that the statement of Virender was recorded at shop no. 114. He also stated that in the cross examination that he went directly to the akhara from the PS and he had not visited the shop no. 114 on the day of incident. As per PW5 on the alleged day of incident after receipt of DD no. 5B he reached at the spot and recorded the statement of Vijender. He also deposed that he found Jai Narayan there and also recorded his statement as the quarrel had taken place at his shop. Therefore, as per the deposition of PW5 the statement was recorded at the shop and not at the Jasram Akhara. Even in the rukka prepared by PW5, it is mentioned that PW5 reached at the shop no. 114, Hari Nagar, Ashram and there recorded statement of Vijender. Apart from PW2 and PW5, another important prosecution witness PW6 deposed that the statement of Virender was recorded by ASI Raj Singh in his presence. PW6 is silent as to the presence of PW2 & PW5.
19. PW5 stated that on the day of incident when he reached at the spot public persons had gathered at the spot and started moving towards Ashram chowk where SHO and Addl. SHO were present. He further stated that the crowd of about 100 to 250 people was throwing bricks towards jasram Akhara. During his FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 9 of 18 cross examination he stated that the crossing was manually regulated and the crowd was towards shop no. 114 from where they were throwing stones. As per PW2 the crowd came from Ashram Chowk side and gathered at Jasram Akhara where they were present and started pelting stones. As per the evidence of PW6 the mob of 100 to 250 people was coming from Akhara side and they were pelting stones in which the police vehicles were damaged. The deposition of PW2, PW5 & PW6 is contradictory as far as the location and movement of the crowd is concerned. Allegedly, the stone were pelted on the police party from Ashram Chowk as deposed by PW5. Whereas the crowd was gathered at Jasram Akhara as per PW2 and PW6. The version of the eye witnesses is not supported by the site plan which was prepared by ASI Raj Singh who is not examined by the prosecution as witness. PW5 categorically stated in his cross examination that the site plan Ex PW5/B was prepared at his instance, however, the site plan on the face of it is false as the location are not correctly shown in the site plan.
20. Admittedly, the crowd was throwing bricks from the Ashram chowk towards Jasram Akhara which is at the distance of around 200 to 300 yards. Admittedly, there are shops and residential buildings in between Ashram Chowk and Jasram Akhara. Further more, the vehicle of the police party were stationed at the red light of the Ashram Chowk and the alleged incident took place around 10.30 am. Surprisingly, no private vehicle was damaged in the incident. It is highly improbable, if not impossible, that in the incident of stone pelting by the crowd of 100 to 150 people and that too at the busy road at peak hours FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 10 of 18 not even a single private vehicle was damaged. Moreover, the alleged police vehicle which were damaged in the incident were not got mechanically inspected by the IO.
21. As per the case of the prosecution PW5 SI Yadram prepared the rukka and got the present FIR registered. The investigation was later assigned to ASI Raj Singh. However, as per PW6 ASI Raj Singh recorded the statement of Virender and prepared the rukka which he took for registration of FIR. The evidence of PW6 is totally contradictory to the case of the prosecution.
22. Admittedly, the accused persons were not known to the eye witnesses prior to the incident. Out of the crowd of 100 to 150 people, all the eye witnesses examined by the prosecution correctly identified the accused persons present in the court. However, the witnesses were unable to give description of any other person who were part of the crowd. In the rukka prepared by PW5 it is mentioned that the assembly was declared unlawful after giving warning by the concerned SHO and the crowd had disbursed. Thereafter, the crowd leaded by the accused Anil Kumar Sharma, Jai Naryan, Basant Sharma and Sameer pelted stones on the Jasram Akhara and police vehicles. In the rukka the other two accused persons were not named by the IO. Further none of the accused was arrested from the spot. The accused Tajudin and Ganda Lal were arrested on 16.12.95 by ASI Raj Singh in the presence of PW1 Ct. Gabrudin and PW6 on the information of the secret informer. It is also admitted by PW5 that the names of all the accused were told by Akhara man and the crowd gathered there. Admittedly, there was a FIR against the akhara FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 11 of 18 persons on the complaint of the present accused persons, as the pehlwan had damaged the shop of the accused Jai Narayan. On the facts and circumstances of the case, it is beyond understanding that how the accused persons were named in the rukka when they were not known to the IO prior to the incident. Further arraying only five persons as accused out of the mob of 100 to 150 persons could not be explained by the prosecution.
23. The accused Jai Narayan examined himself as DW1 and took the plea of alibi on the ground that on the day of incident he was undergoing for the regular dialysis and was not in position to move. In order to substantiate his defence he relied upon the medical certificate which are quite satisfactory. The accused Jai Narayan was named in the rukka by the IO. The accused Jai Narayan and Basant Sharma were arrested on appearance before the court on 18.03.96. However, as per PW6 the accused Jai Narayan was arrested at the spot in his presence.
24. It is a settled principle that in order to rely upon the eye witnesses, it is sinaquanon for the prosecution to establish the presence of the witnesses at the spot. In case, there are two or more eye witnesses, each witness should support the presence of the other witness. In the present case, PW2, PW5 & PW6 are silent as to the presence of each other. The evidence of the above said witnesses are contradictory to each other and do not support the case of the prosecution. Moreover, there are inherent infirmaties in the testimonies of PW2, PW5 & PW6 which make them unreliable and their evidence do not inspire any confidence. Therefore, PW2, PW5 & PW6 are unreliable and untrustworthy.
FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 12 of 1825. Allegedly, the whole incident took place in the presence of the concerned SHO. The assembly was declared unlawful after giving warning by the SHO. The assembly was disbursed on his direction and the crowd started pelting stones in the presence of the SHO in which his gypsy was alleged to be damaged. He was the important witness for the prosecution but he was not cited in the list of prosecution witnesses.
26. The accused persons are facing the allegation that they voluntarily obstructed the police party in discharge of their duty. PW5 stated in his cross examination that when police force reached at the spot and stopped the crowd, the crowd stopped and disbursed. He also admitted that the crowd was having no grievance against the police and they had not stopped the police from doing their duty. Hence, the prosecution case is demolished on this aspect.
27. The other lacuna in the investigation is that despite the presence of the public persons at the spot, they were not joined in the investigation by the IO. Admittedly, the fire brigade workers, shopkeepers, and residents of the locality were present, however, they were not joined in the investigation. Moreover, the IO had not inquired from any of the shopkeeper adjoining to the shop no. 114, Hari Nagar, Ashram. In the attending facts and circumstances, the non joining of the public persons is fatal to the case of the prosecution.
28. Apart from the merits of the case, there is a technical aspect to the case that section 195 Cr.PC bars the cognizance of offence FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 13 of 18 u/s 186 IPC except on the complaint made by the public servant.
It is argued that in the present case the complaint U/s 195 CrPC was annexed with the charge sheet which was addressed to the concerned SHO and not to the court. Therefore, the complaint U/s 195 CrPC was defective and it does not fulfill the criteria as defined in Section 2 (d) of the CrPC. Therefore, cognizance is barred U/s 195 CrPC. I agree with the submissions made by the defence counsel that Section 195 CrPC put a specific bar on cognizance of the certain offences as mentioned in Section 195 CrPC. I am convinced with the contentions of the accused that this complaint is defective and does not comply with the conditions of Section 2 (d) CrPC. On careful reading of the complaint Ex PW7/A, it is prayed in the last para that the undersigned may kindly be exempted from personal appearance through Ld. APP. One of the essential ingredient of the complaint as defined in Section 2 (d) CrPC is that the complainant should be made with a view to take action by the court. The present complaint U/s 195 CrPC seems to be more or less exemption application and not the complainant.
It is submitted by the applicant/accused that Section 195 CrPC regulate the competency of the court. This section gives exemption in compliance therewith as the section bar its jurisdiction. I am convinced with the submissions of the defence counsel that since the section barred the jurisdiction of Magistrate to take cognizance, if he does not take cognizance in accordance with provision of this section, the cognizance would be illegal and without jurisdiction.
Now the question arises, if the facts of the case read as whole constitute a separate and distinct offence for which no complaint FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 14 of 18 U/s 195 CrPC is required, whether the court can proceed with respect to these offences? On this issue, it is argued on behalf of the counsel for the accused that the facts of this case, the other offences for which the accused persons were charged with are closely connected with the primary offence of obstructing the public servant U/s 186 CrPC. It cannot be said to have constituted a separate individual offence of which cognizance could be taken without a complaint of the public servant, as mandated by Section 195 CrPC. On this aspect, however, not relied upon by the defence counsel, I found strength from the following judgments:
(1)Makardhwaj Vs. State AIR 1954 Orissa 175 (2)Bassir ul Huq Vs. State AIR 1953 SC. (3)Janki Prasad Tibrewal and Ors Vs. State of Bihar 1975 Crl. L.J.
575.
(4) Vasudev S. State High Court of Delhi 1984 RLR 689.
In the case of Janki Prasad Tibrewal & Ors Vs. State of Bihar, hon'ble Supreme Court while discussing above mentioned two judgments held that the prosecution is not entitled to split the facts of the case for the purpose of circumventing the provision of Section 195 CrPC. The Hon'ble court further held that "considering these decisions it is clear that the real test is whether the facts alleged against an accused disclosed two distinct offences or whether the facts disclosed primarily an offence for which a complaint by a public servant is required".
So to sum up the gist of the above mentioned judgments is that Section 195 CrPC does not bar the trial of the accused person for a distinct offences disclosed by same facts which is not included within the ambit of that Section. The provision of Section 195 CrPC cannot be evaded by resorting to devices of FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 15 of 18 camouflage. The test whether there is evasion of the Section or not is whether the facts discloses primarily and essentially the offences for which a complainant or a public servant is required.
I am fortified by the judgment of Hon'ble Supreme Court titled as Durga Charan Naik & Ors Vs. State of Orissa AIR 1966 SC 1775, wherein it was observed "it is true that most of the allegations in this case upon which the charge under Section 353 IPC is based are the same as those constituting the charge under Section 186 IPC but it cannot be ignored that S 186 IPC and 353 IPC relate to two distinct offences and while the offence under the later section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186 IPC is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353 IPC, the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of th two offences is also different."
In view of the above discussion, I am of the view that in the present case the facts which discloses the commission of offence u/s 147/148/149/427/353/332 IPC are closely connected with the facts attracts the provision of section 186 IPC. The facts of the present case discloses primarily and essentially the commission of offence u/s 186 IPC and therefore, the provision of section 195 Cr.PC cannot be evaded by charging the accused persons for the FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 16 of 18 distinct offences.
29. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused persons beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused persons. Thus, this court is of the considered view that the benefit of doubt in the present case be given to the accused persons and they are entitled to be exonerated on the charges against them in the present case.
30. In view of the above mentioned discussions, the prosecution miserably failed to establish the case beyond reasonable doubt against the accused persons. Accordingly the accused persons namely are acquitted for commission of the offence u/s 147/148/149/186/353/332/427 IPC.
Apart from the merits and facts of the case, this case is a glaring example of manipulative skills of police authorities and fabricating false case out of no case. This case also highlights the importance of the cross examination of witness in order to unearth the truth. The contents of the charge sheet and the testimony of prosecution witnesses is totally contradictory to each other. The alleged eye witnesses does not support the presence of each other. The evidence of prosecution witness is contradictory and totally unreliable. PW2 & PW6 appears to be planted or otherwise. PW6 in his cross examination shows ignorance and replied " I do not remember........" on important facts. One of the important prosecution witness PW5 refuted the site plan prepared by the IO. The last but not lest the complaint made by ACP u/s 195 Cr.PC FIR No. 763/95 State Vs. Jai Narayan & Ors. Page No. 17 of 18 was drafted in a very casual manner and the same was addressed to the SHO and not to the court. The apathy and callous attitude of the police officers in conducting the investigation and thereafter, in deposing before the court is highly disturbing. In the last it can be said either the accused persons were falsely implicated or the evidence was given by the police witnesses in the court in contradiction to the case of the prosecution for some ulterior motives. Copy of the judgment be sent to the office of the Commissioner of Delhi Police and concerned DCP, for information and appropriate action.
Announced in open Court (PAWAN KUMAR)
on 03.07. 2013 Metropolitan Magistrate - 12,
South East, Saket Courts.
FIR No. 763/95
State Vs. Jai Narayan & Ors. Page No. 18 of 18