Delhi District Court
Vinod Maheshwari vs State on 27 September, 2022
IN THE COURT OF SH. SANJAY GARG I
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI.
Criminal Appeal No.204107/2016
VINOD MAHESHWARI
S/O SH. B.S. MAHESHWARI
R/O B/I 202, YAMUNA VIHAR
NEW DELHI
... APPELLANT/ACCUSED
VERSUS
STATE
NCT OF DELHI
THROUGH SHO
PS DEFENCE COLONY
NEW DELHI.
...RESPONDENT
Date of Institution : 04.12.2005
First Date Before This Court : 30.04.2022
Arguments Heard : 12.09.2022
Date of Decision : 27.09.2022
JUDGMENT
1) The present appeal u/S.374 Cr.P.C. has been filed assailing the impugned judgment dated 30.09.2014 vide which the appellant/accused has been convicted under Section 186/332/353 IPC and the impugned order on sentence dated 07.10.2014 vide which he has been sentenced to undergo SI till rising of the court and fine of Rs.500/ for the offence under Section 186 IPC and fine of CA No.204107/2016 Vinod Maheshwari Vs. State Page 1 of 14 Rs.2,000/ each for the offence under Section 332 and 353 IPC.
2) Brief facts as per the record are that on 16.04.2005 Ct.
Veerbhan (PW1) and Ct. Ayazuddin (PW4) were on picket duty near Red Light, Kotla Mubarak Pur and checking suspected vehicles. At about 07:40 pm one person on Pulsar Motor Cycle No.DL35B6400 came from the side of Kotla Mubarak Pur. He was stopped for checking and when asked to show DL and documents of the vehicle, he started misbehaving with them. He caught hold PW1's collar and quarreled with them due to which PW1 fell down on the road. PW1 and PW4 suffered injuries. During inquiry, the name of person was found as Vinod Maheshwari (appellant/accused). He was arrested. Injured were taken to AIIMS hospital for treatment. On this, case FIR No.206/05 under Sections 353/186/332 IPC was registered. After completion of investigation, chargesheet was filed. Charge under Sections 186/332/353 IPC was given to the appellant to which he pleaded not guilty and claimed trial.
3) Prosecution examined 10 witness in all, in support of its case. PW1 Ct. Veerbhan and PW4 HC Aiyazuddin were on picket duty at the time of incident. PW2 Sunil Kaushik and PW3 Daya Shankar Chaubey are stated to be eye witnesses to the incident. PW5 HC Surender got recorded the FIR in the present case on receipt of a tehrir by the IO. PW6 HC Vijender was on patrolling duty on 16.04.2005.
CA No.204107/2016 Vinod Maheshwari Vs. State Page 2 of 14He reached the spot while patrolling where PW1 and PW4 handed over one motorcycle to him. PW7 ASI Jitender Kumar is the Investigation Officer. PW8 Ajit Singh, Record Clerk from AIIMS hospital and proved the MLCs of injured PW1 and PW4 as Ex.PW8/A and Ex.PW8/B. PW9 HC Shriman Lal has submitted the chargesheet of this case in the court. PW10 Retd. ACP H.P.S. Cheema has proved the complaint under Section 195 Cr.PC, Ex.PW10/A sent by him to the court for taking cognizance.
4) In his statement recorded under section 313 Cr.PC, the appellant denied all the allegations and stated that he is innocent and has been falsely implicated. It is stated that there was no picket at the spot. He was stopped by some police officials. There were 34 police officials. Two of them were PW1 and PW4, who had beaten him. He had shown the police officials his DL. They asked him to produce RC however he could not produced the same and when he asked them to file a challan against him or to seize his bike, they refused and asked him to pay bribe. On his refusal to pay bribe, they started abusing and beating him.
5) Learned Trial Court after appreciating the evidence and material on record vide impugned order dated 30.09.2014 convicted the appellant under Sections 186/332/353 IPC and sentenced him accordingly vide order dated 07.10.2014. Aggrieved by the said order, the appellant has preferred the CA No.204107/2016 Vinod Maheshwari Vs. State Page 3 of 14 present appeal challenging the order of conviction and sentence.
6) Learned counsel for the appellant has submitted that learned Trial Court has failed to appreciate that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and therefore, the impugned judgment is liable to be set aside. It is stated that learned Trial Court has failed to appreciate the complaint lodged by the appellant against the erring police officials for their illegal acts and misuse of power. Learned counsel has vehemently argued that there are material contradictions and improvements by the prosecution, which the learned Trial Court has failed to recognize. It has been stated that the learned Trial Court has failed to appreciate that none of the witnesses confirmed that they have seen the appellant beating the policeman. The prosecution has failed to establish the incident of two police constables beaten by the appellant beyond reasonable doubt. Even both the public witnesses have deposed that the police officials were beating the motorcyle rider who was taken to picket/beat room by the police officials.
7) On the other hand, learned Chief Public Prosecutor for State has submitted that the prosecution has successfully proved its case against the appellant beyond reasonable doubt. Testimonies of both the witnesses i.e. PW1 and PW4 are consistent and despite cross examination, nothing incriminating has come. It has been stated that CA No.204107/2016 Vinod Maheshwari Vs. State Page 4 of 14 contradictions which occurred in the statement of witnesses are minor in nature and does not go into the root of the case. It is stated that learned Trial Court has passed a well reasoned order and rightly convicted the appellant and sentenced him accordingly.
8) I have heard Sh. Vishwa Bhushan Arya, learned counsel for the appellant as well as Sh. Salim Khan, learned Chief Prosecutor for State and have perused the record and evidence led therein.
9) PW1 Ct. Veerbhan is the important witness of the prosecution who was on picket duty on the day of incident alongwith other police officials. He deposed that on 16.04.2005, he alongwith Ct. Ayazuddin (PW4) was posted at red light Kotla Mubarakpur, Varun Marg, near Defence Colony Market for anti snatching picket duty. Accused came on motorcycle make Pulsar bearing No.DL3SB6400 from the side of Kotla Mubarakpur red light. Since he was not wearing helmet, he was stopped and asked to produce RC, DL etc. Number plate on the motorcycle was also not in correct format. He failed to produce the requisite documents and misbehaved with them and caught hold of his collar and torn his uniform and pushed him due to which he fell down and sustained injuries on his right hand and left leg. He alongwith Ct. Ayazuddin caught hold of him and inform PS from there HC Jitender (PW7) and some other police officials came at the spot and recorded his statement, CA No.204107/2016 Vinod Maheshwari Vs. State Page 5 of 14 Ex.PW1/A. HC Jitender took him to AIIMS hospital for his treatment. After returning back to spot HC Jitender prepared site plan, Ex.PW1/B, seized motor cycle vide memo, Ex.PW1/C, arrested the accused vide arrest memo, Ex.PW1/D and took his personal search vide personal search memo Ex.PW1/E. During cross examination, PW1 stated that he denied the suggestion that accused was wearing helmet and had all the relevant papers with him regarding his motorcycle and that they were drunk or under the influence of liquor asked money from accused and when he refused to pay money, they falsely implicated him in the present case. He also denied that when accused refused to pay, PW4 started beating him with danda and dragged him toward the other side of the road. PW1 admitted that accused had lodged a complaint against them with the then DCP Sh. Anil Shukla as well as the matter was reported in newspaper Punjab Kesari dated 26.04.2005 and he was summoned in pursuant to that complaint. However, he has not faced any departmental inquiry of censure till date in his career.
10) PW4 Ct. Ayazuddin is another eye witness and also a victim of this incident. As deposed by him on 16.04.2005, he was posted as Constable at PS Defenc Colony and was on picket duty at Varun Marg, Defence Colony as the same was suddenly fixed after the information of Anti snatching. At about 7:45 pm, one motorcycle was seen coming from CA No.204107/2016 Vinod Maheshwari Vs. State Page 6 of 14 the side of Kotla, which was having no number plate on it. Only one person was sitting on the said motorcycle. He alongwith PW1 was present at the spot. They both stopped the said motorcycle and PW1 asked for the documents of the motorcycle and DL of the motorcycle rider but he failed to produce the same. On this, said person stated "you both did not know me." On this a scuffle took place between PW1 and that person. PW1 fell down. On seeing this, he reached near PW1 and that person also misbehaved with him and pushed him as a result of which he fell down on the road. Name of that person was revealed as Vinod Maheshwari. In the meanwhile, HC Jitender (PW7) and one constable reached at the spot. PW1 narrated the whole incident to them. Statement of PW1 was recorded. The address disclosed by the accused was found to be fake. PW7 send him and PW1 to the hospital for medical treatment alongwith one constable. After medical treatment, they all came back to the spot. During cross examination, PW4 has stated that number plate affixed on the motorcycle is the same which was affixed on the date of incident. He had asked the accused for his DL and papers of the vehicle but accused had not produced any papers. He admitted that he was authorized to confiscate the vehicles and he could have confiscated the motorcycle of the accused. To establish his defence that he was beaten up by the police officials, photographs, Ex.P2 was filed by the appellant on record and CA No.204107/2016 Vinod Maheshwari Vs. State Page 7 of 14 same was shown to this witness. After seeing this photograph, PW4 has stated that in the photograph it is clear that accused is bearing injury marks. He denied the suggestion that accused had asked them to challan because he was not having any papers or to confiscate the motorcycle. He denied the suggestion that at that time, they were drunk and dragged the appellant on the side of the road where he caught hold of the grill and was not moving. He has admitted that appellant had lodged a complaint regarding this incident with the DCP and the matter was reported in the newspaper Punjab Kesari on 26.04.2005. He admitted that he was called at the DCP office in this regard but he does not know if motorcycle was confiscated or challaned by the IO or police on account of not having the papers of the said motorcycle.
11) PW2 Sunil Kaushik and PW3 Daya Shankar Chaubey are the two public witnesses and are most material witnesses from the prosecution point of view but they have turned hostile and have not supported the case of the prosecution. PW2 Sunil Kaushik has deposed that in April 2005 during evening time at Defence Colony Market corner on the road approaching Defence Colony Market from Kotla side there was a police picket. He saw an altercation taking place between the police officials and one motorcycle rider. Public had gathered at the spot and he saw the police officials beating the motorcycle rider. The motorcycle rider CA No.204107/2016 Vinod Maheshwari Vs. State Page 8 of 14 was taken to the picket/beat room by the police officials. During his cross examination by the State, he has deposed that he is the owner of the shop in front of Nathu Sweets at Defence Colony market. He admitted that on 16.04.2005 at about 07:40 pm PW1 and PW4 were checking the vehicles by placing the barricades. He has failed to identify the appellant as the same person who was driving the motorcycle and who had an altercation with the police officials. He deposed that he had seen the appellant for the first time in his life. He has denied the various suggestions put by the State to him. During his cross examination by the appellant, he deposed that his statement, Ex.PW2/A was given by him to the police at the behest of beat constable whose name he does not remember. He pressurized him to make this statement. He admitted that he had not seen the incident regarding asking about the documents by the two picket constables. He has further deposed that he had not seen the appellant fighting/quarreling with the two constables whose name appeared in Ex.PW2/A. He volunteered that he was at his shop and he did not see the exact happening.
12) PW3 Daya Shankar Chaubey has deposed that in the month of April 2005 he was having a flower shop in front of Nathu Sweets, Defence Colony market. A check post was raised at Kothi No.333 and police persons were checking the vehicles which were passing from there. At about 07:00 CA No.204107/2016 Vinod Maheshwari Vs. State Page 9 of 14 pm or 07:30 pm, one bike came and stopped, there was a noise and public persons gathered at the spot. The biker was taken to police post and thereafter, he does not know what happened. During his cross examination by State, he denied his entire statement, Ex.PW3/A recorded by the police. He denied the suggestion that accused is the same person who had quarreled with Constables PW1 and PW4 and had injured them.
13) PW7 IO ASI Jitender Kumar is the IO of this case. He had reached at the spot. He has recorded the statement of PW1, prepared rukka and got the FIR registered. He had seized the motorcycle of accused. After registration of FIR, he had arrested the appellant and conducted his personal search. During his cross examination by accused, he has stated that he had noted down the same registration number as was stated on the number plate of the motorcycle i.e. DL3SB6400. He has volunteered that number plate was defective and accused was changing his statement frequently. No challan was prepared while searching the said vehicle under Motor Vehicle Act.
14) PW10 Sh. H.P.S. Cheema is the Retd. ACP, Delhi. He had proved his written complaint under Section 195 Cr.PC for taking cognizance of the court. During his cross examination by the appellant he has deposed that PW1 and PW4 were in fact on patrolling duty as per Roster Mark A. He deposed that in case of emergency, picket duties are also CA No.204107/2016 Vinod Maheshwari Vs. State Page 10 of 14 given by SHO. He admitted that as per Roster Mark A HC Chanderpal was posted at Kotla red light on picket duty on the date of incident. He volunteered that picket duties are not assigned every day and as already stated, in case of emergency, picket duties are given by the SHO.
15) One of the main contention raised on behalf of the appellant is that as per Duty Roster of police staff dated 16.04.2005, which is Mark A, which is admitted by PW10 ACP H.P.S. Cheema, both PW1 and PW4 were not on picket duty and they were on patrolling duty. It has been urged that this shows that this case was falsely planted upon the appellant. The police officials demanded money from him and on his refusal, he was beaten up and falsely implicated in this case. No doubt, as per Mark A, PW1 is shown to be on night patrolling duty and HC Chanderpal has been shown on picket duty at Kotla Red light. But PW10 ACP H.P.S. Cheema has clarified that in case of emergency, picket duties are also assigned by the SHO though, the same is not mentioned in the Roster. This witness has further clarified that picket duties are not assigned every day and in case of emergency picket duties are given by the SHO. In view of these reasons, simply on the basis of Mark A, it cannot be taken as proved that PW1 and PW4 were not on picket duty on that day at the time of incident.
16) The other contention raised on behalf of the appellant is that statement of PW1 and PW4 are not consistent on material CA No.204107/2016 Vinod Maheshwari Vs. State Page 11 of 14 aspects and both the public witnesses i.e. PW2 and PW3 have turned hostile. It has been stated that learned Trial court erred in holding that public witnesses might have forgotten the incident because of the lapse of the time and holding the statements of both PW2 and PW3 as consistent.
17) There are various contradictions in the statement of PW1 and PW4 which render their testimonies under shadow of doubt. The prosecution could not get any strength from the statement of public witnesses i.e. PW2 and PW3. Rather, PW2 has deposed that on the date of incident he had seen the police officials beating up the motorcycle rider. During his cross examination by the accused, he has further deposed that he was forced by the police officials to make statement Ex.PW2/A i.e. under section 161 Cr.PC recorded by the police. The law is settled that the testimony of hostile witness cannot be out rightly rejected but if there are some believable contents in it, same can be relied upon by the court. PW2 is an independent public witness. The question arises that why he will tell a lie and if he had seen the incident, as stated by the prosecution, why he has not deposed in the same manner in the court. There are also contradictions, for the reasons, as alleged by PW1 and PW4, for stopping the appellant who came there riding motorcycle bearing registration No.DL3SB6400. As per PW1, the appellant was not wearing helmet and even number plate of the motorcycle was not in the correct CA No.204107/2016 Vinod Maheshwari Vs. State Page 12 of 14 format. But as per PW4 the motorcycle on which the appellant was riding was having no number plate on it. He is silent if the appellant was not wearing helmet at that time. IO PW7 during his cross examination has deposed that he had noted down the same registration number as was written on the number plate of the motorcycle. He has deposed that number plate was defective. How the number plate was defective, has nowhere been explained by either of the three important prosecution witnesses i.e. police officials PW1, PW4 and PW7. Moreover, no challan of the appellant was done by the police officials under Motor Vehicle Act. If the appellant was not wearing helmet, number plate was defective and he was not having documents of the vehicle, he was required to be challaned, either by the local Police by way of Kalandra, which local police usually do, or by calling the traffic police at the spot. But neither of the two options were availed by the local police which further creates shadow of doubt on the prosecution case.
18) PW4 who is also one of the alleged victim has deposed that a scuffle had taken place between PW1 and the appellant as a result of which PW1 fell down. He has not deposed if the appellant had initiated the scuffle or had assaulted or pushed PW1. He has deposed that the appellant had misbehaved with him and pushed him as a result of which he fell down on the road. Statement of PW1 is silent if PW4 was also CA No.204107/2016 Vinod Maheshwari Vs. State Page 13 of 14 pushed as a result of which, he had fallen on the road. Moreover, as per PW1 the appellant had caught hold him from his collar and torn his uniform but the said torn uniform of PW1 was not seized by the IO PW7. The torn uniform could have been a very important evidence against the appellant.
19) In view of the aforesaid reasons, the impugned judgment dated 30.09.2014 and order on sentence dated 07.10.2014 convicting and sentencing the appellant is set aside. Appellant Vinod Maheshwari is acquitted from the offences punishable under sections 186/332/353 IPC. Accordingly, the appeal is allowed.
20) A copy of this judgment along with Trial Court Record be sent back to the learned Trial Court.
21) Appeal file be consigned to Record Room.
Announced in the open court
on 27th September 2022 (SANJAY GARG I)
Principal District & Sessions Judge,
South East, Saket Courts
New Delhi
CA No.204107/2016
Vinod Maheshwari Vs. State Page 14 of 14