Delhi District Court
State vs . Shyam Babu on 22 September, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK: METROPOLITAN
MAGISTRATE (CENTRAL)-04 TIS HAZARI COURTS, DELHI
State Vs. Shyam Babu
FIR No.: 193/14
U/s: 4(C) DPT & MAT Act 2010
PS: H.N.R.S.
Unique Case ID No. :02401R0032902015
Date of institution of case :07.01.2015
Date on which case reserved for :22.09.2015
judgment
Date of judgment :22.09.2015
JUDGMENT U/S 4(C) DPT & MAT Act 2010
a)Date of offence :08.12.2014
b)Offence complained of :U/s 4(C) DPT & MAT
Act, 2010
c)Name of accused, his parentage :Shyam Babu Mukhiya
& Address S/o Sh. Bhola Mukhiya,
R/o 12/55, Nehru Nagar,
Near Ashram, New Delhi.
d)Plea of accused : Pleaded not guilty
e)Final Order : Convicted
JUDGMENT
FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 1 of 9 BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. On 08.12.2014, SI Kushal Pal and HC Harpal Singh were on patrolling duty and reached at CR area near Masjid Gate where at about 02:40 PM one person was alluring the passengers for cheap TSR, Hotel and site seeing for which the passengers were not taking the same in good notion and also refusing for same but that person was continuously insisting for the same. SI Kushal Pal asked that person to not to allure the passengers but the accused not paid any heed at the directions of SI Kushal Pal.
SI Kushal Pal and HC Harpal apprehended the accused whose name was disclosed to be Shyam Babu Mukhiya S/o Sh. Bhola Mukhiya. IO/SI Kushal Pal asked 4-5 the passengers to join the investigation but they refused due to their own problems. On enquiry accused disclosed that he drive his TSR and allure the innocent passengers for cheap fare, cheap hotel and site seeing and by this he earned handsome amount. Accused further disclosed that today he was also insisting the passengers for cheap fare and hotel. SI Kushal Pal prepared the rukka at which FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 2 of 9 HC Harpal got the FIR registered. SI Kushal Pal conducted the investigation and during investigation site plan was prepared, accused was arrested and after completion of investigation the charge-sheet U/s 173 Cr.P.C. was filed in the Court.
2. Investigation was carried out and after completion of investigation, charge sheet was filed in the Court. The Court took cognizance of the offence on the charge-sheet filed by the police and proceeded against the accused. In compliance of Section 207 Cr.P.C., a copy of charge sheet along with documents was supplied to accused on his appearance. After hearing the parties, on 07.09.2015 the charges for the offence punishable u/s 4(C) DPT & MAT Act, 2010, were framed against the accused to which he pleaded not guilty and claimed trail.
3. In order to prove its case against the accused, prosecution produced and examined two witnesses. Vide a separate statement dated 19.09.2015, accused admitted the FIR No. 193/14 as Ex.P1 and endorsement on the same as Ex.P2.
4. In order to prove its case the prosecution got examined FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 3 of 9 two witnesses in total.
5. The prosecution got examined SI Kushal Pal as PW1 who deposed that on 08.12.2014, he was posted at PS HNRS as a SI and on that day he alongwith HC Harpal were on patrolling duly in the CR area and at about 2:40 pm they reached near Masjid Gate and they found that one person was inducing the passengers for hiring of cheap auto and PW1 told the said person not to disrupt the passengers but said person did not pay any heed. They apprehended the said person whose name later on disclosed as Shyam Babu Mukhiya. PW1 correctly identified the accused int he court. PW1 further deposed that he prepared the rukka and proved the same as Ex. PW1/A and further deposed that rukka was handed over to HC Harpal for registration of FIR from PS. Accordingly, HC Harpal got the FIR registered and returned back to the spot alongwith FIR and original rukka and same was handed over to PW1. PW1 further deposed that he prepared the site plan and proved the same as Ex. PW1/B. PW1 also deposed that he arrested the accused vide arrest memo and FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 4 of 9 identified his signature at point A. 5.1 During cross examination, PW1 has stated that the spot of offence is at about 100 mtrs. Distance from the police station and he remained at the spot till 05:00 PM.
6. The prosecution got examined HC Harpal as PW2 who deposed that on 08.12.2014, he was posted at PS HNRS as a HC and on that day he alongwith SI Kushal Pal Singh were on patrolling duly in the CR area and at about 2:40 pm they reached near Masjid Gate and they found that one person was inducing the passengers for hiring of cheap auto, cheap taxi and cheap site- seeing, they told the said person not to disturb the passengers but said person did not pay any heed. They apprehended the said person whose name later on disclosed as Shyam Babu Mukhiya. PW2 correctly identified the accused in the court. PW2 further deposed that IO prepared the rukka and same was handed over to him for registration of FIR from PS. Accordingly, PW2 got the FIR registered and returned back to the spot alongwith FIR and original rukka and same was handed over to IO. PW2 further deposed that FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 5 of 9 IO prepared the site plan already and arrested the accused vide arrest memo.
6.1 During cross examination, PW2 has stated that the spot of offence is at about 200 mtrs. distance from the police station and he remained at the spot till 05:30 PM.
7. PE got closed thereafter.
8. All the incriminating evidence/circumstances were put to the accused during his statement under section 313 Cr.P.C. He denied all the evidence against him as false and took the plea that he had been falsely implicated in this case, however, he preferred not to lead evidence in their defence.
9. Final arguments heard from both the sides. Record carefully perused.
10. In order to establish charge against the accused, prosecution relies upon the testimonies of PW1/SI Kushal Pal and PW2/HC Harpal. In their evidence before the Court, they deposed that accused was attempting to induce/solicit the passengers to provide them cheap rate hotel, Auto-rickshaw and cheap rate site- FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 6 of 9 seeing at cheap rates at Hazrat Nizamuddin Railway Station.
11. PW1 specifically deposed in terms of story of prosecution and successfully proved the FIR and endorsement on rukka. It is also observed by this Court that PW2/HC Harpal specifically deposed regarding spot of offence and refusal by the passengers to assent the offer by accused. PW1 and PW2 also correctly identified the accused in the Court.
12. It is also observed by this Court that vide a separate statement accused dated 19.09.2015 he has admitted the FIR No. 193/14 as Ex.P1 and rukka on the same as Ex.P2. The facts admitted by the accused need not to be proved by the prosecution. The admission of the FIR and rukka by the accused as Ex.P1 and Ex.P2 corroborates the testimony of PW1 regarding specification of spot of offence and presence of accused at the spot. It is further observed that PW1 has specifically stated in cross examination regarding the DD entry for patrolling in the area and has also placed on record as Mark A.
13. It is observed by this court that the minor contradiction FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 7 of 9 in the depositions of PW1 and PW2 regarding the distance of spot of offence from the police station do not hit the route of offence and does not entitle the accused for the acquittal from the present case. Without scaled site plan for the offence which have no bearing with the distance of spot of offence from the police station, the accused cannot have benefit in his favour leading to acquittal.
14. Ld. Counsel has raised the contention that no public person was made witness in the present matter. The law laid down by Hon'ble SUPREME COURT of India is very clear on this issue. In "Ashok Kumar Chaudhary v. State of Bihar" AIR 2008 SUPREME COURT 2436 Hon'ble Supreme Court held that Non- examination of public witness by itself does not give rise to adverse inference against prosecution when evidence of other witness is reliable. It further held that in view of the consistent evidence, non-examination of public witness would be immaterial.
15. In view of above observation this Court is of considered opinion that the prosecution has successfully proved its case beyond reasonable doubts and admissions on the part of FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 8 of 9 the accused vide his separate statement dated 19.09.2015 the accused has given the additional weightage to the evidence of the prosecution. Hence, accused Shyam Babu Mukhiya is convicted for the offence U/s 4(C) of Delhi Prevention of Touting and Malpractices Against Tourist Act, 2010.
Copy of this judgment be given dasti to convict free of cost.
Announced in the open Court (Ajay Kumar Malik) on this 22nd Day of September, 2015 MM (Central)-04/THC/Delhi 22.09.2015 FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 9 of 9 FIR No. 193/14 PS: HNRS 22.09.2015 Present : Ld. APP for the State.
Accused - Shyam Babu along with Ld. Counsel. Final arguments advanced.
Vide separate judgment of even date, accused - Shyam Babu is convicted to the offence punishable U/s 4(C)( DPT & MAT Act 2010.
Separate orders on the quantum of sentence is also passed today.
Original documents, if any, be returned to its rightful owner against countersigned photocopy of the same.
File be consigned to Record Room after due completion.
(AJAY KUMAR MALIK) MM (Central)-04/NEW DELHI 22.09.2015 FIR No. 193/14, PS- HNRS State vs. Shyam Babu Mukhiya Page No. 10 of 9