Delhi District Court
State vs . Karambir Panwar on 30 November, 2018
IN THE COURT OF SH ANUJ KUMAR SINGH: MM03(SD) /
SAKET COURT: DELHI
State Vs. Karambir Panwar
FIR No. : 124/2012
U/s. : 30 AM& ASR ACT and 188 IPC
PS. : Hauz Khas
JUDGMENT
a) Sl. No. of the case : 2038366/16 dt. 17.08.2016
b) Date of institution of the case : 27.9.2012
c) Date of commission of offence : Prior to 09.05.2012.
d) Name of the complainant : Shri Arvind Semwal, Foreman
Archaeological Survey of India,
SubCircle, Hauz KhasII,
Sirifort, New Delhi
e) Name & address of the : Karambir Panwar
accused S/o Sh. Virender Panwar
R/o H. No. 253D, Shahpur Jat,
New Delhi.
f) Offence charged with : U/s 30AM&ASR Act,1958 & 188 IPC
g) Plea of the accused : Pleaded not guilty.
h) Final order : Acquitted.
i) Date of Judgment : 30.11.2018
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, the case of prosecution in nutshell is that on or before 09.05.2012, at House No. 253D, Shahpur Jat Village, carried out illegal construction at his said house which is situated within the prohibited area of a Centrally Protected Monument i.e Tofewala Ghumbad. It is further the case of prosecution that by carrying out said unauthorized construction, accused also violated the Central Government Notification no. 1764 dt. 16.6.1992 published in Gazette of India. On these allegations, accused has been sent to face trial for offence under section u/s 30 of Ancient Monuments and Archaeological Sites and Remains Act 1958( hereinafter called as AM & ASR Act, 1958) and under section 188 IPC.
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed by investigating agency and the accused was consequently summoned. After supply of copies , a notice under section U/sec. 30 AM & ASR Act, 1958 and 188 IPC was served to accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, four witnesses have been examined on behalf of the prosecution.
4. PW1 is Sh. Arvind Semwal, Foreman from Archaeological Survey of India.
He deposed that on 05.04.2012, he was posted at Hauz Khas, Sub CircleII, Siri Fort, that on that day Sh. Attar Singh, attendant, ASI informed him about a un authorized construction at 253A, Shahpur Jat by Karamvir Panwar, that he lodged a complaint Ex PW1/A, that superintendent Archaeologist, ASI issued a show case notice to Dy. Commissioner of Police ( South), DC (MCD) and to the owner and that unauthorized construction was going on in the prohibited area of centrally protected monument, Tofhe Wala Gumbed.
5. PW2 Ct. Deepak Kumar deposed that on 10.05.2012 he was posted at PS Hauz Khas , that on that day he along with SI Harpal Singh went to ASI office at Siri Fort, that SI Harpal Singh did some investigation from conservation assistant and got some documents from him, that SI Harpal Singh recorded his statement as well. The witness further deposed that they went to the house of accused, that IO arrested accused vide arrest memo Ex PW2/A and conducted his personal search vide memo Ex PW2/B. The witness correctly identified the accused.
6. PW3 HC Ghyanshyam Meena is duty officer who proved the copy of FIR EX PW3/A and his endorsement Ex PW3/B on rukka Ex PW1/A.
7. PW4 Sh. Sunil Kumar is Mechanical Supervisor who deposed that complaint regarding illegal construction by accused was sent to UC Section , that on the basis of the complaint his show cause notice was issued on 08.05.2012 and copy sent to DG(ASI), DCP, MCD, Special Secretary to Raj Niwas and other Law Enforcement Agencies for further necessary action, that Directorate Office has issued renewal order on 8.1.2013 and on 19.07.2013 under rule 38(1) and also issued a demolition order under rule 38(2) on 28.11.2013 and same was conveyed to DC ( Revenue), MB Road, Saket for further necessary action. The witness proved the original notification Ex PW4/A.
8. PW5 SI Harpal is IO and deposed that on 5.04.2012 complaint was marked to him , that after receipt of the same, he reached at spot and n noticed illegal construction by accused ( correctly identified), that accused was asked to stop the illegal construction and photograph Ex P1 ( colly) of the illegal construction were taken , that MCD was given information of the said construction vide Ex PW5/A. The witness further deposed that accused did not stop the construction despite the directions, that thereafter case was registered on 9.5.2012, that thereafter he reached at the spot and prepared the site plan Ex PW5/B, that thereafter ASI department was asked to make demarcation of the protected monument and permission u/s 195 CrPC was obtained. The witness further deposed that report of demarcation was received vide Ex PW5/C and permission was granted vide Ex PW5/D, that electricity bill Ex PW5/E was also collected, thereafter statement of witnesses were recorded u/s 161 CrPC, thereafter accused was arrested vide memo Ex PW2/A and copy of notification is Mark X and thereafter charge sheet was filed before this hon'ble court.
9. PE was closed by order of this court on 29.08.2017 and statement of accused u/s 313 CrPC was recorded, wherein all the incriminating evidence appearing against accused were put to him, which accused denied as incorrect. He further stated that no construction was carried out at the alleged site.
10. Accused chose not to lead defence evidence in his favour.
11. Argument heard. Record perused.
12. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13. The case of prosecution in nutshell is that on or before 09.05.2012, at H. No. 253B, Shahpur Jat Village, carried out illegal construction at his said house which is situated within the prohibited area of a Centrally Protected Monument i.e Tofewala Gumbad. It is further the case of prosecution that by carrying out said unauthorized construction, accused also violated the Central Government Notification no. 1764 dt. 16.6.1992 published in Gazette of India. On these allegations, accused has been sent to face trial for offence under section u/s 30 of Ancient Monuments and Archaeological Sites and Remains Act 1958( hereinafter called as AM & ASR Act, 1958) and under section 188 IPC
14. Further, it is evident from testimony of PW1 Sh. Arvind Semwal and his complaint Ex. PW 1/ A that he himself did not see any unauthorized construction being carried out by accused at the said property. As per the witness, the unauthorized construction was reported to him by monument attendant Attar Singh. However the said employee was neither cited nor examined by prosecution to prove its case.The said lacuna has remain unexplained on the part of prosecution.
15. As per the testimony of PW1 Sh. Arvind Semwal (ForemanASI), he deposed that unauthorized construction was being carried out by the accused in the vicinity of Tofhewala Gumbad. In the list of protected monuments notified by Government of India, Tofhewala Gumbad falls in Humanyu Pur village. Star witness of the present case Arvind Semwal was not aware whether Humanyu Pur village is located within the periphery of Shat Put Jat village. He further deposed that most probably monument namely BaghI Alam Gumbad falls within in village Shahpur Jat.
16. PW4 Sushil Kumar, mechanical supervisor (ASI) deposed that accused Karamveer Panwar was carrying unauthorized construction in respect of property no. 253 A ,Shahpur Jat village in prohibited area of centrally protected monument Tofhewala Gumbad. During his further examination dated 19.04.2017, he deposed that in the complaint which was lodged by Shri Arvind Semwal mentions the name of centrally protected monument Tofhewala Gumbad instead of Thanewala Gumbad , due to an inadvertent mistake. During his cross examination , he could not tell the distance between Tofhewala Gumbad and Shahpur Jat village. He further admitted that no complaint regarding Thanewala Gumbad was lodged in the present case.
17. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, Apex court observed (Para12):
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
18. Hence, in view of the above said discussions, I am of the considered view that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Thus, the accused namely Karamveer Panwar is hereby acquitted of offence U/sec. 30 AM & ASR Act,1958 and 188 IPC . Ordered accordingly.
Digitally signed ANUJ by ANUJ
KUMAR SINGH
KUMAR Date:
SINGH 2018.11.30
21:36:29 +0530
Announced in the open court (Anuj Kumar Singh)
on 30.11.2018 MM03(SD)/Saket/New Delhi