Delhi District Court
State vs Piyush Jain Etc on 11 September, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 290/2003, PS Bhajanpura
2.Unique Case no. 462152/2015
3.Title State Vs. Piyush Jain etc.
3(A). Name of complainant Rakesh Kumar
Assistant Engineer, BSES, Yamuna Power
Limited.
3(B). Name of accused persons 1. Piyush Jain
S/o Sh. Adesh Jain
R/o H. No. 606/2, Krishna Nagar, Gali no.
11, Adarsh Mohalla, Maujpur, Delhi-53.
2. Neha Jain
W/o Piyush Jain
R/o H. No. 606/2, Krishna Nagar, Gali no.
11, Adarsh Mohalla, Maujpur, Delhi-53.
4.Date of institution of challan 27.11.2003
5.Date of Reserving judgment 24.08.2023
6.Date of pronouncement 11.09.2023
7.Date of commission of offence 28.08.2003
8.Offence complained of U/s 186/353/427 IPC
9.Offence charged with U/s 186/353/427/34 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted U/s 186/353/427/34 IPC
12. Date of receiving of judicial 27.11.2003
file in this court
Argued by :-1. Sh. Amit, Ld. APP for the State.
2. Sh. Kapil Singhal, Counsel for accused persons.
JUDGMENT
1. The present prosecution case was put into action with the complaint of Rakesh Kumar alleging that on 28.08.2003 at around 10.40 p.m., a mob in State Vs. Piyush Jain and Ors. Page 1 of 21 FIR No. : 290/2003 furtherance of their common intention assaulted Sunil Kumar of BSES and also prevented him to discharge his public functions. Further, it was alleged that the said mob caused damage/loss of property of BSES, Yamuna Power Limited. Hence, the present FIR was registered on 29.08.2003 under Section 186/353/427 IPC. On 29.11.2003, charge-sheet was filed after completion of the investigation and accused persons Neha Jain and Piyush Jain were summoned for offence under Section 186/353/427/34 IPC. Thereafter, on 24.07.2007, both accused persons were charged with offences punishable u/s 186/353/427/34 IPC to which they pleaded not guilty and claimed trial.
2. Prosecution had named total 14 witnesses in the charge sheet. However, PW Virender Kumar Sharma expired during the pending of proceedings. Hence, he was dropped from the list of witnesses. Further, PW Ram Kishan was dropped vide order dt. 31.05.2022 in view of the submissions of the State as he was paralysed and he was unable to speak or communicate. Further, MHC(M) was also not examined by the State since the case property was already produced in the testimony of PW Banwari Singh. Lastly, IO/PW Amar was also dropped vide order dt. 09.05.2023 from the list of witnesses as he had expired. Only 10 witnesses were examined by the State.
3. PW-1 is Sh. Rakesh Kumar. He deposed that on 29.08.2003, he was posted with BSES, Yamuna Vihar Zone as Assistant Engineer. On the said date, he made a written complaint Ex. PW1/A regarding damages of office and property of BSES situated at Yamuna Vihar against Neha Jain, Piyush Jain and 15 unknown persons. He further deposed that he had also submitted list of eye witnesses to the SHO, PS Bhajanpura which is Ex.PW1/B. In his cross examination, he admitted that no incident had taken place on 28.08.2003 in his presence. He further admitted that he did not file the list of witnesses on 29.08.2003. He further admitted that he had given the list of witnesses on State Vs. Piyush Jain and Ors. Page 2 of 21 FIR No. : 290/2003 03.11.2003. He also conceded that he cannot tell the time of giving of complaint on 29.08.2003 and the list of witnesses on 03.11.2003. Sunil Kumar Sharma, Ran Singh, Virender Kumar Sharma, Shri Kishan, Md. Khalil and Pawan Kumar had also accompanied him to the PS on 29.08.2003. He stated that he had written complaint Ex. PW1/A in his office. He denied that no such incident had occurred. He further admitted that he had not given the residential address of Neha Jain and Piyush Jain or their physical description in his complaint.
4. PW 2 is Ct. Banwari Singh. He deposed that on 29.08.2003, he was posted as constable in PS Bhajanpura and on that day, he had joined investigation with IO/ASI Amar Singh. He deposed that they reached at the spot i.e. in front of C-7/247, Yamuna Vihar, Delhi on the said day, where IO prepared site plan which is Mark A. He further stated that photographs of spot were also taken with the help of photographer. Case property was seized on the pointing of complainant. He had identified his signatures on the seizure memos which are Ex. PW2/A, Ex. PW2/B and Ex. PW2/C. He stated that IO tried to trace out the accused persons but to no avail. He further stated that he can identify the case property (identification of case property was not disputed by the counsel for accused). Broken telephone (Camptel) is Ex. P1, bricks and stones in a cement bag are Ex. P2 (colly) and three broken chairs and cover of cooler are Ex. PW3 (colly). In his cross examination, he stated that he departed from the PS at about 05.00 p.m., and DD entry in this regard was made by the Duty Officer. He denied that no departure entry was made about him regarding his departure with ASI Amar Singh. Thereafter, Ld. Counsel for the accused drew his attention towards DD no. 76 B dt. 28.08.2003 wherein he admitted that his name is not mentioned in the DD entry. He further admitted that no public person was throwing stones in his presence nor any assailant was met or apprehended at the spot. He stated that 5-7 employees of BSES were State Vs. Piyush Jain and Ors. Page 3 of 21 FIR No. : 290/2003 present at the spot when they reached there. He further stated that complaint was given by person namely, Rajesh kumar or Rakesh Kumar to the IO. He further stated that he does not remember if IO had recorded statement of an employee of BSES at the spot. He however, stated that his statement was recorded at the spot and stated that in his statement, he had told the IO that spot was in front of C-7/247 Yamuna Vihar, Delhi. He was confronted with his previous statement by counsel for accused i.e. Ex. PW2/DA where it is not so recorded. He further stated that three seizure memos were prepared. He conceded that in his statement Ex. PW2/DA, he has not stated that case property was seized at the pointing out of the complainant. He further stated that the broken wooden chairs and one parda of cooler was seized in one memo and bricks/stones were seized in another memo. He further stated that one broken telephone was seized in the third memo. He however conceded that chairs and parda are of common use and there was no identification mark. He also admitted that if brick bat is mixed with other brick, he cannot identify the case property. He further stated that he does not know if the broken chairs were taken from inside the office of BSES or from the balcony of Office. He further stated that he does not remember which part of the chair was broken or damaged. He also stated that the pullanda containing telephone was not sealed. He also stated that seal of VSP is of Inspector Virender Singh Punia. He conceded that Virender Singh Punia was not the member of investigation. He further stated that he does not remember the photographer who took the photographs. He denied the suggestion that he did not join the investigation. He however, stated that he does not remember who had taken rukka to PS.
5. PW 3 is HC Yashbir Singh. He deposed that on 29.08.2003, he was Duty Officer and at about 05.05 p.m., ASI Amar Singh handed over to him one rukka and tehrir for registration of FIR. He deposed that on basis of rukka, he had registered the FIR no. 290/03. He had also made endorsement on rukka State Vs. Piyush Jain and Ors. Page 4 of 21 FIR No. : 290/2003 which is Ex. PW3/A and carbon copy of FIR is Ex. PW3/B. He deposed that after registration of the FIR, he handed over the copy of FIR and original rukka to Ct. Banwari to hand over the same to ASI Amar Singh. In his cross examination, he deposed that Ct. Banwari left the PS at about 05.40 p.m.
6. PW 4 is Sunil Kumar. He deposed that on 28.08.2003, he was posted at Yamuna Vihar, C-7 Sub Station as Shift Incharge and his duty hours were from 04.00 p.m. to 12.00 p.m. He stated that Virender Kumar Sharma, Lineman, Ran Singh, Lineman, Pawan Kumar, Lineman, Krishan Kumar, Khalil Ahmed were also on duty at the said place at the said time. At about 10.30 p.m., there was power cut/electricity breakdown in the area of Adarsh Mohalla, Yamuna Vihar, Vijay Park, Maunpur etc. due to some major electricity fault. At about 10.45 p.m. around 15-20 public persons had entered into abovesaid sub station premises where he alongwith the abovesaid staff were present. In the abovesaid 15-20 persons crowd, accused Piyush Jain and Neha Jain were also present. Both the accused persons were apprehended by the police while they were trying to run away from the spot after damaging the said office property. The abovesaid persons started using abusive language against him and his abovesaid staff. He tried to make them understand, however, all the efforts were in vain. Thereafter, they started to damage the office property. They had broken the cemented jali wall installed near the transformer installed at the said sub station. He further deposed that they also damaged the other office properties. i.e. telephone, register, chairs and they also pelted stones inside the said office where he alongwith his said staff were present. As the situation deteriorated, someone had called the police, and police reached at the spot. The moment police reached there, the said public persons got scattered, however, accused Piyush Jain and Neha were apprehended by the police while they tried to flee away. (Both the accused persons namely, Piyush Jain and Neha Jain were correctly identified by witness). He also correctly identified the State Vs. Piyush Jain and Ors. Page 5 of 21 FIR No. : 290/2003 photographs of the said spot where the said incident had occurred and also identified the photographs of the damaged property. The said photographs are 7 in numbers. He stated that he can identify the case property. In his cross examination, he stated that at about 11.00 p.m. to 11.15 p.m., police reached at the spot. He further stated that at the same time, police apprehended accused Piyush Jain and Neha. He stated that he cannot tell which property was damaged by which person. He also stated that accused Neha Jain was leading the crowd and had tried to aggravate the crowd. He however, conceded the Piyush did not enter into the office premises. He stated that Neha Jain entered the office premises. He further stated that later on accused Piyush Jain came there to take his wife. He then said that Piyush Jain reached the spot only after the arrival of police. He further stated that he does not remember whether the damaged articles or property were taken into police custody. He stated that only photographs of the spot were taken. He further stated that he made a written complaint regarding the incident to his senior Rakesh kumar. He however, admitted that the said complaint is not placed on the judicial record. He stated that accused persons were not known to him prior to the incident. He conceded that he had not given description of the accused persons to the police. He however, stated that both accused persons were apprehended by the police at the spot. He denied that accused Neha was not present at the spot. He denied the suggestion that accused Piyush and Neha were not involved in the present case. He stated that he had informed the police that accused Neha Jain was leading the said mob. Thereafter he was re-examined by Ld. APP for the State. He was asked to clarify whether accused Piyush Jain and Neha Jain were present with the crowd as stated in the examination in chief or accused Piyush Jain reached at the spot after the arrival of police as stated in the cross examination. He stated that accused Piyush Jain reached at the spot after the arrival of police. Thereafter, he was cross examined by the Ld. APP for the State where in he denied the suggestion that Piyush Jain had also State Vs. Piyush Jain and Ors. Page 6 of 21 FIR No. : 290/2003 accompanied the crowd with accused Neha Jain. He also denied the suggestion that he had been won over by the accused Piyush Jain.
7. PW 5 is Rajender Kumar. He has deposed that on 29.08.2003 he was present at his shop and at about 10.00 O'clock, one person from the BSES shop came to his shop and asked him to take some photographs at the said office of BSES/DESU. He reached there alongwith his Nikon Camera (negative) and he clicked the photographs there on the direction of officials present there. He had handed over the said photographs alongwith negatives after developing the same to the officials at the said BSES Office. While he visited the said spot for taking the said photographs, article lying in the office like telephone, window glasses etc. were broken. Some stones/brick pieces were also lying on the floor. Accordingly, he took the photographs and he correctly identified all the photographs which he had taken through his camera already Ex. P1 colly. Further examination was deferred for want of negatives. But on the next date, he deposed that he did not have the negatives of the photographs Ex. P1 colly. He further deposed that he had taken the photographs on 28.08.2003 and he inadvertently told earlier that same were taken on 29.08.2003 due to long lapse time. He further deposed that correct date is 28.08.2003. He was not cross examined by the accused persons despite opportunity being given to them.
8. PW 6 is Ran Singh. On 28.08.2003, he was posted at Yamuna Vihar, complaint centre of BSES at C-6, Yamuna Vihar as Jr. Lineman. His duty hours were from 04.00 p.m. to 12.00 midnight. On the said day, Khalil Ahmad, Assistant Lineman, Lineman Virender, Lineman Pawan and Lineman Kishan were also present on the said day as they were also having their duties. Assistant Sushil was also there. He further deposed that on the same day, at about 09.00 p.m., he went to attend a complaint at Yamuna Vihar and after State Vs. Piyush Jain and Ors. Page 7 of 21 FIR No. : 290/2003 attending the same, he came back to the BSES complainant centre at the said place at about 10.10 p.m. He stated that at about 10.15 p.m, 10-15 persons entered into the complaint centre and started abusing the staff present there and started pelting stones on the office as well as the electric panel installed there. He stated that no person was apprehended in the said mob/crowd. He did not know the name of any other person who was the member of the said crowd or persuaded or headed the said crowd. The said crowd included male as well as female members. The said person also threw and torn the official telephones present in the office and lying there. Someone had called the police, however, he did not know who called the police and from where the police was called. He stated that when police came there, he had narrated the incident to his senior officials i.e. to his AE. He further stated that when the police reached there, the said crowd was present and police disbursed them. The photographs of the said spot were also taken. He further deposed that the said telephone and the chairs were also taken by the police into custody. He further deposed that he did not identify any person who persuaded the said crowd or made the said stone pelting or torn and threw the articles lying the said office. He also did not know anything about the fact that any person was apprehended by the police or not. He was cross examined by the Ld. APP for the State wherein he deposed that he worked at the said office from 1998 to 2005. He denied that the said crowd was headed by accused persons namely, Neha Jain and Piyush Jain who also abused the staff present there and pelted stones and torn and thrown the articles lying there. He was confronted with his previous statement Mark P6. He correctly identified the accused persons and stated that both accused persons were present in the said crowd. (production of case property was dispensed with as the same had already been exhibited). In his cross examination, he deposed that he had not seen the crowd destroying the articles or pelting stones. He stated that they had locked themselves in their room. He stated that when the police came, they opened the door and found the accused State Vs. Piyush Jain and Ors. Page 8 of 21 FIR No. : 290/2003 persons who were leading the crowd. He stated that he had identified the accused persons before the court. He further stated that photographs of the damaged articles were taken at the spot. He denied the suggestion that he was deposing falsely.
9. PW 7 is Pawan Kumar. He has deposed that on 28.08.2003, he was posted at Yamuna Vihar Complaint centre of BSEs at C-6, Yamuna Vihar as Assistant Lineman. His duty hours were from 04.00 p.m. to 12.00 midnight. He further deposed that on that day, Ran Singh, Khalil Ahmad, Assistant Lineman, Lineman Virender, Lineman Pawan and Lineman Kishan and Shift Officer Sunil kumar were also present on the said day as they were also having their duties. On the said day, at about 09.00 p.m., he went to attend a complaint at Yamuna Vihar and after attending the same, he came back to BSES complaint centre at the abovesaid place at about 10.30 p.m. He stated that the present incident had already occurred before he reached there. When he reached at the said complaint centre, he saw that the chairs, telephone, electric panels, cemented jali wali etc. were damaged by the mob. He stated that police had visited the spot and departed from there prior to his reaching at the said complaint centre. He stated that no incident had occurred in his presence. He was cross examined by the Ld. APP for the State wherein he stated that he joined the BSES complaint centre at Yamuna Vihar in the year 1999 and worked there till 2004. He denied the suggestion that on 28.08.2003, at about 10.15 p.m. as no power supply was there, 14-15 pubic persons entered into the DESU Office, Yamuna Vihar who were accompanied by accused Neha Jain and Piyush Jain and they started abusing the staff present there and they also pelted stones and property lying there i.e. telephone and chairs. He further denied that someone had called the police and police had reached there and seized the said damaged property i.e. telephone, chairs, stones or that photographs of the said spot were also taken. He further denied that State Vs. Piyush Jain and Ors. Page 9 of 21 FIR No. : 290/2003 deliberately he is not deposing the true facts before the court or identifying the accused persons as he had been won over by the accused persons or they had threatened him to cause injury to his person or property or deliberately. He was not cross examined despite opportunity being given.
10. PW 8 is Khalil Ahmed. He deposed that on similar lines as PW 7 and stated that the present incident had already occurred when he reached the spot. He stated that when he reached complaint centre, he saw chairs, telephone, electric penals, cemented jali wall were damaged by the mob. He further stated that police reached the spot and departed from the spot prior to his reaching the complaint centre. He was cross examined by the Ld. APP for the State as he was resiling from his previous statement. He denied the suggestion that on 28.08.2003 at about 10.15 p.m, as there was no power supply, 14-15 public persons entered into DESU Office, Yamuna Vihar accompanied by accused Neha and Piyush. He denied that the said persons abused the staff present and that they pelted stones and damaged the property lying there. He also denied that some one called the police and the police seized the property. He denied the suggestion that he had been won over by the accused persons. He was confronted with his previous statement Mark P8. He was not cross examined by the Ld. Counsel for the accused despite opportunity being given.
11.PW 9 is Shri Kishan Head Lineman. He deposed that on 28.08.2003, he was posted at DESU Office, Yamuna Vihar as Helper/Lineman. His duty hours were from 04.00 p.m. to 12.00 midnight. He further deposed that on that day, there was power/electriciy disturbance in the area of Yamuna Vihar and he alongwith Khalil, Ran Singh, Pawan Kumar visited the area on a complaint of the same. When at around 10.15 p.m., he alongwith the other staff came back to DESU Office, Yamuna Vihar, he saw that office articles telephone, register, chairs were scattered. 15-20 public persons were present in the premises of the State Vs. Piyush Jain and Ors. Page 10 of 21 FIR No. : 290/2003 said office and after seeing the public persons, he took back steps and came out from the rear door. No police personnel came in his presence. He stated that he had not seen the faces of any of the person who was present there in DESU Office, Yamuna Vihar. He was cross examined by the Ld. APP for the State as he was resiling for his previous statement given to police. He denied that when at around 10.15 p.m., he came back to the DESU Office, Yamuna Vihar, accused Neha Jain alongwith Piyush Jain were present in the DESU office, Yamuna Vihar and leading the mob of 14-15 persons and had abused him alongwith the accompanied staff and pelted stones or that they had entered into the DESU Office where they damaged the telephone, registers, cement jali wall of the transformer and other articles. He further denied that accused alongwith the other members of the mob pelted stones towards the lineman and the staff. He denied that thereafter police reached at the spot and mob got scattered. He further denied that he alongwith the other staff narrated the incident to the senior officials and police personnel came there and took the stones/brick pieces, damages telephone/chairs were taken into custody. He failed to identify the accused persons. He further denied that deliberately he is not identifying the accused persons as he had been won over by them or they have threatened him to cause injury to his person or property. He was not cross examined by accused persons despite opportunity being given to them.
12. PW 10 is Retired SI Kalyan Singh. He deposed that on 28.08.2003, he was posted at PS Bhajanpura as ASI. On the said date, he alongwith Ct. Ram Kishan were on patrolling duty in the area of Bhajanpura. Thereafter, at around 10.40 p.m. he received information through wireless that some public persons were pelting stones at DESU Office, Yamuna Vihar. Thereafter, he alongwith Ram Kishan headed to DESU Office, Yamuna Vihar and while they reached there, he saw that some persons were shouting/making noise . He state that "shor sharaba kar rahe the". In the meantime, SHO Bhajanpura alongwith State Vs. Piyush Jain and Ors. Page 11 of 21 FIR No. : 290/2003 other police staff reached there and after arrival of police staff, the public persons which were gathered there, got split. In his cross examination, he deposed that accused persons were not arrested in his presence. He stated that he did not know whether the accused persons were present amongst the people gathered at DESU Office Yamuna Vihar, Delhi.
13. Thereafter, the state closed the prosecution evidence on 09.05.2023. Statement of accused persons Piyush Jain and Neha Jain under section 281 Cr.P.C. r/w 313 Cr.P.C. was recorded on 06.06.2023 wherein they denied all the allegations against them. Accused Piyush Jain stated that he wishes to lead Defence Evidence however, accused Neha Jain did not lead any defence evidence.
14. Thereafter, the accused Piyush Jain examined himself as DW 1. He deposed that on 28.08.2003, electricity was not coming in his house and therefore, he filed a complaint through telephone at BSES Office at around 09.00 to 10.00 p.m. The person on the phone asked his address, name and told him that the light would come within 20-30 minutes but the electricity did not come. Thereafter, his wife Neha called on the said telephone and inquired about the same to which same reply was given and her name and address was also noted down but the light did not come. After that they went back to sleep. He further deposed that on very next date, he received a call from the police station and IO of the present matter arrived at their house and informed them that the present case has been registered against them and they have to go to police station. They were directly taken to the court by the concerned officer. Then they took bail. He stated that they never went to the BSES Office, nor did they destroy any property. He further deposed that they have been falsely implicated in the present matter. He was cross examined by Ld. APP for the State wherein he deposed that on 28.08.2003, he never went to the BSES, Office. He stated that he was at home all the time. He stated that no one beside his three children State Vs. Piyush Jain and Ors. Page 12 of 21 FIR No. : 290/2003 who were about 8-10 years at the said time can testify about his whereabouts for the alleged incident because it was night time. He denied that he went to the BSES office at that night alongwith his wife. He further denied that he alongwith 10 to 15 other people damaged the office property of BSES and pelted stones. He further denied that he alongwith his wife were part of any crowed gathered at BSES office at night and damaged the public property. He further denied that he alongwith his wife were apprehended by the police officials while they were trying to flee from the spot. He further deposed that he did not know why his name has been dragged into the present matter. He further denied that he is deposing falsely.
15.Thereafter, the DE was closed and matter was then fixed for final arguments. Final arguments were addressed by Sh. Amit Ld APP for the State and by Ld Defence Counsel Sh. Kapil Singhal. The ld. APP for State argued that the testimony of the witnesses are consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and allegations against the accused persons cannot be sustained.
16.I have heard the submissions of both the parties and perused the material on record. However, before proceeding to the merits of the case, I wish to first refer to the relevant provisions of law.
Section 186 of IPC provides as under :
"Obstructing public servant in discharge of public functions :
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
Section 353 of IPC provides as under :
"Assault or criminal force to deter public servant from discharge of State Vs. Piyush Jain and Ors. Page 13 of 21 FIR No. : 290/2003 his duty : Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Section 427 IPC reads as follows:
"Mischief causing damage to the amount of fifty rupees. Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
17. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offences. The present case has been instituted on the basis of complaint by PW1 Rakesh. It is case of prosecution that on 28.08.2003 at about 10.30 while Sunil Kumar, Shift Incharge was on duty at Yamuna Vihar, C-7 Sub Station with Virender Kumar Sharma, Lineman, Ran Singh, Lineman, Pawan Kumar, Lineman, Krishan Kumar, Khalil Ahmed, there was power cut/electricity breakdown in the area of Adarsh Mohalla, Yamuna Vihar, Vijay Park, Maujpur and around 15-20 public persons had entered into abovesaid sub station premises including accused Piyush and Neha Jain. All the said persons started abusing the staff present there and even pelted stones and damaged the property of the substation and obstructed Sunil Kumar in his duty. But before appreciating the evidence, I wish to first address legal objection raised by counsel for accused. It has been argued by the counsel for accused since no complaint/sanction under Section 195 Cr. PC has been filed, therefore, the entire proceedings stands vitiated against the accused persons. Per contra, it has been submitted by the prosecution that complaint Ex. PW1/A made by PW1 is the complaint under section 195 Cr.PC for the State Vs. Piyush Jain and Ors. Page 14 of 21 FIR No. : 290/2003 purpose of offence under section 186 IPC. In this regard, Hon'ble Apex Court in a three-judge bench case, titled as Durga Charan Naik Vs. State of Orissa 1966 AIR 1775 observed as under:
"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 section 186 and 353 IPC relate to two distinct offences and while the offences under the latter 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 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 the two offences is also different. Section 186 IPC occurs in chapter X of IPC dealing with contempt of lawful authority of public servants, while section 353 IPC occurs in chapter XVI regarding the offences affecting the human body. It is well established that section 195 Cr.P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts, but which is not within the ambit of that section."
18.Hence, it is clear from the above that even if contention of the counsel for accused persons is conceded, Section 195 Cr. PC however does not bar the trial of accused persons for distinct offences disclosed on same facts on which offence under Section 186 IPC is made out. Therefore, the said contention is of no assistance to the accused persons.
19.It is the cardinal principle of criminal law that the accused person is presumed to be innocent until proved guilty. It is further rule of Evidence in Criminal law that the prosecution has to prove its case beyond reasonable doubt. An accused State Vs. Piyush Jain and Ors. Page 15 of 21 FIR No. : 290/2003 is presumed to be innocent, until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. In Bodh Raj V State of Jammu & Kashmir AIR 2002 SC 3164, Apex Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below are fully satisfied:
a) The circumstances from which guilt is established must be fully proved;
b) That all the facts must be consistent with the hypothesis of the guilt of the accussed;
c) That the circumstances must be of a conclusive nature and tendency
d) That the circumstances should, to a moral certanity , actually exclude every hypothesis expect the one proposed to be proved.
20. Thus, there must be a chain of evidence where no reasonable ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused. It is trite to state that in appreciating a case based on circumstantial evidence, it is well settled that one circumstance by itself may not unerringly point to the guilt of the accused and it is the cumulative result of all the circumstances which are to be seen. It is trite to state that testimony of witness should viewed from broad angles. It should not be weight in golden scales but with cogent standards. However, there are several material inconsistencies in the prosecution story. PW4 Sunil is the star witness of prosecution. Though he has supported the prosecution version that on 28.08.2003 at about 10.45 p.m. around 15-20 public persons had entered into sub station premises including accused Piyush Jain and Neha Jain and stated that both the accused persons were apprehended by the police while they were tried to run away from the spot after damaging the said office property. But in the cross examination, he resiled from the said version. In cross examination, he stated that Piyush Jain reached the spot after the arrival of police. Hence, he was re-examined by the Ld. APP for the state to clarify whether accused Piyush State Vs. Piyush Jain and Ors. Page 16 of 21 FIR No. : 290/2003 Jain and Neha Jain were present with the crowd as stated in the examination in chief or accused Piyush Jain reached at the spot after the arrival of police as stated in the cross examination. He categorically stated that accused Piyush Jain reached at the spot after the arrival of police. In view of the volteface of the eye witness who was himself the victim of the incident, this court finds his testimony unreliable. Moreover, he was unable to tell which property was damaged by which person. It is also pertinent to note that PW Sunil stated that accused Neha Jain was leading the crowd and tried to aggravate the crowd but the said statement is a bald assertion. Nothing has been deposed as to what words were used to rouse the emotions of the mob or to lead the mob to damage the property. Additionally, PW Sunil's version is not supported by the documents on record as well. Though PW Sunil deposed that accused person were apprehended on the day of incident but the FIR was registered on the next day and accused persons were arrested on 01.09.2023 as per the arrest memo. This in conjunction with the fact that the other eye witnesses too did not corroborate the version of PW Sunil renders the the prosecution version unreliable. PW6 despite being put leading questions by Ld APP for state categorically stated that no person was apprehended in the said mob/crowd. He further deposed that he did not identify any person who persuaded the said crowd or torn and threw the articles lying the said office. He denied that the said crowd was headed by accused persons namely, Neha Jain and Piyush Jain. PW 7 Pawan kumar and PW8 Sunil stated that the present incident had already occurred before they reached there and thus contradicted the testimony of PW 4 Sunil. They denied the suggestion that on 28.08.2003 accused Neha Jain and Piyush Jain had accompanied the mob. Further more, PW9 Shri Kishan also did not support the prosecution version. He failed to identify the accused persons. Further, it is conceded by the PW1 that he was not present at the time of incident. Though it is not in dispute that superior of public servant obstructed in his duty can make the complaint under 195 Cr.P.C but the said State Vs. Piyush Jain and Ors. Page 17 of 21 FIR No. : 290/2003 complaint must have some material supporting it. PW1 himself conceded that Sunil Kumar Sharma did not make any written complaint to him at any time. This in conjunction with the fact that PW4/ Sunil Kumar categorically stated that he made a written complaint regarding the incident to his senior Rakesh kumar raises doubt on the prosecution story since PW4 himself conceded that complaint made by him to Rakesh is not placed on the judicial record. It is a material lapse on the part of investigating officer. Thus, material prosecution witnesses turned hostile. Hence a question mark was put regarding the veracity of the prosecution's version in view of inherent inconsistencies in the testimonies of prosecution witnesses. This court is at pain regarding the unfortunate fate of the case as all the material prosecution witnesses have turned hostile.
21.Another lacunae in the prosecution version is that the photographs of the spot remained unproved. PW5 Rajender deposed that he did not have the negatives of the photographs Ex. P1. No material was led by prosecution to explain the circumstances for leading secondary evidence in this regard. Failure on the part of the prosecution to produce the negatives of the photographs of the spot calls for drawing of adverse presumption against the prosecution, especially since photographer has blown hot and cold regarding the date on which he took the photographs. While initially in his examination in chief, he deposed that he took the photographs on 29.08.2003, but when his examination was deferred for production of negatives, he stated that he took the photographs on 28.08.2003. This in conjunction with the fact that there is no consistency in the prosecution version regarding the date on which photographs were taken raises doubt regarding the genuineness of the photographs. While PW 2 deposed that photographs were taken on 29.08.2003, PW 4 and PW 6 stated that photographs were taken on the date of incident i.e. 28.08.2003. Further, PW 7 and PW 8 stated that no photographs were taken in their presence.
State Vs. Piyush Jain and Ors. Page 18 of 21 FIR No. : 290/2003
22. Additionally, PW3 Yashbir deposed that after registration of the FIR, he handed over the copy of FIR and original rukka to Ct. Banwari to hand over the same to ASI Amar Singh. But PW2 stated that he does not remember who had taken rukka to PS. It is also pertinent to note that PW10 Kalyan deposed that on 28.08.2003, he alongwith Ct. Ram Kishan were on patrolling duty in the area of Bhajanpura. Thereafter, at around 10.40 p.m. he received information through wireless that some public persons were pelting stones at DESU Office, Yamuna Vihar. Thereafter, he alongwith Ram Kishan headed to DESU Office, Yamuna Vihar. But DD register was not summoned by the prosecution to prove the fact that PW Kalyan and Ram Kishan were patrolling duty and reached the spot on the date of incident. But the DD register was not summoned and hence, the said DD entry remained unproved. It is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered: -
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained.
23.In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries State Vs. Piyush Jain and Ors. Page 19 of 21 FIR No. : 290/2003 creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
24.Thus, their presence at the spot is not proved. No reason has been brought to the notice of the court as to why the DD register/roznamcha was not summoned, raising an adverse presumption against the prosecution U/s 114
(g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure at all.
25.It is trite to state that the case of the Prosecution has to stand on its own legs and cannot rely upon the weakness of the defence of accused or the fact that the accused did not enter the witness box. There are several missing link and inconsistencies in the case of prosecution. Benefit of doubt hence must be given to the accused. Presumption of innocence of accused can be dispelled by the prosecution only on establishing his guilt beyond reasonable doubt. It is a fundamental principle of criminal jurisprudence. In the present case however, the circumstances from which prosecution wishes to infer the guilt of accused persons have remained unproved. Further, the testimony of victim/PW 4 Sunil is inherently inconsistent and lacks cogency. Therefore, his testimony does not inspire confidence. While in examination in chief, he deposes that accused Neha and Piyush were present in the mob and pelted stones and caused damaged to the property, in his cross examination, he stated that accused Piyush reached the spot only after the arrival of the police. Despite being re- examined by the Ld. APP for the State, he specifically denied that accused Piyush was present at the time of incident. Further, the testimony of PW 4 is also not corroborated by the other eye witnesses i.e. PW 6, PW 7, PW 8 and PW9. The concomitant of the aforesaid discussion is that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt. Hence, accused Neha and Piyush stand acquitted for the offences punishable under section 186/353/427/34 IPC. File be consigned to State Vs. Piyush Jain and Ors. Page 20 of 21 FIR No. : 290/2003 Digitally signed the Record Room as per rules. RUPINDER by RUPINDER SINGH SINGH DHIMAN Date: 2023.09.11 DHIMAN 14:40:01 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 11.09.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains 21 (twenty one) pages and each pages bears my signature. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.09.11 DHIMAN 14:40:10 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi 11.09.2023 State Vs. Piyush Jain and Ors. Page 21 of 21 FIR No. : 290/2003