Delhi District Court
State vs Hardayal Singh Etc.,. on 4 January, 2011
(P/1)
FIR NO. 136/1996
u/s 186//353/506/212/34 IPC.
P.S. Dabri
IN THE COURT OF SH RAJESH KUMAR GOEL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02 ,
DWARKA COURTS
FIR NO. 136/1996
u/s 186//353/506/212/34
IPC.
P.S. Dabri
Date of institution : 01.6.1996
Date of final argument : 04.1.2011
Date of final order : 04.1.2011
JUDGMENT:
A SL NO. OF THE CASE : 02403RO601912004 B: DATE OF OFFENCE : 24.2.1996 C: NAME OF THE : S.I Jai Parkash COMPLAINANT D: NAME OF THE : 1. Joga s/o Hardayal r/o RZ B ACCUSED 1560 , Gali no. 6, Main Sagar PERSON Pur, New Delhi.
2. Hardayal s/o Attama Singh r/o RZ B 1560 West Sagar Pur (expired)
3. Smt Salendro Kaur w/o Harjit Singh r/o RZ C15, Gandhi Market , West Sagar Pur, New Delhi.
4. Krishan s/o Hardayal r/o H.N C 356, Gali NO. 5, East Sagar Pur, New Delhi.
5. Swaran Kaur w/o Hem Raj H.NO RZ B 7, Gali NO.4 West (P1of 10) state vs Hardayal Singh etc.,.
(P/2) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri Sagar Pur. New Delhi.
E: OFFENCE : U/S 186/353/506/212/34
COMPLAINED OFF IPC
F: PLEA OF ACCUSED : PLEADED NOT
GUILTY
G: FINAL ORDER : Acquitted
H: DATE OF SUCH : 4.1.2011
ORDER
BRIEF REASONS FOR DECISION:
1. All the accused person are facing trial on the allegation of the prosecution that on 24.2.1996 at about 6:40 pm at H.NO RZ B , 1560 , they all alongwith coaccused Hardayal (expired) in furtherance of their common intention , concealed the offender Brishan , who was involved in FIR no. 159/1994 u/s 379/411 IPC , with the intention of screening him from legal punishment . It is also alleged that in furtherance of their common intention they all obstructed police party lead by then S.I APS Tomar from discharging their public function to arrest Brishan and used criminal force and assaulted and torn the uniform of Ct. Jagbir Singh in order to obstruct S.I APS Tomar and other police staff while they were discharging their public duties. It is further alleged that they all in furtherance of their common intention extended (P2of 10) state vs Hardayal Singh etc.,.
(P/3) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri threat to kill the police party.
2. After investigation the chargesheet was filed against the accused person. Prima facie a case U/s 186/353/ 506 /212/34 IPC was made out against the accused person. After compliance of section 207 Cr. P.C , they were charged accordingly by the ld Predecessor of this court to which they pleaded not guilty and claimed to be tried.
3. Here it is pertinent to mention that during the pendency of the present case accused Hardayal expired and proceedings against him were abated .
4. In support of its case prosecution has examined six witnesses.
5. PW1 HC Jai Pal Singh , PW 2 ASI Jamil Ahmad , PW3 Insp. Ajay Pal Singh , PW4 Ct Jagbir , PW6 Ct. Rajesh are the members of the raiding party in whose presence the alleged incident took place . PW5 ASI Manmohan Singh is the duty officer who proved the (P3of 10) state vs Hardayal Singh etc.,.
(P/4) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri registration of FIR vide ExPw5/A.
6. Thereafter prosecution evidence was closed and statement of accused person u/s 281 Cr. PC were recorded in which the defence of the accused person were of denial simplicitor. However, accused person did not opt to lead any evidence in their defence.
7. I have perused the record, heard the Ld APP for the state and the ld counsel for accused person .
8. The story of the prosecution is that a police team had gone to the house of Birsun to arrest him in FIR no. 159/1994 , P.S Dabri in pursuance of the NBW issued against him and in such a way they were discharging their official duties. It is alleged that accused person in furtherance of their common intention get released said Brishan from their custody and obstruct them .
9. In order to prove its case prosecution has six witnesses . Examination in chief of PW3 Insp. Ajay Pal Singh was (P4of 10) state vs Hardayal Singh etc.,.
(P/5) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri recorded and his cross was deferred. In these circumstances, his testimony cannot not be read in evidence. If the testimonies of other remaining prosecution witnesses is put to close scrutiny it becomes crystal clear that same is not sufficient to convict the accused person for the alleged offence.
10. The testimonies of the police official is stereo type.
PW1 HC Jaipal had deposed that on 24.2.1996, following a secret information received by S.I Jai Prakash , he alongwith S.I Jai Prakash, S.I Ajay Pal Tomar( PW3) , HC Zamil Ahmad(PW2) , Ct. Jagbir (PW4), Ct Rajesh (PW6) , Ct Vijender and Lady Ct. Neelam had gone to the house of one Birsun at RZ B 1560, West Sagar Pur , New Delhi to arrest him in pursuance of the NBW's issued in case FIR no. 159/1994. They arrested him vide kalandara u/s 41.1. CrPC and one buttondar knife was recovered from his possession. He further deposed that when they were coming back alongwith said Birsun at about 6:40 pm , Birsun Shouted by saying that police official had arrested him and following his shouting , his father Hardayal , accused Krishan, Joga , Shaildenr Kaur and Swaran Kaur came there and started throwing stones on the police party and forced them to release the accused Birsum. Accused person also threatened police party (P5of 10) state vs Hardayal Singh etc.,.
(P/6) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri to kill them if if they would not release the said accused Birsun. They were met to cool down with the help of public person gathered at the spot and also arrested Har Dayal , Shelender Kaur , Swaran Kaur. Ct. Jagbir and S.I Ajay Pal Tomar sustained injuries and uniform of Ct. Jagbir was also torn by the accused person. PW1 was cross examined by the ld counsel for the accused.
11. PW2 ASI Jamil Ahmad , PW4 Ct. Jagbir and PW6 Ct.
Rajesh have have also deposed more or less on the lines of PW1. They were also cross examined by the accused person. During cross examination PW1 HC Jai Pal and PW2 ASI Jamil Ahmad replied that they reached at the spot at about 5:00 pm at remained there for about two hour. Pw6 Ct Rajesh who is also the member of the said team during his examination in chief deposed that at about 6:40 pm S.I Ajay Pal knocked the door of the house of accused Birsan and accused Birsan opened the door but during his cross examination he replied that he reached RZB 1560( house of the Birsan ) at about 5:00 5:15 pm and remained there for about two hour. One witness is saying that at about 6:40 pm they were returning from the spot after arresting Birsun vide Kalandra u/s (P6of 10) state vs Hardayal Singh etc.,.
(P/7) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri 41.1.CrPC but another witness is saying that Birsun opened the door of his house at about 6:40 pm. Both the witnesses are claiming to be the member of the team but are giving contradicting version which goes against the prosecution.
12. Further, PW1 HC Jai Pal Singh and PW2 ASI Jamil Ahmad deposed that accused person were made to cool down with the help of public persons gathered at the spot. PW4 Ct Jagbir deposed that accused Joga and Krishan managed to ran away from the spot and accused Hardayal , Swaran Kaur and Shailender Kaur were apprehended with the help of public person . But those public person were neither made witness nor they were examined . If public person were available then why they have not been asked to join the investigation. No explanation has been given by the prosecution in this regard .
13. From a bare perusal of testimony of PW's , their version appear to be stereo typed and keeping in view the fact that their narration remained uncorroborated by any other independent public witness who were available on the spot , it will be highly unsafe to rely (P7of 10) state vs Hardayal Singh etc.,.
(P/8) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that Prosecution case resting solely on the testimony of head constable and four other police constables no independent witness examined prosecution story appearing improbable and unnatural ' held that the prosecution case can not be said to be free from reasonable doubt and the accused is liable to be acquitted.
14. If the version of the police official is believed then, a team consisting of two Sub Inspector, two Head Constable, four constable had gone to arrest the Brisun . It is very surprising that accused person managed to get released said Brisun from their custody by threatening them to kill and even accused Joga and Krishan managed to fled away from the spot . Eight Police officials , who were equipped with the Dandas and revolver , could only managed to apprehended three accused person i.e Shalender Kaur , Hardayal and Swaran Kaur and that too with the help of public person . It creates doubt on the story of the prosecution which ultimately gives benefit of doubt to the accused (P8of 10) state vs Hardayal Singh etc.,.
(P/9) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri person.
15. Accused person are facing trial for an offence u/s 186/353/506/212/34 IPC on the allegations that they obstructed the public servant. But the name of the court which has issued the NBW against the Brishan , on the basis of which the team in question had gone to the house of the accused , has not been explained. Even the copy of the NBW has not been filed , to show that they had gone there in discharge of their official duties As per the story of the prosecution one Birsun was apprehended vide Kalandra u/s 41.1. CrPC but the copy of the same has not not been filed . This all goes against the prosecution .
16. Further, in the present case IO has not been examined. It is true that non examination of IO is not fatal to every case , but it is also true that in certain facts and circumstances, the examination of the IO becomes necessary . The previous statement of the prosecution witnesses who have been examined and who have not been examined could be proved by examining the Investigating officer who must have recorded the statement of these witnesses u/s 161 CrPC . There is no (P9of 10) state vs Hardayal Singh etc.,.
(P/10) FIR NO. 136/1996 u/s 186//353/506/212/34 IPC.
P.S. Dabri strong and convincing evidence to prove that the accused person have committed the alleged offences . In the present case , the deposition of the IO could have been sufficient to explain the contradiction in the case of the prosecution.
17. Keeping in view the above observation, facts and circumstances of the case, I am left with no option but to hold that prosecution has failed miserably to prove its case against the accused person beyond the shadow of doubt. Accordingly, accused Shailener Kaur, Kishan , Joga and Swaran Kaur , therefore, stands acquitted from the charge u/s 212/186/353/506/34 IPC. Their bail bond cancelled and sureties stands discharged .
18. File be consigned to record room.
(RAJESH KUMAR GOEL) Addl Chief Metropolitan Magistrate-02/Dwarka courts ANNOUNCED IN THE OPEN COURT TODAY I.E 4.1.2011 (P10of 10) state vs Hardayal Singh etc.,.