Delhi District Court
State vs . Om Prakash & Ors. on 5 August, 2008
State Vs. Om Prakash & Ors.
FIR No.: 1094/96
IN THE COURT OF SHRI MAHESH CHANDER GUPTA
ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
State Vs. Om Prakash & Ors.
FIR No.: 1094/96
PS : Janak Puri
U/s 447/448/452/506/427/34 IPC
JUDGMENT :-
(a) Sl. No. of the case : 491/2 of 2008
(b) Date of commission of the offence : 21.11.1996
(c) Name of the complainant if any : State
(d) Name of the accused person, and his parentage and Address : Om Prakash S/o Sh. Chajju Ram R/o Village Nawada Delhi.
ii.Nafe Singh S/o Sh. Fateh Singh R/o Village Nawada Delhi.
iii.Narender Kumar S/o Sh. Tara Chand R/o Village Nawada Delhi.
iv.Ved Singh S/o Sh. Jaimal Singh R/o Village Nawada Delhi.
v. Sanjeev Kumar S/o Sh. Ran Singh R/o Village Nawada Delhi.
Page 1 of 12
FIR No.: 1094/96 vi. Tek Chand S/o Sh. Roop Chand R/o Village Nawada Delhi.
(Since deceased)
vii. Prem Singh
S/o Sh. Rishal Singh
` R/o Village Nawada
Delhi.
viii.Vinod Kumar @ Kukoo
S/o Late Sh. Tek Chand
R/o Village Nawada
Delhi.
(e) Offence complained of : U/s 447/448/427/452/506/34 IPC
(f) Plea of the accused : Pleaded not guilty.
(g) Final Order : Acquitted.
(h) The date of such order : 05.08.2008
Date of institution of case: 17.12.1997
Date on which judgment reserved: 05.08.2008 Date of judgment : 05.08.2008 BRIEF STATEMENT OF THE REASONS FOR DECISION:
The prosecution case in brief is, that on 21.11.1996 at about 1.02 P.M. at premises no. A-1 Patel Garden, Kakrolla, Delhi, within the jurisdiction of PS Janak Puri accused Om Prakash, Nafe Singh, Narender Kumar, Ved Singh, Sanjeev Kumar, Page 2 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 Tek Chand (since deceased), Prem Singh and Vinod Kumar @ Kukoo in furtherance of their common intention committed house trespass after having made preparation for causing hurt to persons present over there and putting them in fear of hurt and also in the process criminally intimidated the owner/ complainant Surender Kumar Bakshi, who was present over there and also committed mischief by causing damage to an amount of more than Rs. 50/- to the boundary wall already constructed over there and to the roof of the room built over there and also gave beatings to owner Surender Kumar Bakshi and caused simple hurt on his person and thereby committed offences punishable u/s 452/506/427/323/34 IPC.
2. During the proceedings accused Tek Chand S/o Sh. Roop Chand had expired and proceedings against him were ordered to be abated by the Ld. Predecessor Court vide order dated 23.05.2000.
3. In support of its case prosecution has produced and examined nine witnesses namely PW-1 Surender Kumar Bakshi, PW-2 Ramesh Bakshi, PW-3 Gurbachan Singh, PW-4 Wazir Singh, PW-5 HC Dharambir Singh, PW-6 HC Brahm Swaroop, PW-7 SI Swadesh Prakash, PW-8 Kewal Kumar and PW-9 HC Raja Ram.
PW-1 Surender Kumar Bakshi, who is the complainant and proved his statement made to the police Ex.PW-1/A. Page 3 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 PW-2 Ramesh Bakshi, who is the younger brother of PW-1 Surender Kumar Bakshi and deposed that Plot No. A-1 Patel Garden Kakrolla More was purchased by his elder brother Surender Kumar Bakshi on 13.07.1981 from Sh. Mahender Singh S/o Harnam Singh and power of attorney was executed in his (PW-2 Ramesh Bakshi) name and thereafter he (PW-2 Ramesh Bakshi) returned the power of attorney to his brother and he wants to take electric and water connections. His elder brother Surender Bakshi is the owner of the said plot.
PW-3 Gurbachan Singh, who deposed that he is the neighbour of Surender Kumar Bakshi, who purchased a plot no. A-1 Patel Garden from Mahender Singh S/o Harnam Singh and the plot was purchased in the name of his (PW-1 Surender Kumar Bakshi) younger brother Ramesh Bakshi and the documents were prepared and he (PW-3 Gurbachan Singh) signed the documents as witness.
PW-4 Wazir Singh, who deposed that he is Head Constable from Delhi Police and was residing at A-8 Patel Garden, Kakrolla, since 1986 and he knows Surender Kumar Bakshi since 1986 and the said plot was repaired by Surender Kumar Bakshi in the Year, 1986. He is also a member of the Society of Patel Garden.
PW-5 HC Dharambir Singh, who is the initial IO of the case, who deposed on the investigational aspects and proved the rukka Ex.PW-5/A, the seizure memo of Page 4 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 the jeep no. DL-3C-2462 Ex.PW-5/B and the personal search memo of the accused Tek Chand (since expired), Om Prakash, Nafe Singh, Narender Kumar, Ved Singh and Sanjeev Kumar Ex.PW-5/C to Ex.PW-5/H respectively.
PW- 6 HC Brahm Swaroop , who deposed that on 21.11.1996 he was posted at PP Matiala, PS Janakpuri and has joined investigation with IO HC Dharambir and deposed on the investigational aspects.
PW-7 SI Swadesh Prakash, who is the subsequent IO of the case, who deposed on the investigational aspects and proved the site plan Ex.PW-7/A, copy of the FIR Ex.PW-7/B besides proving the other memos.
PW-8 Kewal Kumar, who deposed that he knows Surender Kumar Bakshi since 1981, who had taken Plot No. A1, Patel Garden, Kakrola, Delhi from Mahinder Singh. Surender Kumar Bakshi had also constructed a room over the said plot, who visited the same regularly.
PW-9 HC Raja Ram, who is the Duty Officer, who proved the copy of the FIR Ex.PW-7/B and his endorsement at Point-B on the rukka.
3. Statements of accused Om Prakash, Nafe Singh, Narender Kumar, Ved Singh, Sanjeev Kumar, Prem Singh and Vinod Kumar @ Kukoo were recorded U/s Page 5 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 281 Cr.P.C wherein they have denied the allegations of the prosecution and stated that they are innocent and have been falsely implicated in this case. Accused did not prefer to lead any defence evidence.
4. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
5. On careful perusal and analysis of the entire evidence on record I find that no corroborative, consistent, reliable and sufficient evidence to make up the edifice of the prosecution case has been produced by the prosecution. Moreover the testimonies of the prosecution witnesses do not inspire confidence.
6. There are material contradictions in the testimonies of the prosecution witnesses which go the the root of the case.
7. Undisputably as per the prosecution the alleged incident is of dated 21.11.1996.
PW-5 HC Dharambir Singh, who is the initial IO in his cross-examination has inter-alia deposed that Page 6 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 "The statements of PW-4 Wazir Singh and PW -8 Kewal Kumar were recorded on 15.11.1996. The statements of both the witnesses were written by me. It is correct that under the statements U/s 161 Cr.P.C of Wazir Singh and Kewal Kumar, initially my attestation bears date 12.11.96 and overwriting on it bears 15.11.96."
When the alleged incident is of 21.11.1996 then how and why the recording of the statements of Wazir Singh PW-4, Kewal Kumar PW-8 is of dated 15.11.1996. Does it mean that the investigation of the case was started prior to the registration of the case on 21.11.1996. Why and in what circumstances, the recording of the statement of PW-4 Wazir Singh and PW-8 Kewal Kumar has been done on 15.11.1996 by PW-5 HC Dharambir Singh, the initial IO? No plausible explanation has been placed by the prosecution in this regard. It creates doubt and suspicion in the prosecution case.
8. PW-5 HC Dharambir Singh in his examination-in-chief has deposed that the jeep no. DL-3C-2462 was seized vide seizure memo Ex.PW-5/B. PW-1 Surender Kumar Bakshi in his examination-in-chief has deposed that "Police had also taken the jeep in their possession." The perusal of the seizure memo of the jeep Ex.PW-5/B inter-alia shows that it does not bears the signature of PW-1 Surender Kumar Bakshi. Why it does not Page 7 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 bears the signature of PW-1 Surender Kumar Bakshi, when he was a witness to the seizure of the said jeep? No plausible explanation has been placed by the prosecution in this regard. It creates doubt and suspicion in the prosecution case.
9. PW-1 Surender Kumar Bakshi in his examination-in-chief has deposed that " At the time of incident I know their (accused) names as they were taling each other."
While during his cross-examination PW-1 Surender Kumar Bakshi has taken a complete 'U-Turn' and has deposed that "I came to know the name of aforementioned persons on interrogation of police had (and) prior to that I not knowing their name. Police Police asked the said persons about their name and I police wrote their names of their own after enquiring their names and I did not give their name."
10. PW-5 HC Dharambir Singh in his cross-examination has deposed that SI Swadesh Prakash (PW-7) came at the spot at about 6.00 pm. The rukka was prepared by him (PW-5 HC Dharambir Singh) in his handwriting and the same was prepared at about 5.15 pm. PW-6 HC Brahm Swaroop in his cross-examination has deposed that Page 8 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 "SI Swadesh Prakash was not present at the time when I took the tehrir. I took the tehrir at about 5.15 pm to PS and had returned to the spot at 7 pm and there SI Swadesh Prakash was found present and no other police official or SHO was present there."
While PW-7 SI Swadesh Prakash the subsequent IO in his cross- examination has deposed that he reached at the spot at about 5.00 pm. From above it is clearly indicated that the said Pws are deposing inconsistently. Their testimonies do not inspire confidence. It creates doubt and suspicion ink the prosecution case.
11. PW-5 HC Dharambir Singh in his examination-in-chief has deposed that six accused namely Tek Chand (since deceased), Om Prakash, Nafe Singh, Narender Kumar, Ved Singh, Sanjeev Kumar were arrested and their personal searches were conducted vide personal search memos Ex.PW-5/C to Ex.PW-5/H respectively.
PW-1 Surender Kumar Bakshi in his examination-in-chief has inter-alia deposed that all the accused persons were apprehended.
The perusal of the personal search memos of accused Tek Chand (since deceased), Om Prakash, Nafe Singh, Narender Kumar, Ved Singh, Sanjeev Kumar, Ex.PW-5/C to Ex.PW-5/H respectively clearly shows that the said personal search Page 9 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 memos have not been signed by PW-1 Surender Kumar Bakshi. Why the said personal search memos Ex.PW-5/C to Ex.PW-5/H have not been signed by PW-1 Surender Kumar Bakshi, when he is the witness to the arrest of the said accused? It creates doubt and suspicion in the prosecution case and does not rule out false implication. In the circumstances, there is no evidence proved on record that the accused gave beatings to PW-1 Surender Kumar Bakshi or caused simple hurt on his person or committed any mischief by causing damage to the boundary wall and the roof or committed any house trespass in the premises in question.
12. PW-5 HC Dharambir Singh in his examination-in-chief has deposed that jeep no. DL-3C-2462 was seized vide seizure memo Ex.PW-5/B and was deposited in the malkhanna.
His testimony is not corroborated by any material on the record. In that case the MHC(M) and relevant Malkhanna register must have been produced and proved on the record, but that has not been done in this case. Such linking evidence is lacking in the prosecution case.
13. Apart from this, their (police officials) presence at the spot is not proved. If they had departed from PS on receipt of any information, the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Page 10 of 12 State Vs. Om Prakash & Ors.
FIR No.: 1094/96 Roznamancha had been produced it would have not shown their departure as alleged.
14. It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has been given to the accused. In my this view I am fortified with the observations made in case State of Rajasthan Vs. Dulat Ram 1980 CAR 169 (SC) wherein it was held that prosecution failed to prove all the links. Accused was acquitted.
In view of the above, I hold that prosecution has failed to prove its case beyond reasonable doubt against accused Om Prakash, Nafe Singh, Narender Kumar, Ved Singh, Sanjeev Kumar, Prem Singh and Vinod Kumar @ Kukoo. They are given the benefit of doubt and are acquitted of the offences punishable U/s 452/506/427/323/34 IPC. Accused are on bail. Their bailbonds cancelled and sureties stand discharged.
Announced in the open Court This on the 5th Day of August, 2008 (Two spare copies attached) (MAHESH CHANDER GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE ROHINI : DELHI.
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