Delhi District Court
State vs . Raj Kumar Kashyap on 16 December, 2015
IN THE COURT OF MS. SHILPI JAIN
METROPOLITAN MEGISTRATE-01 (CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.554/06
PS -Karol Bagh
State Vs. Raj Kumar Kashyap
Unique Case ID No.02401R0667482007
JUDGMENT
(a) Sr. No. of the Case 02401R0667482007
(b) Date of offence 24.12.2006
(c) Complainant HC Bhanwar Lal.
(d) Accused Raj Kumar Kashyap
S/o Sh. Chunni Lal
R/o H. No. 4/21, WEA, Sarswati Magar,
Karol Bagh, Delhi.
(e) Offence 431 IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 11.07.2007
(i) Date when judgment was 16.12.2015
reserved
(j) Date of judgment 16.12.2015
1. The present FIR was registered at PS Karol Bagh against the accused namely Raj Kumar Kashyap for the offences U/s 283/431 IPC. FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 1 to 20
2. Briefly stated, the facts of the case are that on 24.12.2006 at about 06.45 pm at shop no. 3924/28, Menz Beauty Palace, Delhi, within the jurisdiction of PS Karol Bgh, accused Raj Kumar Kashyap knowingly made cemented staris at parti in front of aforesaid shop on the public road which diminished its value and made it less safe for traveling for public and caused hindrance to the movement of the public and thereby committed offence punishable u/s 431/283 IPC.
3. After completion of the investigation, chargesheet was filed by the police in the Court and the copy of the challan was supplied to the accused on his appearance thereafter in compliance of provision u/s 207 CrPC. However, in the facts and circumstances of the case and on the basis of material on record, charge of the accusation for the offence u/s 431 IPC was framed and put to the accused vide order dated 07.11.2007 by Ld. Predecessor, to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
4. In order to prove the guilt of the accused, prosecution examined 05 FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 2 to 20 witnesses:-
5. PW-1 is HC Kailash, who deposed that on 24.12.2006 he was posted at PS Karol Bagh as Duty Officer from 04.00 pm to 12 midnight. He further deposed that on that day at about 07.40 pm Ct Mohar Singh brought a rukka sent by HC Bhanwar Lal, that on the basis of said rukka, he registered the case FIR no. 554/06 U/s 283/431 IPC, that copy of the FIR is Ex. PW 1/A, that he also made endorsement on the rukka which is Ex. PW 1/B.
6. PW-2 is HC Mohar Singh, who deposed that on 24.12.2006 he was posted at PS Karol Bagh, that on that day he was on patrolling duty with HC Bhanwar Lal, that when they reached at shop no. 3924/28, Padam Singh Road at about 06.45 pm they found one cemented stairs in front of Menz Beauty Palace, that HC Bhanwar Lal asked the occupier of saloon Raj Kumar Kashyap who is now present in the court to remove the stairs but he was not ready to remove, that HC Bhanwar Lal prepared the tehrir and got registered the case through him, that at about 07.30 am he left the spot with rukka and reached to PS within ten minutes where he got FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 3 to 20 registered the case, that after registration of the case, he came to the spot with copy of FIR and tehrir to HC Bhanwar Lal, that HC Bhanwar Lal arrested the accused Rajkumar vide arrest memo is Ex. PW 2/A and conducted his personal search vide personal search memo Ex. PW 2/B, that accused was released on bail, that photographs were taken by the IO.
7. During the cross examination of PW-2, he deposed that he cannot say whether there was any complaint against the accused on 24.12.2006 before they started their visit. He further deposed that he is not sure whether visit/departure was made in the register, that there may be time of about 6.45 pm when they visited the shop of accused on 24.12.2006. He denied the suggestion that they visited the shop of the accused at about 9.15 pm on 24.12.2006. He further deposed that he cannot say whether there was existing new frontier hotel in shop no.2, Gafar Market, Delhi and same is his reply with regards to its owner Sh. Baldev Singh, that he cannot say whether Bhanwar Lal visited the shop of the accused at the instance Sh. Baldev Singh, that he cannot say whether the name of the complex is Padam Chamber but he know the number of the building FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 4 to 20 which is 2924. He admitted that complex is constructed up to first floor. He further deposed that he cannot say how many shops were in existence on the ground floor of the said complex. He voluntarily deposed that there were shops and offices in the building. He further deposed that he cannot give the names of other shops, that there may be five shops on the ground floor of the said complex but he cannot give there exact number. He admitted that the stairs were already in existence leading to all the shops. He further deposed that he cannot say whether complex has been existence since about 1990-92 and the accused had purchased the same in 1994-95 when the stairs were already in existence, that there was no written complaint with them from anyone before they visited the shop of the accused, that no statement was recorded on the spot, that he do not know whether any complaint made by the accused against Sh. Banwarlal on 25.12.2006 to the Commissioner of the Police, that he cannot say whether accused made complaint Ex.PW3/D1, that he cannot say whether the police is not entitled to make any such complaint without receiving a complaint from the MCD. He denied the suggestion that the accused is falsely implicated in present case at the instance of the Sh. Baldev Singh.
FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 5 to 20
8. PW-3 is HC Bhanwar Lal (complainant), who deposed that on 24.12.2006 he was posted at PS Karol Bagh as Head Constable. He further deposed that on that day, he was on patrolling duty along with constable Mohar Singh and while patrolling at about 06.45 pm, they reached at Padam Singh Road, Regar Pura, New Delhi near the shop in the name and style of Mens Beauty Palace, there they noticed that the owner of the said shop had constructed cemented stairs outside the shop on both sides due to which passersby were feeling obstructions and inconvenience, that he called one photographer who took the photographs of the stairs which are mark X, that thereafter, he prepared a tehrir and handed over the same to Constable Mohar Singh, who went to the PS, got the case registered and returned at the spot along with copy of FIR and original tehrir and handed over the same to him, that he prepared the site plan which is Ex. PW 3/A, that accused was arrested, that arrest memo and personal search memo to this effect are already Ex. PW 2/A and PW 2/B respectively, that offence was bailable, that accused was released on bail at the spot on furnishing surety, that he conclude the investigation and handed over the case file to SHO.
FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 6 to 20
9. During cross examination of PW -3, he deposed that he entered his visit in the record before proceeding, that he has not brought the said record. He admit suggestion that the shop in question is situated in the Padam Complex at Padam Singh Road, Karol Bagh, New Delhi. He further deposed that there were two shops in the aforesaid complex. He denied the suggestion that there were 5 shops in the complex. He further deposed that he cannot say about the total number of shops on the ground floor of the complex but he admitted that there were shop of power cleaner and Arora Medicos. He denied the suggestion that the stairs to the shops were common. He voluntarily deposed that these stairs were only in the shop of the accused. He further deposed that he did not make enquiry on the spot as to since when the aforesaid complex has in existence, that he cannot say whether the construction of the complex was raised during the period 1990-92, that he cannot say whether the shops on the ground floor of the complex has been in existence since then, that he cannot say whether the accused had purchased the shop in question which was already constructed, that he cannot say whether the accused had purchased the shop in 1994/95. He admitted that the shop of FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 7 to 20 the accused has been in the same condition since it purchased. He further deposed that he do not remember as to whether Sh. Baldev Singh has been running new Frontier Hotel in shop no.2, Gafar Market, Karol Bagh, Delhi. He denied that he visited the shop of accused at the instance Sh. Baldev Singh. He further deposed that he did not make complaint against any shopkeeper as the stairs were only in the shop of the accused. He denied the suggestion that the stairs have been in existence in all the shops since construction of the complex. He further deposed that he received a complaint from MCD prior to 24.12.2006 against all, that he did not record the said fact in the daily dairy before his visit, that he has not filed the aforesaid complaint of the MCD on record, that he recorded the statement of the JE on 24.12.2006. He denied that he did not received any complaint against the accused from MCD and nor statement of the JE was recorded by him on 24.12.2006. He admitted that he recorded the statement of JE on 06.06.2007 after registering the FIR against the accused. He denied that he recorded the statement of the JE in order to support his false case, that he visited the shop of the accused at about 9.15 p.m on 24.12.2006 at the instance of Sh. Baldev Singh and misbehaved with accused and his wife and cause harassment and FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 8 to 20 extended threats. He further deposed that he do not know whether the accused made a complaint against him through his counsel on 25.12.2006 and the same is Ex.PW3/D1. He denied that he has involved the accused in the present case falsely. He admitted that the stairs were already in existence. He further deposed that he do not know whether the stairs has been in existence since purchase of shop by the accused. He denied that he is deposing falsely.
10.PW-4 is Shri Vishram Meena, J. E., Inderlok, who deposed that in the year 2007, he was posted as J. E. at office of Executive Engineer Division no. 29, Old Rajinder Nagar, Karol Bagh, New Delhi. He further deposed that on 06.06.2007, he visited the shop 2924/28, Padam Singh Road, Regar Pura and the owner of which was Raj Kumar Kashyap, that he found some cemented stairs/steps constructed there, that the said /stairs were constructed illegally on the land of MCD due to which public felt inconvenience, that after seeing the photographs already mark X, witness has identified the spot.
11.During the cross examination, PW-4 deposed that he did not visit the site FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 9 to 20 before 06.06.2007. He further deposed that he conducted his routine visit, that he did not make any entry in the record before starting his visit, that he cannot tell the name of the complex which he visited on 06.06.2007, that the complex was consisting of construction of ground floor plus three floors, that he cannot tell how many shop were existing on the ground floor of the complex, that he cannot say when the complex was constructed, as he was posted in 2005, that he cannot give the number of the shop in question, that he cannot give the numbers of the shops in the complex and there occupants, that he cannot say whether the complex in question was existing prior to 1989, that he do not know whether the accused had purchased constructed shop in 1989 from its owner. He admitted that the stairs were existing in all the five shops on ground floor of the complex, that stairs in all the shops have been in existence since construction of the complex itself. He admitted that the accused put marble tills on the stairs on front of his shop. He further deposed that the FIR was not registered at the instance of MCD, that he did not make any complaint to the police after his visit on 06.06.2007. He voluntarily deposed that he inquired from the police and informed that the FIR was already registered. He admit that the FIR was got registered by Banwari FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 10 to 20 Lal police official. He further stated that he is not sure of the name. He further deposed that he do not know whether Sh. Bhawarlal and Sh. Mohar Singh from Ps Karol Bagh visited about 9.15 pm, he do not know whether the accused was caused harassment by the police official at the instance of brother in law of accused Sh. Baldev Singh, that he has heard about said Baldev Singh but he cannot give the detail as he remain few days in said zone of the area, that he cannot say whether Sh. Bahwarlal falsely implicated in the present case. He denied the suggestion that he is deposing falsely.
12.PW-5 is Sh. Deepak, who deposed that he was called by the IO at the spot i.e. Padam Singh Road Raiger Pura near Menz Beauty Place and he clicked the photograph of the stairs from a digital camera which are already Mark X.
13.Thereafter, PE was closed and matter was fixed for SA. Statement of accused under Section 313 Cr.PC was recorded by putting entire incriminating evidence to the accused. The accused denied all the allegations against him and stated that he has been falsely implicated in FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 11 to 20 the present case. Accused chose not to lead DE and matter was fixed for final arguments accordingly.
14.Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
15.Accused is charged with the offence U/s 431 IPC. Section 431 IPC stipulate as:-
" Mischief by injury to public road, bridge, river or channel-Whoever commits mischief by doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for traveling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both".
16.Perusal of the record reveals that there are the allegations of constructing cemented stairs at patri by the accused which diminished its value and made it less safe for the public by causing hindrance in the movement of the public. Perusal of the entire evidence reveals that there is not even a single eye witness to the alleged construction of stairs being raised by the FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 12 to 20 accused or at the instance of the accused. Furthermore, PW-2 HC Mohan Singh categorically deposed in his cross examination that there was no complaint against the accused on 24.12.2006 i.e. the date of the incident. He also admitted in the cross examination that the alleged stairs were already in existence leading to all the shops . He also admitted that there is no written complaint lodged against the accused by anybody levelling allegations in question before police officials made visit to the shop of the accused. He also admitted that no statement was recorded at the spot. Therefore, as admitted by PW-2 stairs were already in existence and therefore, there is no evidence on record to prove that stairs causing hindrance were constructed either by the accused or at the instance of the accused at any point of time. PW-3 HC Bhanwar Lal mentioned about the photographs of the stairs in his testimony, however, said photographs have not been proved in accordance with law and as per provisions pertaining to electronic evidence. Furthermore, admittedly, there is no independent witness examined by the prosecution despite the fact that place in question is a public place as allegedly stairs were constructed on a patri.
FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 13 to 20
17.In view of the opinion of this Court, the non-joining of public witness is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining public witnesses. In case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 14 to 20 the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 15 to 20 "It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 16 to 20 serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 17 to 20 aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No. 504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
18.Furthermore, PW-3 ASI Bhanwar Lal categorically deposed that he cannot say about the total number of shops at the ground floor of the complex but he admitted that there were shops of power cleaner and Arora Medicos. He further deposed that he received the complaint from MCD prior to 24.12.2006 but he did not record the said fact in the daily diary before his visit and he has not filed the aforesaid complaint on court record, therefore, admittedly, there is no MCD complaint either in the record of FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 18 to 20 police or on the court record. Therefore, it cannot be presumed by any stretch of imagination in the absence of complaint on court record that there was a complaint as mentioned in the cross examination by PW-3. He also categorically admitted that stairs were already in existence. PW-4 Sh. Vishwram Meena, J. E. also admitted that he found some cemented stairs. During cross examination, he admitted that stairs were existing in all the five shops and those stairs in all the shops have been in existence since the construction of complex. He categorically deposed during cross examination that FIR was not registered at the instance of MCD and he did not make any complaint to the police, thereby contradicting testimony of PW-3, who deposed that he received the complaint from MCD.
19.In view of aforesaid discussion and appreciation of evidence, material contradictions in the testimony of PWs and categorical admission by the PWs that stairs were already in existence and absence of any independent witness/eye witness to the construction of stairs by the accused, prosecution miserably failed to prove the guilt of accused beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Raj Kumar Kashyap is FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 19 to 20 hereby acquitted of the offences u/s 431 IPC .
20.Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is Accepted for a period of six months from today.
21.File be consigned to the record room after due compliance. Pronounced and Signed in the Open Court on 16th December, 2015.
(Shilpi Jain) MM-01(Central)/THC/Delhi 16.12.2015 FIR No. 554/06 State Vs. Raj Kumar Kashyap Page No. 20 to 20