Delhi District Court
State vs . Akhilesh Solanki And Ors. on 18 September, 2017
CA No. 36/17
State Vs. Akhilesh Solanki and ors.
IN THE COURT OF VIKAS DHULL, SPL. JUDGE,
(PC ACT), CBI 03, DWARKA COURTS,
NEW DELHI
CA No. 36/17
ID No. 95/17
CNR No. DLSW010030322017
In the matter of:
State of NCT of Delhi
Through Public Prosecutor
... Appellant
Versus
(1) Akhilesh Solanki
S/o Late Kundan
WZ647, Mohaila Chhutiyal
Palam, Dwarka
(2) Hari Om Solanki
S/o Late Kundan
WZ647, Mohalla Chhutiyal
Palam, Dwarka
(3) Mange Ram
S/o Sh.Jeet Singh
RZC/49, Mahavir Vihar
Page no.1 /15
CA No. 36/17
State Vs. Akhilesh Solanki and ors.
Sec.1, Dwarka
New Delhi
... Respondents
Date on which file received by transfer:06.07.2017
Date on which judgment reserved :28.08.2017
Date on which judgment pronounced : 18.09.2017
JUDGMENT
1. Vide the present appeal, the appellant/State has challenged the judgment dated 28.01.2017 (hereinafter referred to as the impugned judgment) vide which respondents were acquitted for the offence under Sections 186/353/332/34 IPC.
2. The brief facts leading to the filing of present appeal are that Dr.V.K.Singh, Veternity Officer, Enforcement, gave a complaint to the police which was to the effect that in compliance with order of the Hon'ble High Court, a joint action for removal of stray cattle was fixed for 23.05.2008 and on that day, he alongwith Dr.Hemant Kaushik, Dr.Alok Aggarwal reached the office of DCP Page no.2 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
(SW) at 4.00 a.m.with 8 trucks and staff. Ten police persons in the supervision of HC Bhupender alongwith one lady constable were provided to the MCD staff and action was started. When staff reached near Mahavir Vihar, opposite Mahalaxmi Apartment, Sector2, Dwarka, approximately 7 cattles/buffaloes were found near the wall of the park. Directions were given to the staff to catch the animals from the site. Meanwhile, Harish Solanki, Mange Ram, S/o Jeet Singh and Akhilesh Solanki manhandled and abused the staff and got the cattles/buffaloes released from the staff of the MCD and locked these animals in house no. RZC108, Mahavir Vihar which belonged to accused Hari Om Solanki. During this manhandling, Kalicharan, cattle catcher got injuries and these persons were also provoking the public. A 100 number call was made and local police reached at the spot, after which, the removal of illegal dairy/stray cattle was started and the animals were seized. However, Mange Ram S/o Jeet Singh ran away from the spot. The Page no.3 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
other two accused were detained at the spot. On this complaint, the present FIR was registered.
3. After completion of investigation, charge sheet was filed against accused Hari Om Solanki, Akhilesh Solanki and Mange Ram.
4. Accused were summoned vide order dated 25.05.2010 when the cognizance was taken and vide order dated 02.12.2011, charge under Section 186/353/332/34 IPC was framed against all three accused to which they pleaded not guilty and claimed trial.
5. At trial, prosecution had examined as many as 14 witnesses.
6. The Ld.trial court, after hearing the arguments, had vide the impugned judgment, acquitted all the respondents for the offence under Section 186/353/332/34 IPC.
7. Aggrieved by the impugned acquittal judgment, Page no.4 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
appellant/State has preferred the present appeal.
8. I have heard Sh.Anil Kumar Gupta, Ld.Chief PP for appellant/State and Sh.Jaidev Solanki, Ld.counsel for the respondents. I have also summoned the trial court record and have carefully perused the same.
9. It was submitted by ld.Chief PP for appellant/state that in the present case, Ld.trial court has failed to appreciate that testimony of all prosecution witnesses had remained consistent regarding the act done by respondents and the identity of respondents.
10. It was further submitted that Ld.trial court did not appreciate the fact that all prosecution witnesses are eye witnesses of the incident in question and have fully supported the case of prosecution on all material aspects.
11. It was further submitted that contradiction pointed out by ld.trial court in testimony of prosecution witnesses are minor in nature and does not affect the core issue of Page no.5 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
prosecution and should have been easily ignored.
12. It was further submitted that injured i.e. PW1 Kalicharan has withstood the crossexamination and had clearly deposed against all respondents regarding they assaulting him while he was performing his official duty.
13. It was further submitted that testimony of PW1 Kalicharan has been supported by other government officials i.e. PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal, who were members of the raiding party.
14. It was further submitted that injuries on the person of PW1 Kalicharan stand duly proved as per his MLC duly proved by PW11 Dr.Rishi Kanava. Accordingly, a prayer was made to set aside the impugned judgment and to convict the respondents for the offence with which they have been charged with and punish them accordingly.
15. On the other hand, Ld.Counsel for respondents have Page no.6 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
submitted that the Ld.trial court has taken into account the evidence of material witnesses and after appreciating their evidence, it has recorded the finding that prosecution witnesses cannot be believed as there is material contradiction regarding the place of incident and the manner in which PW1 Kalicharan was assaulted.
16. It was further submitted that the order of the Ld.trial court in acquitting the respondents do not call for any interference as the same is based upon the evidence which had come before the Ld.trial court and since evidence produced by the prosecution was not reliable and trustworthy, therefore, the Ld.trial court had disbelieved the prosecution witnesses and had acquitted the respondents. Accordingly, a prayer was made to dismiss the appeal.
17. I have considered the rival submissions and have carefully perused the record.
18. As far as offence under Section 186/34 IPC is Page no.7 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
concerned, this court is of the view that the Ld.trial court rightly acquitted the respondents for the said offence.
19. With regard to offence under Section 186 IPC, there is a bar under Section 195 Cr.P.C. and as per Section 195 Cr.P.C., no court can take cognizance of an offence under Section 186 IPC unless a complaint in writing is made to the court of the public servant concerned or of some other public servant to whom he is administratively subordinate.
20. In the present case, the complaint under Section 195 Cr.P.C. is Ex.PW14/C and the same has been exhibited by PW14 Inspector Atul Tyagi, who is admittedly not the author of the complaint under Section 195 Cr.P.C. Ex.PW14/C.
21. None of the prosecution witnesses have deposed regarding giving of complaint Ex.PW14/C. Therefore, Ex.PW14/C was never proved on record. Therefore, the ld.trial court rightly acquitted the respondents for the Page no.8 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
offence under Section 186/34 IPC in the light of bar under Section 195 Cr.P.C.
22. With regard to offence under Section 353/332/34 IPC, the material witness of the prosecution was PW1 Kalicharan, who was allegedly injured in the incident.
23. As per PW1 Kalicharan, entire raiding team had gone to plot no. C108 to untie some stray cattles tied with an iron chain and when officials were boarding stray buffaloes in the truck, then respondents had mishandled the raiding team and had beaten up PW1 Kalicharan.
24. However, testimony of PW1 Kalicharan regarding the manner in which he was assaulted by respondents is not corroborated by other members of the raiding team i.e. PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal.
25. As per testimony of PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal, incident Page no.9 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
had taken place in the following manner: The raiding team had found approximately seven stray cattle tied by the side of wall of the park and when member of the raiding team was trying to untie the stray cattle found tied near the wall of the park, then it was, at this stage that respondents had intervened and had beaten up the members of the raiding team and had taken the cattle to house no. RZC108, Mahavir Vihar. Thereafter, the local police was informed and with the help of local police, cattle was taken back into the custody of raiding team.
26. Therefore, there is material contradiction in the testimony of PW1 Kalicharan and that of PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal, who are all members of the raiding party regarding the place of incident. As per PW1 Kalicharan, place of incident was C108, Mahavir Vihar and PW1 Kalicharan was assaulted when raiding team was trying to Page no.10 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
load the cattle in the truck. However, as per testimony of PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal, incident took place when the members of raiding team had untied the stray cattle from the boundary wall of the park and at this stage, respondents had intervened and had taken them to their house i.e. RZ C108, Mahavir Vihar and in this process, injured PW1 Kalicharan was beaten up. Therefore, due to this contradiction regarding place of incident, testimony of PW1 Kalicharan, PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal cannot be believed as despite being members of same raiding team, they are not corroborating each other in material particulars.
27. Even testimony of PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal that local police had helped them in taking back custody of stray cattle from RZC108, Mahavir Vihar, is also not corroborated by the members of local police i.e. PW10 HC Page no.11 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
Ramdeen, who had reached at the spot alongwith the IO.
28. Another fact which creates a doubt in the prosecution witnesses is the testimony of PW7 Manoj, who was the member of raiding team and was entrusted with the job of videography of the incident.
29. Since PW7 Manoj was an eye witness and was video recording the incident, therefore, he must have seen the entire incident taking place before his eyes. However, in his examinationinchief, he has not specifically deposed that it was PW1 Kalicharan, who was beaten up by respondents and even in his crossexamination, it was admitted by PW7 Manoj that he has never stated to the police that manhandling was done by respondents. Therefore, testimony of PW7 Manoj also do not support the case of PW1 Kalicharan, PW2 Dr.V.K.Singh, PW3 Dr.Hemant Kaushik and PW5 Dr.Alok Aggarwal that it was respondents, who had manhandled the members of the raiding team or had beaten up PW1 Kalicharan.
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30. Another doubt which has been created in the prosecution case is the crossexamination of PW5 Dr.Alok Aggarwal, one of the members of the raiding team. In his crossexamination, it was admitted by PW5 Dr.Alok Aggarwal that he was not certain as to who had inflicted injuries to the members of the raiding team and who had obstructed the members of the raiding team. Therefore, this crossexamination of PW5 Dr.Alok Aggarwal creates a doubt regarding respondents being the assailants or causing any obstruction in the official duty of the raiding team.
31. The prosecution had produced on record the photographs of the incident which are collectively marked as Ex.P1. The said photographs were shown to PW1 Kalicharan and in his crossexamination, after seeing the same, it was admitted by PW1 Kalicharan that he is not visible in the photographs and neither respondents are manhandling or restraining any of their staff.
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Therefore, photographs also do not prove the involvement of respondents in manhandling the members of raiding team or causing beating to PW1 Kalicharan.
32. As per the evidence of members of raiding team, video recording was done of the entire incident and the CD of the incident was also placed on record. However, ld.trial court did not rely upon the same in absence of any certificate under Section 65B of the Indian Evidence Act, 1872.
33. This court is of the view that CD was rightly not relied upon by the ld.trial court as it was prepared from a recording device, therefore, was required to be accompanied with a certificate under Section 65B of the Indian Evidence Act, 1872 and in absence of the same, said CD was not admissible.
34. In the light of above discussion, prosecution evidence which was led on record, did not prove beyond reasonable doubt that it was respondents, who had Page no.14 /15 CA No. 36/17 State Vs. Akhilesh Solanki and ors.
assaulted PW1 Kalicharan or had obstructed other members of the raiding team in performance of their duties.
35. Therefore, in the opinion of this court, Ld.trial court rightly acquitted the respondents for the offence with which they have been charged with as prosecution evidence was not reliable and trustworthy. Hence, the appeal is dismissed. Let respondents file bond in terms of Section 437A Cr.P.C. on 19.09.2017.
Announced in the open court Dated: 18.09.2017 (Vikas Dhull) Spl. Judge (PC Act) (CBI)03 Dwarka Courts/New Delhi Page no.15 /15