Delhi District Court
State vs . Harprasad Sharma on 2 August, 2023
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA, KARKARDOOMA COURTS, DELHI
FIR No. 258/21
PS - Jagatpuri
U/s 283/290/431 IPC
State Vs. Harprasad Sharma
JUDGMENT
A. SL. NO. OF THE CASE : 3775/21
B. DATE OF INSTITUTION : 04.08.2021
C. DATE OF OFFENCE : 12.07.2021
D. NAME OF THE : HC Raj Vardhan Singh, no.
COMPLAINANT 572/SHD
E. NAME OF THE ACCUSED : Harprashad Sharma s/o Lt. Lakhi
Ram Sharma.
F. OFFENCE COMPLAINED OF: u/s 283/290/431 IPC
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF FINAL ORDER : 02.08.2023
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused is produced before the court to stand trial for the offences punishable u/s 283/290/431 IPC.
2. In brief, facts of the case as alleged by the prosecution are that on 12.07.2021, IO HC Raj Vardhan and Ct. Prem Shankar were on patrolling vide DD no. 47A and at about 01.05 AM they reached near Gali no. 1, South Anarkali, near Som Bazar Chowk. It is alleged that they found that the said gali / FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 1 of 8 lane was blocked with rodi, badarpur, cement and a machine was kept there which was blocking the same and owner / accused herein of House no. 49, Gali no. 1, South Anarkali was putting second lenter due to which the lane was blocked. Upon query, the accused stated that he has not obtained any permission from MCD and thereafter photographs were taken by the IO HC Raj Vardhan and as the accused did not remove the machine, intimation was sent to the MCD control room. FIR u/s 283/431 IPC was registered and accused was not arrested as the offence was punishable with less than 7 years. Sec. 291 IPC was added in the case during the investigation and after completion of the investigation, charge-sheet was filed against the accused for the offence punishable u/s 283/291/431 IPC.
3. Accused appeared before the court and copy of charge-sheet was supplied to him as per Sec. 207 Cr.P.C on 26.08.2022. Further, accused Harparsad Sharma was charged for the offences u/s 283/290/431 IPC on 21.03.2023 by this Court to which he pleaded not guilty and claimed trial. As per section 294 Cr.P.C., accused admitted the FIR and certificate u/s 65B IE Act and accordingly, witness at serial no. 2 duty officer /HC Dharmveer Singh was dropped from the list of witnesses by this Court vide order dated 22.07.2023.
PROSECUTION'S EVIDENCE:
4. In order to prove its case, prosecution has examined following witnesses :
4.1 PW-1 Prem Shankar deposed that on 12.07.2021, he alongwith IO HC Raj Vardhan were on beat patrolling duty vide DD no. 47A Ex. PW1/A. He further deposed that they saw the road of gali no. 1, South Anarkali near Som Bazar was blocked by machine kept for construction as construction was going on in house no. 49. IO asked the owner / accused to remove the same but he failed to do so. PW-1 was given tehrir for registration of FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 2 of 8 FIR. IO prepared the site plan Ex. PW1/C and took the photographs vide Ex. PW1/D. Accused was correctly identified by PW-1 during his testimony.
During his cross-examination, PW-1 inter-alia stated that they were patrolling on government motorcycle and the photographs were taken by IO on his mobile phone and public persons were able to pass through other streets. Further, he deposed that the construction was taking place after dismantling the construction.
4.2 PW-2 HC Raj Vardhan deposed that on 21.07.2021, he was on patrolling duty alongwith PW-1 and gali no. 1 was found blocked due to construction work carried out by the accused. He further deposed that accused failed to produce any permission from MCD and accordingly, FIR was later registered. PW-2 also correctly identified the accused.
Upon his cross-examination by Ld. Defence counsel, PW-2 inter-alia deposed that no complaint was made and no public persons joined the investigation. He further deposed that no signature of any witness were taken on site plan and the proceedings were conducted at the spot.
5. After completion of the prosecution evidence, statement of accused u/s. 313 Cr.P.C was recorded on 02.08.2023 wherein the accused denied the case of the prosecution.
ARGUMENTS ON BEHALF OF THE PROSECUTION AND DEFENCE:
6. It was argued on the behalf of the defence that the prosecution has failed to make out any case against the accused and he deserves to be acquitted. It FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 3 of 8 was submitted by Ld. Counsel for accused that the accused has been falsely implicated by the police officials in the present case and the entire prosecution story is made-up and no offence has been committed by the accused. He further submitted that there is no link between the alleged construction material and the accused. He has further argued that prosecution has failed to establish that the alleged road where the construction material was found is in fact a public way.
7. On the other hand, it was argued by the Ld. APP for the prosecution that prosecution has established the guilt of the accused beyond reasonable doubt.
He has further argued that the prosecution has been able to establish that the accused has committed the offences under section 283/290/431 IPC as the accused had deliberately kept the building material on the public way and has committed mischief upon the public road and made it impassable.
FINDINGS WITH REASONS:
8. It is the case of the prosecution that during the patrolling in the area on 12.07.2021, IO HC Raj Vardhan and HC Prem Shankar noticed that construction material like cement, rodi and mixture machine were obstructed the public road i.e. Gali no. 1, South Anarkali near Som Bazar Chowk, Delhi. It is further the prosecution's case that upon inquiry the said building material was found to be belonging to the accused Harprasad Sharma.
9. Considering the allegations of the prosecution and the material available on record, the accused was charged for offence punishable under Section 283/290/431 IPC vide order dated 21.03.2023.
10. It is a settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also well settled that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 4 of 8 from the weaknesses, if any, in the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
11. At this stage, it is relevant to understand that the offences punishable under Section 283/431 IPC, which are reproduced hereinafter for better understanding:-
283. Danger or obstruction in public way or line of navigation.-Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.
431. 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 travelling or conveying property, shall be punished with imprisonment or either description for a term which may extend to five years, or with fine, or with both.
From the perusal of the aforesaid provisions it is apparent that to bring home the guilt of causing danger or obstruction in public way, the prosecution must prove act or omission on the part of the accused with respect to his property which can cause danger or obstruction or injury to public person.
12. As per the case of the prosecution charge under section 431 IPC has been framed which pertains to mischief by injury to public road, bridge, river or channel. Therefore, for attracting section 431 IPC, it is essential that some mischief must have been committed by the accused. The offence of mischief is defined under section 425 IPC which provides as follows.
FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 5 of 8
425. Mischief.- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
13 To prove the guilt of the accused for the offences he is charged with in the present matter it is incumbent upon the prosecution to prove the following facts:
a) that the accused has kept the his construction material in a way to obstruct the public way; and
b) that the accused has committed mischief and made the public road impassable or less safe for traveling or conveying property.
14. It is the cardinal principle of criminal law that the prosecution has to prove the guilt of the accused beyond all reasonable doubt. It is also well established that any material contradictions and material inconsistencies in the case of the prosecution shall go in the favour of the accused and while such contradictions exist, the accused shall not be convicted for the offence he is charged with. The prosecution is burdened to prove that there are no loopholes in the version put forth in the charge-sheet and in the considered opinion of this court any weaknesses in the prosecution's case shall be carefully scrutinized as the accused person is presumed to be innocent unless proved guilty.
FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 6 of 8
15. The entire case is based upon the allegation that the building construction material and mixture machine were found to be belonging to accused and the photographs of the construction material were taken by the IO. However, there is nothing on record to prove that the alleged construction material which was noticed by the police officials in the present matter actually belonged to the accused. The investigation in the present matter has been done in a shoddy manner and enough evidence has not been collected by the IO to bring home the guilt of the accused for the offences punishable under section 283/290/431 IPC. Further, the IO has also failed to proof on record the photographs allegedly taken by him and admittedly there is no proper certificate u/s 65B of the Indian Evidence Act, 1872.
16. The charge against the accused was framed under section 283/290/431 IPC, however, no evidence has been led on record to prove that there is obstruction or injury in any public way or that any mischief has been caused which is likely to render the alleged public road impassable or less safe for traveling. Admittedly no public witness was joined during the investigation and prosecution has failed to prove that the alleged road was actually a public way as required under the provision of section 431 IPC. Apart from the photographs of the construction material there is nothing on record to show that the area where the construction material kept was a public road. Even the said photographs have not been duly proved on record and they do not carry any date or time or any mention about the address or place from where the photographs were taken.
17. Therefore, in view of the above discussion, this court is of the considered opinion that the prosecution has miserably failed to prove the allegations leveled against the accused and the police has conducted investigation in the present case in a shoddy manner in complete ignorance of the provisions of law and therefore the accused is liable to be acquitted.
FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 7 of 8 Accordingly, in view of the findings given above, the accused is hereby acquitted.
18. Copy of this judgment be given free of cost to the accused against receiving.
Digitally signed
by BHARAT
BHARAT AGGARWAL
AGGARWAL Date: 2023.08.02
17:35:29 +0530
ANNOUNCED IN OPEN COURT (Bharat Aggarwal)
Today i.e. 02.08.2023 MM-05/ SHD, Karkardooma
Courts/Delhi
Present judgment consists of 8 pages and each page bears my initials.
Digitally signed by BHARAT BHARAT AGGARWAL
AGGARWAL Date:
2023.08.02
17:35:36 +0530
(Bharat Aggarwal)
MM-05/SHD,Karkardooma
Courts/Delhi 02.08.2023
FIR no. 258/21 PS Jagatpuri State vs. Harprasad Sharma Page no. 8 of 8