Delhi District Court
State vs . Mohinder Singh Etc. on 5 February, 2011
FIR No. 110/90
PS Narela
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 110/90
U/s. 160/186/353/34 IPC
PS: Narela
State vs. Mohinder Singh etc.
Date of Institution of case:- 06.12.90
Date of Judgment reserved:- 05.02.11
Date on which Judgment pronounced:- 05.02.11
JUDGMENT
Sl. No of Case :816/2 Date of commission of offence :19.05.90 Name of complainant :Assistant Sub-Inspector Chander Pal, PP Bawana, PS Narela, Delhi.
Name and address of accused :1.Mohinder Singh, S/o. Sh. Hukum Chand, R/o. VPO Nangal Thakran, Delhi.
2.Tika Ram, S/o. Sh. Hukum Chand, R/o. H.No. 182, VPO Nangal Thakran, Delhi.
3.Lala Ram, S/o. Sh. Udaiveer Singh, R/o. VPO Nangal Thakran, Delhi.
4.Rishi Pal, S/o. Sh. Hukum Chand, R/o. H.No. 182, VPO Nangal Thakran, Delhi.
Offence complained of :160/186/353/34 IPC Plea of accused :Pleaded not guilty Date of order :05.02.2011 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
On 19.05.90 a complaint was made by one Sh. Ram Chander that some people are encroaching upon the Contd.../-FIR No. 110/90
PS Narela Page no.2 land of school at Nangal Thakran and upon this complaint, ASI Chander Pal alongwith Ct. Jasbir and Ct. Anil went to Govt. Boys Senior Secondary School by govt. vehicle and found that four persons were raising construction and ASI Chander Pal asked them to stop the construction and further asked them to show the documents of land upon which they all started to quarrel with police persons and they all in furtherance their common intention obstructed ASI Chander Pal, Ct. Anil Kumar and Ct. Jasbir Singh, the public servant in order to deter them from exercising their duties as a public servants and they all used criminal force and also committed affray and on the basis of the said allegations, the present FIR bearing no.110/90 was registered at Police station Narela and all accused persons have been charged with the offences under Section 160/186/353/34 Indian Penal Code (hereinafter called as IPC).
2. After investigation, charge sheet was filed against the accused persons. The copies of charge sheet were supplied to the accused persons in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) charge Under Section 160/186/353/34 IPC was framed against them vide order dated 08.12.93, to which they had pleaded not guilty and claimed trial.
Contd.../-
FIR No. 110/90PS Narela Page no.3
3. Thereafter, the prosecution was given opportunity to prove the accusation against the accused persons and accordingly, the prosecution has examined 16 witnesses out of 27 witnesses as mentioned in the list of witnesses.
4. PW 1 is Sh. Ram Chander, the public witness. He has deposed that on 19.05.90 at about 6.30 a.m./7.00 a.m., he went near the pond of the village and saw all accused persons were making construction there. He has further deposed that after seeing them, he returned to his house. He has further deposed that at about 7.45 a.m. Sh. Dhayan Singh, Principal came to him and told that he has instructions from the Director not to do construction work at the land of the school in holidays and requested him to visit police post upon which they went to police post and narrated the whole incident regarding the construction work which is carried out at the disputed land of school and requested them to get the work stopped. He has further deposed that they alongwith ASI Ram Chander and Ct. Jasbir Singh reached at the spot and noticed that all accused persons were doing construction there. He has further deposed that police had asked the accused persons to stop the work and show documents with respect to their ownership upon which they refused to stop the work and also refused to visit police post. He has further deposed that thereafter police had called for force upon which one police Contd.../-
FIR No. 110/90PS Narela Page no.4 jeep alongwith 4/5 persons reached at the spot and asked the accused persons to stop their work. He has further deposed that many persons were gathered there and police was surrounded by them. He has further deposed that when police officials were taking the accused persons to PS, family members of accused persons broke the wire of wireless of the motorcycle and jeep and pelted stones. He was cross examined by accused persons at length.
5. PW 2 is Sh. Sukhbir Singh, public witness. He has deposed that on the day of incident at about 9.00 a.m., some persons were illegally occupying the land of the school. He has further deposed that Professor Sh. Ram Chander has reported the same to the police, upon which police came at the spot. He has further deposed that he was taking his buffaloes to johar near the school and saw that some persons were quarrelling with the police. He has further deposed that accused persons namely Rishi Prakash, Mahender and Tika Ram alongwith other persons whom name he does not know were illegally occupying the land of the school. He was also cross examined by the accused persons at length.
6. PW 3 is Sh. Mahender Singh, another Public witness. He has deposed that around 4/5 years back, one day when he was returning from his fields, he saw police Contd.../-
FIR No. 110/90PS Narela Page no.5 near the school of the village. He has further deposed that suddenly an altercation took place in between the police and some villagers. He has deposed that he cannot say who were those persons. He has further deposed that he cannot say that accused persons were there or not.
7. PW 3 Sh. Rattan Singh, another public witness. (This witness be read as PW 3-A). He has deposed that on the day of the incident, at about 9.00 a.m., he heard about quarrelling at the side of school of the village upon which he reached there. He has further deposed that police was also present there. He has further deposed that he saw accused persons sitting in the vehicle of the police and they were taken to police station. He has deposed nothing else about this case. He was cross examined by accused persons.
8. PW 4 is Head Constable Manohar Lal. He has deposed that in the year 1990 he was posted at police post Bawana. He has further deposed that on 14.10.90, he has joined the investigation of present case alongwith Chowki Incharge SI Baldev Singh. He has further deposed that when they reached the village, one secret informer met them and informed that accused Rishi Prakash was not present in his house and had gone towards his fields. He has further deposed that they reached at the fields of accused Rishi Prakash, arrested him and brought to police chowki where Contd.../-
FIR No. 110/90PS Narela Page no.6 personal search of accused was conducted in his presence. He has further deposed that they lodged the accused behind the bars. He was cross examined by the accused.
9. PW 5 is Sh. Devender Kumar, Record clerk, Hindu Rao Hospital, Delhi. He has proved the MLC of injured Mahender Singh and Tikka Ram as Ex. PW 5/A & Ex. PW 5/B.
10. PW 6 is Lillu Ram, another public witness. He has deposed that in the year 1990, he alongwith Ramchander visited Principal of the school and made a complaint in the police chowki regarding illegally occupying the land of the Higher Secondary School by accused Mahender and Tikka. He has rightly identified the accused persons namely Tikka Ram and Mahender in the court. He has further deposed that SI Chander Pal and one constable reached at the spot on a motorcycle. He has further deposed that police restrained the accused persons from their illegally occupying the land of the school but both accused persons did not listen them and an altercation as well as pelting of stones took place. He has further deposed that SI Chander Pal sustained injuries in the said incident. He has further deposed that more police force was called at the spot. He has further deposed that Samundar Patwari showed the documents of the land to the police. He was also Contd.../-
FIR No. 110/90PS Narela Page no.7 cross examined by the accused persons.
11. PW 7 is Subh Ram, another public witness. He has deposed that in the year 1990, one day around 20/25 villagers of village Nangal Thakran were trying to illegally occupying the land of the school. He has further deposed that he does not know their names except of accused Mahender. He has further deposed that police was informed upon which they came at the spot and asked those persons to show the documentary proof of their ownership/claim on the land. He has further deposed that those persons became annoyed and started fighting with the police. He has further deposed that they started pelting stones, due to which two- three people had sustained injuries. He has further deposed that thereafter, he ran away from the spot alongwith other people. He was cross examined by the accused persons.
12. PW 8 is Sh. Satish Chander, public witness. This witness has deposed nothing about the case and he was turned as hostile. He was even cross examined by Ld. APP for the state but nothing could be extracted from his mouth.
13. PW 9 is Sh. Hari Singh, public witness. This witness has also not deposed anything about the case and also turned hostile. He was also cross examined by Ld. APP for the state but nothing could be extracted from his mouth.
Contd.../-
FIR No. 110/90PS Narela Page no.8
14. PW 10 is Constable Anil Kumar. He has deposed that on the day of incident, he alongwith ASI Chandra Pal and Ct. Jasbir Singh went to Girls Senior Secondary School, Nangal Thakran in a govt. vehicle no. DDW 6019 on the complaint of Sh. Ram Chandra. He has further deposed that they saw four persons were making boundary wall on the plot at the spot. He has further deposed that in the meanwhile, Sh. Ram Chander also reached there. He has further deposed that when ASI Chandra Pal Singh demanded papers regarding the plot from the accused persons, they became agitated and started quarrelling with Ram Chandra. He has further deposed that they also started throwing stones and bricks on them. He has further deposed that in the meantime, PCR van reached there. He has further deposed that accused persons also pelted stones on the van. He has further deposed that police staff of PCR van alongwith them apprehended all the accused persons while they were running away from the spot. He has further deposed that during the process of apprehending them, accused Mahinder and Tikka had received minor injuries. He has further deposed that ASI Chandra Pal Singh handed over rukka to Ct. Jasbir Singh, got the FIR registered, seized the bricks and instruments used for constructed wall, arrested them and their personal search was conducted.
Contd.../-
FIR No. 110/90PS Narela Page no.9
15. PW 11 is ASI Chandra Pal. He is the Investigating officer (IO) of the case. He has deposed that on the day of incident, in the morning Sh. Ram Chandra, member of Committee of Govt. Boys Senior Secondary School, Nangal Thakran made a complaint on the basis of the record of Halka Patwari Sh. Samundra Singh to the effect that some persons were trying to do unauthorized construction on the school land. He has further deposed that he sent Ct. Jasbir Singh and Ct. Anil Kumar to the spot on motorcycle, who went there. He has further deposed that they were threatened by accused persons and they returned back to police post. He has further deposed that he alongwith Ct. Jasbir Singh and Ct. Anil Kumar went to the spot. He has further deposed that in the meanwhile, Ram Chandra also reached there. He has further deposed that he ordered the accused persons to stop the work and show him papers regarding the plot, upon which accused persons became agitated and started quarrelling with Ram Chandra. He has further deposed that they tried to stop them upon which accused persons started pelting stones on them. He has further deposed that in the meanwhile, PCR van also reached there. He has further deposed that accused persons also started pelting stones on the PCR van. He has further deposed that they apprehended accused persons namely Mahinder Singh, Tikka Ram and Lala but accused Rishi was succeeded in running from the spot. He has further deposed Contd.../-
FIR No. 110/90PS Narela Page no.10 that ACP and SHO were also reached at the spot with available police force. He has further deposed regarding preparation of rukka, got the FIR registered, preparation of site plan, seizing case property, arrest of accused, their personal search and recording statement of witnesses. He has further deposed that accused Mahinder Singh and Tika Ram were got medically examined. He has further deposed that thereafter, he was transferred and he handed over the file to MHC(R).
16. PW 12 is Constable Rakesh Kumar. He has deposed that on the day of incident at about 8.30 a.m. an information regarding unauthorized possession was received, upon which he alongwith ASI Chander Pal went to the spot at Nangal Thakran and met accused Tikka Ram and Mahinder. He has further deposed that they were encourging unauthorized work on the school land. He has further deposed that accused persons were arrested and were sent for medical examination to HR hospital under his supervision and Constable Sant Ram. He has further deposed that he obtained the MLC of Mahinder Singh and Tikka Ram and handed over the same to ASI Chander Pal. He was also cross examined by the accused persons.
17. PW 13 is Sh. R.B. Tyagi, ACP. He was the then SHO of PS Narela. He has deposed that on 25.11.90 on the Contd.../-
FIR No. 110/90PS Narela Page no.11 basis of the FIR as briefed to him by the IO, he made a complaint U/s. 195 Cr.P.C. which is Ex. PW 13/A against four accused persons. He has further deposed that thereafter challan was prepared and filed in the court. He was not cross examined by the accused persons.
18. PW 14 is Sh. Baldev Singh, retired Inspector. He has deposed that in the month of October, 1990 further investigation of the present case was entrusted to him by the SHO upon which he arrested accused Raishi Pal on 14.10.90 and conducted his personal search. He has further deposed that challan was prepared by the SHO and filed in the court. He was cross examined by accused persons.
19. PW 15 is Inspector Veer Singh. He has deposed that on 22.05.90, he was posted as Incharge PP Bawana, PS Narela. He has deposed that on that day, case file of the present case was entrusted to him for further investigation, upon which he recorded statement of witnesses. He has further deposed that later on he collected the report from Halka Patwari regarding the status of the land. He has further deposed that he obtained non-bailable warrants of accused Rishi Pal, who was absconding. He has further deposed that thereafter, he was transferred and the file was handed over to MHC(R) for further investigation. He was not cross examined by accused persons.
Contd.../-
FIR No. 110/90PS Narela Page no.12
20. PW 16 is Sh. Karan Singh, public witness. He has deposed that around 9-10 years back, he reached at the spot i.e School, Nangal Thakran where police were present. He has further deposed that occurrence had already taken place and he does not know anything about the case. This witness was cross examined by Ld. APP for the state but nothing has been extracted from his mouth. He was not cross examined by the accused persons.
21. It is matter of record that despite being given final opportunities for concluding prosecution evidence vide orders dated 18.05.98 and 28.07.98, prosecution evidence was closed vide order dated 05.07.99.
22. Subsequent to the recording of statement of witnesses, statement of accused persons was recorded U/s. 281 Cr.P.C. and all the incriminating evidence coming on record was put to the accused persons in which they have submitted that they have been falsely implicated in the present case. They further stated that they wish to lead defence evidence and matter was fixed for defence evidence.
23. It is also matter of record that meanwhile, Ld. Counsel for accused persons has moved an application U/s. 311 Cr.P.C. for recalling witnesses PW 9 to PW 14, which Contd.../-
FIR No. 110/90PS Narela Page no.13 application was allowed vide order dated 30.07.99, subject to cost of Rs.200/- for each witnesses and the matter was again listed for prosecution evidence.
24. It is also matter of record that despite giving sufficient opportunities to examine the witnesses, prosecution evidence was again closed vide order dated 15.03.04 and the matter was fixed for recording statement of accused persons.
25. It is also matter of record that after observing that statement of accused persons have already been recorded, matter was kept for defence evidence and the accused persons have examined DW 1 Sh. Chhatar Singh in their defence.
26. After examining defence witness, defence evidence was closed vide separate statement and the matter was fixed for final arguments. It is matter of record that matter was again fixed for recalling PW 10, PW 11 and PW 12 on an application filed U/s. 311 Cr.P.C. and vide detailed order dated 05.05.08, said application was allowed and matter was fixed for prosecution evidence and PW 11 and PW 12 were cross examined on 28.07.08. Despite giving various opportunities vide order dated 06.02.09 and 06.07.09, prosecution evidence was again closed vide order dated Contd.../-
FIR No. 110/90PS Narela Page no.14 03.11.10 and it was observed that statement of accused persons were required to be framed again in a proper manner.
27. Thereafter, statement of accused persons have been recorded U/s. 313 Cr.P.C. in which accused persons have submitted that they are innocent. They further stated that they does not want to lead any other defence evidence and final arguments were heard.
28. I have heard Ld. APP for the state as well as Ld. Defence counsel. I have also perused the entire record.
29. In the present matter, accused persons have been charged U/s. 160/186/353/34 IPC and prosecution has to prove that accused persons have committed affray and obstructed the police officials (public servants) in order to deter them from exercising their duties as a public servant and also used criminal force against them.
30. During the course of arguments, it was vehemently argued by the Ld. Defence counsel that accused persons have been falsely implicated in the present case as they belong to scheduled caste / lower cast and a false case was registered against them under the influence of Sh. Ram Chander, who is a very influential person of the village. It Contd.../-
FIR No. 110/90PS Narela Page no.15 was further argued by the Ld. Defence counsel that Sh. Chattar Singh was a village pradhan at the relevant time and he allotted 287 residential plots of land to the residents of village belonging to different communities with the approval of S.D.M. Concerned and accused persons were allotted some plots and a subsidy of Rs.2,000 was also granted by Delhi Administration to Scheduled Caste allottees/accused persons for construction of their residential home and accordingly, accused persons were constructing the walls of their houses and they were not doing any illegal act and rather police at the behest of Sh. Ram Chander harassed the accused persons. It was further argued by the Ld. Defence counsel that accused persons had not used any criminal force against the police officials. It was further argued by the Ld. Defence counsel that cross examination of all material witnesses have been done in these lines and to support the case, accused persons had examined Sh. Chhattar Singh i.e village pradhan at the relevant time as DW 1.
31. Hence, in the background of the above facts, testimony of each witness requires careful scrutiny. Now, coming to the deposition of PW 1 which is very material one for the present case since as per the story of the prosecution, the present case was registered at the behest of PW 1 Ram Chander. Perusal of his testimony shows that he Contd.../-
FIR No. 110/90PS Narela Page no.16 has deposed that all accused persons were making construction on the disputed land of the school and he went to police station and requested the police to get the work stopped. It is pertinent to mention here that PW 1 himself is deposing that construction work is being carried out at the disputed land of the school. Further, he has deposed that police asked the accused persons to stop the work, but they refused to stop the work and they also refused to go to police station. Further, he has deposed that when police persons were trying to take the accused persons with them, many people gathered there and police was surrounded by them. He has further deposed that when police officials were taking the accused persons to police station, family members of accused persons broke wire of wireless of motorcycle and jeep and pelted stones. Hence, perusal of his testimony shows that he has nowhere deposed that accused persons have used any criminal force with police officials. He has only deposed that accused persons have refused to stop the work and refused to go with the police to police station. According to him, family members of accused persons pelted stones.
Further, this witnesses was cross examined by Ld. Defence counsel at length in which he has deposed that in the year 1987, the village pradhan i.e Sh. Chattar Singh had allotted 287 plots to scheduled castes people. At this juncture, it would be relevant to say that neither Contd.../-
FIR No. 110/90PS Narela Page no.17 complainant nor the accused persons have proved any document on record to show that the land in question belongs either to complainant or to accused persons. The bone of contention between the parties was relating to the ownership of the land. It was the duty of the prosecution to prove on record that land belongs to the school. Hence, by mere deposition of the complainant that accused persons refused to stop the work and refused to go with the police to police station, does not amount to any obstruction to police officials in discharging of their duties. Further, he has nowhere deposed that accused persons have used any criminal force. Hence, to my mind, the deposition made by the PW 1 is of no avail for the prosecution. Further, it is also important to note here that this is not a case against accused persons for trespassing into the land in question.
32. Now coming to the deposition of PW 2 i.e Sh. Sukhbir Singh, who has deposed that some persons were illegally occupying the land of the school upon which police came at the spot and he has further deposed that some persons were quarrelling with the police. He has further deposed that accused persons namely Rishi Prakash, Mahender and Tika Ram alongwith other persons whose name he does not know, illegally occupying the land of the school. Hence, perusal of his testimony shows that he has nowhere deposed that any accused persons have used any Contd.../-
FIR No. 110/90PS Narela Page no.18 criminal force or obstructed any police officials.
This witness was also cross examined by Ld. Defence counsel at length and suggestions were given that accused persons were not illegally occupying the land in question and the said land was allotted to them. This witness has not said anything against accused persons with respect to the fact that they obstructed the police officials or used any criminal force. Hence, in the present scenario the deposition of this witness is also of no avail to the prosecution.
33. Now, coming to the deposition of PW 3, who has deposed that one day when he was returning from his fields, he saw an altercation took place in between police and some villagers and he has further deposed that he cannot say who were those persons and cannot say whether accused persons were there or not. Hence, this witness has not supported the case of the prosecution. He has said nothing against the accused persons. Hence, testimony of this witness is also of no avail to the prosecution.
34. Now, coming to the testimony of PW 3-A Sh. Rattan Singh. This witness was inadvertently written as PW 3. He has deposed that he heard about quarrelling at the side of the school of the village upon which he reached there and saw accused persons were sitting in the vehicle of the police Contd.../-
FIR No. 110/90PS Narela Page no.19 and were taken to the police station. Hence, this witness has said nothing against accused persons and the testimony of this witness is also of no avail to the prosecution. Further, he is the witness of prosecution and he has deposed about the incident at the side of the school and he has not deposed that there was some dispute at the land of the school.
35. Now, coming to testimony of PW 4 who is a formal witness and he has deposed regarding the arrest of the accused Rishi Prakash.
36. PW 5 has only proved the MLC of accused Mahender and Tikka Ram.
37. Now, coming to the testimony of PW 6 Lilu Ram who has deposed that a complaint was made by Sh. Ram Chander regarding illegally occupying the land of the school by accused Mahender and Tika Ram. He has further deposed that SI Chander Pal and one constable reached on motorcycle at the spot and restrained accused persons from their illegally occupying the land of the school but both accused persons did not listen them and an altercation as well as pelting of stones took place and SI Chander Pal had sustained injuries in the said incident. According to the deposition of this witness, he has deposed that he alongwith Contd.../-
FIR No. 110/90PS Narela Page no.20 Ram Chander visited the Principal of the school and made a complaint in the police chowki. But, according to deposition of PW 1 who has deposed that that Sh. Dhyan Singh, Principal came to him and told that he has instructions from the Director not to do construction work at the land of the school and requested Ram Chander to visit the police upon which Ram Chander went to police post and narrated the whole incident regarding the construction work. Hence, both the version of PW 1 and of this witness are differing on this aspect. Further, this witness has not said anything against other two accused persons namely Rishi Prakash and Lala Ram. Further, perusal of his testimony shows that ASI Chander Pal and one constable reached at the spot on motorcycle. At this juncture, it would be relevant to point Ex. PW 11/B in which it is stated that ASI Chander Pal, Ct. Jasbir and Ct. Anil reached at the spot on govt. vehicle no. DDW-6019. Further, he has deposed that SI Chander Pal has sustained injuries. Further, perusal of testimony of PW 11 shows that he has nowhere deposed that he had sustained injuries. Further, perusal of testimony of PW 11 shows that he has nowhere discussed the name of Lilu Ram regarding the fact that Lilu Ram was present there. Further, perusal of testimony of PW 11 shows that he recorded the statement of witnesses Principal Dhyan Chand, Ram Chander, Ct. Anil, Ct. Jasbir, Rakesh Kumar and Ct. Sant Ram. He has nowhere deposed that he has recorded the Contd.../-
FIR No. 110/90PS Narela Page no.21 statement of witness Lilu Ram. If witness Lilu Ram was present at the spot, then why his statement was not recorded by PW 11. Further, PW 6 has nowhere deposed about other two accused persons. Further, testimony of this witness shows that he has deposed that a fight as well as pelting of stones took place. He has not specifically assigned any role to any accused persons and only deposed about the general allegations regarding pelting of stones. Hence, in view of the discussion made above, I am of the view that the deposition of PW 6 does not inspire confidence of the court. Hence, testimony of this witness is also of no avail to the prosecution.
38. Now, coming to the deposition of PW 7, who has deposed that some persons were trying to illegally occupying the land of the school and he knows only accused Mahender. He has only deposed that when police asked those persons to show documentary proof of the land, then those persons got annoyed and started fighting with the police. He has further deposed that they started pelting stones. He has not said anything against the accused persons qua the fact that all accused persons started pelting stones on the police. He has only deposed that the persons who were present got annoyed and started fighting with the police and started pelting stones. He has not specifically deposed anywhere that the accused persons were pelting Contd.../-
FIR No. 110/90PS Narela Page no.22 stones on the police. He has made a general allegations regarding pelting of stones. He has not named anybody by specifically stating that accused persons have obstructed the police officials and pelted stones upon them. Further, he has not deposed anywhere that police jeep/police van came there and same was damaged by the accused persons. Further, this witness was cross examined at length by the accused persons and in his cross examination, he has deposed that Ram Chander was present there who was himself pelting stones. Hence, testimony of this witness is also of no avail to the prosecution.
39. PW 8 Sh. Satish Chander has not supported the case of the prosecution. He has said nothing about the present case. He was even cross examined by Ld. APP for the state but nothing has been extracted from his mouth.
40. Now, coming to deposition of PW 9 Sh. Hari Singh, who has not deposed anything about the incident in question and has not supported the case of the prosecution. He was also cross examined by Ld. APP for the state but nothing has been extracted from his mouth.
41. Now, coming to the testimony of PW 10 Ct. Anil Kumar. It is matter of record that this witness was examined in chief on 13.02.97 but accused persons did not cross Contd.../-
FIR No. 110/90PS Narela Page no.23 examine him. It is also matter of record that an application U/s. 311 Cr.P.C. filed on behalf of accused persons, this witness was ordered to be recalled for his cross examination and despite giving various opportunities, this witness has never turned up for his cross examination. Hence, his testimony cannot be read in evidence and to this effect, Ld. Counsel for accused persons has relied upon the judgment titled as Mr. Ripen Kumar Vs. Department of Customs 2001 (1) JCC (Delhi) 47 passed by the Hon'ble High Court of Delhi .
42. Now, coming to the deposition of PW 11 ASI Chander Pal whose testimony also requires careful scrutiny. He has deposed that a complaint was made by Sh. Ram Chander and accordingly, he sent Ct. Jasbir and Ct. Anil to Govt. school and saw raising of boundary wall on the plot near the pond and they were threatened by accused persons and came back to PS and reported the matter to him and accordingly, he went back with them at the spot and meanwhile, Ram Chander also came there and when he ordered them to stop work and show papers regarding the plot, they became agitated started quarrelling with Ram Chander and when he tried to stop them, they started throwing stones on them. At this juncture, it would be relevant to go through the testimony of PW 1, wherein he has deposed that when he went to police, ASI Chander Pal Contd.../-
FIR No. 110/90PS Narela Page no.24 and Ct. Jasbir came with him at the spot. But, according to PW 11, on the complaint he sent Ct. Jasbir and Ct. Anil to the spot. Hence, there is material contradiction with regard to testimony of PW 1 as well as PW 11. Further, PW 1 has not named Ct. Anil regarding the fact that he has also accompanied them. However, PW 11 is deposing that Ct. Jasbir and Ct. Anil firstly went to the spot. According to PW 11, Ram Chander was not with them when they were going to the spot but according to PW 1, ASI Chander Pal and Ct. Jasbir came at the disputed spot alongwith him. Further according to PW 11, accused persons became agitated and started throwing stones on them. However as per deposition of PW 1, when accused persons were sitting in the police jeep, family members of accused persons have broken the wires of motorcycle and jeep of the police and also started throwing stones on them. Further, as per deposition of PW 11, ACP Sh. S.B. S. Tyagi and SHO Sh. Raj Bahadur Tyagi were also reached at the spot with available police post. But perusal of testimony of Sh. R.B. Tyagi i.e PW 13 shows that he has only deposed about the complaint U/s. 195 Cr.P.C. He has not deposed a single word with regard to the incident in question. Further, PW 11 has not deposed anywhere that he received any injury in the present incident. According to deposition of PW 6, ASI Chander Pal has sustained injuries. Further, as per rukka Ex. PW 11/B wherein it is stated that he alongwith Ct. Anil and Ct. Jasbir went to the spot and in Contd.../-
FIR No. 110/90PS Narela Page no.25 his examination-in-chief, he has specifically deposed that he sent Ct. Jasbir and Ct. Anil to the spot. Further, neither Ct. Jasbir was examined in the present case despite being given various opportunities and despite long journey of trial nor as discussed above, the testimony of Ct. Anil i.e PW 10 can be read in evidence. In view of the discussion made above and in the absence of corroboration of this witness and material contradictions as discussed above, the testimony of this witness is also of no avail to the prosecution.
43. Now, coming to the testimony of PW 12 Ct. Rakesh, who has deposed totally different version before the court and according to his testimony, he alongwith ASI Chander Pal went to the spot where they met accused Tika and Mahender. Further, he has only deposed that both were encroaching unauthorized work on the school land and they were arrested and they were sent for medical examination. He has nowhere deposed about other two accused persons. Further, he has not deposed about any obstruction as well as pelting of stones. According to him, he alongwith ASI Chander Pal went to the spot. He has nowhere deposed about Ct. Jasbir, Ct. Anil and Ram Chander. Hence, this witness has totally demolished the case of the prosecution.
44. Now, coming to the testimony of PW 11 Sh. R.B. Tyagi, ACP who was the then SHO of PS Narela. He has only Contd.../-
FIR No. 110/90PS Narela Page no.26 deposed that he made a complaint U/s. 195 Cr.P.C. Ex. PW 13/A against four accused persons.
45. PW 14 Sh. Baldev Singh (reitred) Inspector is a formal witness and has deposed regarding the arrest of accused Rishi Pal.
46. PW 15 Insp. Veer Singh a formal witness and has conducted further investigation of the present case. He has only collected the report from Ilaka Patwari regarding the status of the land which is Ex. PW 15/A. It is pertinent to mention here that PW 15 is not the author of Ex. PW 15/A and by mere exhibiting the report as Ex. PW 15/A, it cannot be read in evidence as it has not been proved in accordance with law.
47. PW 16 Sh. Karan Singh who has also not deposed anything about the present case and has only deposed that when he reached at the spot i.e the school, Nagal Thakran, occurrence had already taken place. He was even cross examined by Ld. APP for the state but nothing has been extracted from his mouth. He has not supported the case of the prosecution.
48. No other witness was examined by the prosecution despite various opportunities Contd.../-
FIR No. 110/90PS Narela Page no.27
49. Further besides above, there are various lacunas in the present case which are required to be discussed. According to the prosecution, the accused persons had pelted stones on the PCR van. If it had been a case, then van should have been damaged or its windowpanes would have been smashed. But nothing of this sort has been proved on record. Neither photographs were taken nor any case property was produced before the court. It is pertinent to mention here that IO should have taken the photographs of the van or jeep/motorcycle. Further as per the testimony of PW 1, wire of wireless of motorcycle of police was broken but said wireless was also not produced before the court. Further as per the cross examination of PW 11, uniform of police officials was torn in the aforesaid incident but no uniform was produced in the court.
50. Further, it is the case of the prosecution that accused persons were raising construction on the land of the school. But neither any document has been proved on record to show that land in question belongs to school nor khasra number of the land has been given. It is the duty of the prosecution to prove on record that the land in question belongs to school. From the beginning, the accused persons are taking plea in cross examination as well as by giving witness as DW 1 that land in question belongs to them and Contd.../-
FIR No. 110/90PS Narela Page no.28 they were not doing any unauthorized construction there. Even though, accused persons have also not proved on record any document on record that land in question belongs to them. However, in support of their version, they have examined DW 1 who has deposed that in the year 1990, there was some quarrel regarding piece of land belonged to Gram Sabha. He has further deposed that some plots were being allotted to weaker section/backward classes of the village under the 20 point Programme, which scheme was implemented by the SDM of the area. He has further deposed that he knew Ram Chander, resident of Nangal Thakran. He has further deposed that Ram Chander had complained against accused persons in the police as he wanted to grab the land allotted to the accused persons. He has further deposed that accused persons had not pelted stones on the police. He has further deposed that accused persons were constructing on the land allotted to them. He has further deposed that police had caused beatings to accused Tika Ram and Mahender. He was cross examined by Ld. APP for the state. Hence, according to his deposition, accused persons were constructing on the land allotted to them and they had not pelted stones on the police.
At this juncture, it would be relevant to refer judgment titled as Raj Singh Vs. State (N.C.T. Of Delhi) Crl. Rev. P. 365/2007 which is very important in facts and circumstances of the case. Para no. 11 of the said judgment Contd.../-
FIR No. 110/90PS Narela Page no.29 is very relevant.
11. A different yardstick cannot be put for determining the credibility of a defence witness and in the absence of any cogent and convicting reason, the testimony of defence witnesses is not to be rejected as held in Nayudu Srihari V. State of A.P. (1996) 10 SCC
393. The prosecution has been unable in the present case to cast any doubt on the veracity of the deposition of the defence witnesses and there was no reason for the trial courts to summarily reject the same. The mere fact that these witnesses were coming before the court for the first time cannot be a good ground to reject their depositions.
51. Perusal of the aforesaid judgment shows that the prosecution witnesses as well as defence witness are on the same footing and different yardstick cannot be put for determining the credibility of the defence witnesses. At this stage, it would be relvant to mention judgment titled as Allrakha K. Mansuri Vs. State of Gujrat 2002 (1) CR (Cr.P.C.) 748 (c) wherein it is held that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, the pointing to guilt of the accused and the other to innocence, the view which is favourable to accused should be adopted. The paramount consideration of the court should be to avoid miscarriage of justice.
52. In the present case also neither of parties have Contd.../-
FIR No. 110/90PS Narela Page no.30 proved any document on record with regard to land in question and both sides have given oral version to this effect and hence, in the absence of any proved document on record, it gives some suspicion in the mind of the court with regard to ownership of the land and which gives doubt in the story of the prosecution. Hence, in view of the discussion made hereinabove paras, if it is presumed that accused persons were constructing in the property in question then, they have every right to protect their land and in these circumstances, if police reached at the spot then to my mind, the accused persons have every right to show reasonable resistance with the police when police asked them to stop the work and hence it cannot be said that by doing so, accused persons have obstructed any police officials or used criminal force against the police officials.
53. Further, accused persons have also been charged with Section 160 of IPC which would clearly indicate that in order to bring home the guilt of the accused persons for an offence of affray, the prosecution will have to prove that accused persons were fighting in a public place and by such fighting, they disturbed the public peace. But as discussed above, the prosecution has failed to prove any document on record that it was a public land and in such scenario to my mind, accused persons cannot be convicted for the offence punishable under Section 160 IPC.
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FIR No. 110/90PS Narela Page no.31
54. In view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused persons, beyond reasonable doubt. Accordingly, all accused persons are acquitted of the said offences.
Deepak Wason Metropolitan Magistrate Rohini Court, Delhi Announced in open court today i.e 05th February, 2011.
Contd.../-