Delhi District Court
State vs . Bhola Nath Babbar Etc. on 20 May, 2015
IN THE COURT OF MS. SHUNALI GUPTA,
ADDL. CHIEF METROPOLITAN MAGISTRATE (NORTH),
ROHINI COURTS, DELHI
FIR No. 439/01
Unique Case ID No. 02401R0799052003
Police Station Mukherjee Nagar
Under Section 186/353/332/342/34 IPC
State Vs. Bhola Nath Babbar etc.
JUDGEMENT
(a) Sr. no. of case 178/03 (b) Date of offence 03.09.2001 (c) Complainant SI Anil Kumar
(d) Accused 1. Bhola Nath Babbar S/o Ram Rakha
2. Raj Babbar S/o Bhola Nath
3. Gulshan Babbar S/o Bhola Nath All R/o H. No. H16, Hudson Line, Delhi
(e) Offence 186/353/332/341/34 IPC
(f) Plea of accused Pleaded not guilty
(g) Final order Acquitted
(h) Date of institution 05.12.2004
(i) Date when judgment 18.05.2015 was reserved
(j) Date of judgment 20.05.2015 FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 1 of 14 PS Mukherjee Nagar BRIEF STATEMENT OF THE REASONS FOR DECISION
1. At the outset, I may state that this particular case is a glaring example of misuse of the statutory powers by police authorities particularly, the SHO who is enjoined with the power to register FIR in cases, where cognizable offence is disclosed. Their high handedness is apparent as the FIR has been registered despite the fact that the contents of the same were false to their knowledge or contrary to the actual, most probable state of facts which reflects their callousness and insensitivity towards the rights of common citizen particularly the right to life and liberty which has been infracted /jeopardized and violated with impunity.
2. The obvious result of the entire exercise is that the state has not lost anything in prosecuting the case throughout whereas the accused persons were made to suffer an unnecessary long drawn trial whose travails are well known to one and all. It also underlines the fact that registration of cases particularly U/s 186/353/332/34 IPC should always be monitored by Senior Police Officials who should also own up the responsibility, in the event if police version is found to be false.
A small caveat here that a false case does not mean one wherein benefit of doubt is given to the accused or FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 2 of 14 PS Mukherjee Nagar prosecution is not able to prove the case for any reason whatsoever.
3. Facts of the present case and reasons for so concluding are as under:
(i) Accused Sunil Babbar, Raj Babbar and Gulshan Babbar stood trial for the offence(s) U/s 186/341/342/332/353/34 IPC.
(ii) Prosecution case commenced upon a 'tehrir' Ex.PW2/A got recorded by SI Anil Kumar. Gist whereof is as under: "Today, I was on duty at PS Mukherjee Nagar and my duty hours were from 8:00 PM. At around 8:25 PM, Duty Officer handed over me DD No.27A and in pursuance of the same, I alongwith SI Chunni Lal were going to the spot but at the same time, Duty Officer had informed us that another call vide DD No.28A had received via telephone regarding dire consequence. I alongwith SI Chunni Lal accordingly reached at RBTB Hospital where complainant Susheel Ahuja S/o Shri Hansraj R/o 428, Parmanand Colony, Delhi met us and told me that he had received a call regarding dire consequences. Complainant alongwith Anil Walia was present at the above said hospital. I recorded the statement of Susheel Ahuja.
Thereafter, I alongwith the complainant and his friend left for house no.H16, Hudson Line, Mukherjee Nagar. When we reached near Krishna Restaurant, two boys were standing whom the complainant pointed out as the accused. On being question, accused Gulshan Babbar went inside his house to call PCR and then again came out of his house along with his parents and wife and started hurling abuses. Further, accused Raj Babbar and Bhola Nath Babbar apprehended me and took me inside FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 3 of 14 PS Mukherjee Nagar their house. Sushil Ahuja and Anil Walia were trying to escape from the spot, but Gulshan Babbar and his accomplice apprehended them also, they took them inside the house and gave beatings to all three of us (i.e. Susheel Ahuja, Anil Walia and SI Anil). Accused persons had caught hold of my uniform, pulled out the buttons of the uniform and gave me kicks and punch blows. In the meantime, the SHO also reached at the spot and accused Bhola Nath Babbar, who was under the influence of liquor, abused him also. Necessary action as per law be taken against them".
(iii) Endorsement Ex.PW4/A was made by First IO/ SI Mange Ram, who prepared the 'rukka' and got the FIR Ex.PW1/A registered through Ct. Vinod Kumar.
4. Pertinent to note herein that SI Anil Kumar, as mentioned was investigating DD no. 27A when he was informed of DD no. 28A with regard to the dispute telephonically and the next DD No.29A was the call regarding the incident in question. The point to be emphasized is that DD No. 28A and 29A are contemporaneous to each other, which warrants a minute scrutiny about the genuineness of the same.
I have carefully gone through the file. DD no. 28 A is Ex.PW6/A. It is a call at around 8.35 PM which was got recorded by W/Ct. Kamla with regard to the fact that near Kingsway Camp two persons were threatening one person on his mobile no. 9811318877 and police force be sent. This DD FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 4 of 14 PS Mukherjee Nagar was assigned to SI Anil 'akab' DD No.28A. The next DD no. 29A was recorded at 9.50 PM with regard to the incident in question, which happened at H 16, Hudson Line, Mukherjee Nagar. The DD was recorded by ASI Kanhaiya Lal from PCR.
5. The investigation commenced and concluded upon the filing of chargesheet for offence(s) U/s 186/341/342/332/353/34 IPC.
Vide order dated 06.05.2002 charge was framed by my Ld. Predecessor. Accused person opted to contest the same.
6. Prosecution has examined 10 witnesses. They are as follows: PW1 HC Ganesh Narayan is the duty officer, who had got the FIR registered, which is Ex.PW1/A. PW2 SI Anil Kumar is the complainant.
PW3 SI Bhagwan Dass is the subsequent IO of the case. PW4 SI Mange Ram is the initial IO of the case. PW5 D.K.Sharma is a record clerk of HR Hospital, who has proved the MLC of the accused as well as complainant Ex.PW5/A, Ex.PW5/B and Ex.PW5/C. He approved the signature of Dr. Devender Bakshi and Dr. Abhyant Gupta who had left the hospital.
PW6 HC Govind Singh is the DD writer, who recorded DD FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 5 of 14 PS Mukherjee Nagar No. 28A and 29A. PW7 is HC Sehdev Kumar, who had accompanied SI Bhagwan Dass in investigation.
PW8 Raheshwar Kumar is the then SHO, PS Mukherjee Nagar.
PW9 is Ct. Binod Kumar who accompanied SI Mange to the place of occurrence/accompanied the initial IO. PW10 Anil Kumar Ahuja was the then Addl. DCP N/W who had filed the complaint u/s 195 Cr. PC for taking cognizance of the offence u/s 186 IPC. The testimony of the witnesses is discussed in detail in subsequent paragraph(s). Prosecution Evidence was closed.
7. Statement of accused persons u/s 313 Cr. PC was recorded wherein the entire incriminating evidence was put to the accused persons, which they denied and took the plea of false implication.
8. In defence accused Gulshan Babbar had examined himself as DW1 after obtaining permission 315 Cr.PC. DE was closed.
9. Heard Ld. APP for the State and Ld. Counsel for the accused and perused the record.
10. Pertinent to note herein that in the list of witnesses, both the witnesses namely Sunil Ahuja and Anil Walia were cited as residents of H.No.438, Parmanand Colony, Mukherjee Nagar, FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 6 of 14 PS Mukherjee Nagar Delhi. Both were untraceable. They were attempted to be served many a times but the report always was that no one by the said name ever resided at house no. 438, Parmanand Colony. The owner of the house no. 438 was one Mr. Gulshan Kumar. Vis a vis this aspect about the incorrect address/wrong address furnished by the IO/witnesses and the chargesheet having been filed without verification of addresses, a detailed order was passed by my Ld. Predecessor on 20.04.04. The same is as under :
"Public witnesses Sunil Ahuja and Anil Walia have been received back with the report that these witnesses are not traceable at the given address. It is the duty of the IO to file the chargesheet after due verification of the witnesses and inaccordance with law which has not been made by the IO. Indulgence of the DCP (North West) is sought to look into the matter as to how the address of the above said witnesses have been wrongly filed as listed in the chargesheet and report be filed in this respect. The then SHO be summoned on show cause as to how the case has been filed without verifying the address of the witnesses."
All efforts were made to serve them through the SHO, through the IO and through the DCP. However, the report was consistent that they were not residing on the given address. A doubt arises about their correct addresses as well as the motive of furnishing an incorrect address by them or FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 7 of 14 PS Mukherjee Nagar falsely recorded by the Investigating Officer.
11. As stated above, DD No. 28A, was not got recorded by either Sunil Ahuja or Anil Walia though they were the persons to whom threats were extended. The DD was lodged by the PCR. The said persons also did not visit the Police Station. The complainant/ PW2 SI Anil has also stated in the 'tehrir' that Susheel Ahuja met him near RBTB Hospital and informed him that he is the person to whom threats were extended by the accused persons. He had a money dispute with the accused persons. He also stated that Anil Walia was present alongwtith him. Ahuja got his statement recorded. Now his statement which has been placed on record though not proved makes an interesting reading. First of all, it is by 'Susheel Ahuja' and not 'Sunil Ahuja'. This fact the IO had glossed over and had filed the charge sheet citing name of Sunil Ahuja in the list of witnesses. Thus, the IO in haste or for oblivious reasons had not even properly inquired about the name of the complainant (Ahuja) lest to say about his address which speaks of the investigation done. In the statement he had stated that on 02.09.2001 he had money transaction with accused Raj Babbar and Rajesh. He had given Rs.15,000/ to Raj Babbar informing him that he would be requiring the same on 03.09.2001 latest by 12.30 PM. Today at 1 PM they FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 8 of 14 PS Mukherjee Nagar had telephoned him and informed that they won't return the money and if he persist with the demand he would have to face dire consequences. They also extended threats to kill. He therefore, called police at 100 number. This statement bears the signature of Susheel Ahuja September 03, 2001.
Apparently, it is petty money dispute. The story also propounded does not have any zing of truth money extended for one day and upon demand threats of dire consequences were extended and subsequently a brawl took place when they had come face to face. It probablizes that there was some other story which was concealed by the prosecution/ never surfaced.
12. The said Susheel /Sunil Ahuja and Anil Walia were never examined and that may be one of the reason as to why they were not examined in as much as lest the true facts come on record. Secondly, the statement also appears to be recorded subsequently as the place where Susheel Ahuja had put his signatures and manner whereof reveals that most probably he had signed on blank paper which was subsequently converted into a signed statement.
13. The reason for so concluding is that Susheel Ahuja and Anil Walia both had absconded from the hospital on 03.09.2001 in the night itself, after they were medically examined in the FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 9 of 14 PS Mukherjee Nagar hospital. Susheel Ahuja had received six injuries where as Anil Walia had also received injuries on his arms and knees. It does not appeal to reason as to why despite such severe injuries they would abscond from the hospital. Thus, serious doubt exist with regard to the said statement so given by Susheel Ahuja.
14. Now coming to the role of PW3 SI Bhagwan Dass, the IO. He had recorded the statement of Susheel Ahuja and Anil Walia u/s 161 Cr. PC on 04.09.2001. Both of them had absconded from the hospital on 03.09.2001. They were having serious injuries. PW3 SI Bhagwan Dass - the second IO had deposed that he had gone to the place of incidence - H16, Hudson Line where he met SI Mange Ram, SI Anil Kumar, Anil Walia and Sushil Ahuja. He prepared the site plan Ex. PW3/A at the instance of SI Mange Ram. I fail to understand as to what role did SI Mange Ram had in reference to the incident which caused the IO to prepare the site plan at his instance. More importantly when the victims and complainant were with him. He has chosen not to get their signature on the site plan to authenticate the same and to ensure their presence. The only conclusion is that Susheel Ahuja and Anil Walia were not present on 04.09.2001 and their purported statements u/s 161 Cr. PC are totally false.
FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 10 of 14 PS Mukherjee Nagar
15. IO had also not taken step to verify the fact as to whether Sunil/Susheel Ahuja was having mobile phone no.9811318877 or as to any exchange of calls between him and the accused as alleged by him. He has chosen to just skip all these facts and only concentrated on the aspect of the incidenti.e brawl on 03.09.2001.
16. Reverting to the testimony PW2 SI Anil the star witness of the prosecution. During his cross examination he deposed that there was a written complaint against the accused persons made by Susheel Ahuja dated 03.09.2001. Only thereafter DD No. 28A was recorded. He improved/corrected himself in the subsequent line and stated that he had first received DD No 28A and had subsequently recorded the statement. These two contradictory statements clearly expose the true and correct facts which the police authorities were trying to mask under their concocted/planted case. Most probable fact is that Ahuja and Walia were present in the police station which was also near to RBTB Hospital. Human conduct also probablize that in event of any threat first of all the person goes to the Police Station in as much as it was not communicated to them as to the name of the police officer who would be looking for them in reference to their DD entry. The prosecution story in this regard appears to be a bull and FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 11 of 14 PS Mukherjee Nagar cock story that SI Anil saw them or met them. We are living in a world where each one of us has a mobile telephone number.
17. Now coming to the testimony of PW 10, Addl. Commissioner of Police. He had filed a complaint Ex. PW10/A for taking cognizance in respect of the offence u/s 186 IPC. The incident was dated 03.09.2001. In the complaint it is stated that the incident occurred between the intervening night of 04.09.2001 and 05.09.01. From the said, it is evident that Higher Authorities were mislead /incorrectly informed with regard to the incident.
18. The testimony of PW2 and DW1 points out to the fact about there being exchange of blows /fight between the parties. The MLCs are also in consonance with the same. But the moot point is that the same is not the prosecution version. Rather they have harped on the fact that PW2 was obstructed in discharge of his duties which version stands discredited to the core. The incident in all probability which erupted at the spot and entangled SI Anil Kumar who was present there but without any legal backing and had suffered injuries and the fact that the matter had taken an ugly turn is the prominent cause for registration of FIR.
19. In view of the aforesaid discussion, the prosecution story is FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 12 of 14 PS Mukherjee Nagar altogether a false web with a view to entrap the accused persons. They are accordingly acquitted of the charges. Bail bonds are cancelled. Sureties are discharged. They should file the fresh bail bonds U/s 437A Cr.PC within three days from today.
20. However, I am not leaving the matter herein. It is a case where departmental inquiry should be initiated against the delinquent officials namely SI Anil, SI Mange Ram, SI Bhagwan Dass and the then SHO also to unearth the real motive which impelled SI Anil Kumar to go to the house of accused persons.
(ii) It also needs to be probed as to whether DD No.28B was a false one or deliberately got planted by the above said delinquents.
(iii) The reasons as to why the incorrect address of Susheel Ahuja and Anil Walia were falsely given and why the Investigating Officers did not at all inquire from them and rather coined a false 161 Cr.PC statement.
(iv) Why PW10 Additional DCP Anil Kumar was not correctly informed about the incident i.e. the date of the incident. And lastly efforts should be made to search the correct addresses of Susheel and Anil Walia.
21. The result of the departmental inquiry should be FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 13 of 14 PS Mukherjee Nagar communicated to this court within two months from today. A copy of the order be sent to Commissioner of Police as well as to the DCP (North West).
22. The accused have a separate right to seek damages. Apart thereof complainant/ SI Anil Kumar is slammed with the fine of Rs.3,000/ (Rs.1,000/ to each accused) in accordance with section 358 Cr.PC. Fine be deducted from his salary and remitted within two months from today.
Announced in the open Court (SHUNALI GUPTA)
on 20.05.2015 ACMM: North District:
Delhi
FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 14 of 14
PS Mukherjee Nagar
FIR No. 439/01
PS Mukherjee Nagar
20.5.2015
Present: Ld. APP for the state.
All the three accused in person.
Vide separate judgment of even date, all the three accused persons are acquitted for the offences punishable u/s 186/341/342/332/353/34 IPC. SI Anil Kumar has been slammed with a fine of Rs.3,000/, out of which Rs.1,000/ each is to be paid to the three accused persons. The said amount is to be deducted from the salary of SI Anil Kumar and remitted to the court within two months from today. Further, departmental inquiry be initiated against the delinquent officials, namely, SI Anil, SI Mange Ram, SI Bhagwan Dass and the then SHO.
A copy of this order be sent immediately to Commissioner of Police as well as to DCP, Northwest. Result of departmental inquiry be communicated to this court within two months from today.
File be consigned to R/R. (Shunali Gupta) ACMM (North): Rohini 20.5.2015 FIR No. 439/2001 State Vs. Bhola Nath Babbar etc. Page 15 of 14 PS Mukherjee Nagar