Delhi District Court
3. Title Of The Case : State vs Jitender Vishwakarma on 12 October, 2012
IN THE COURT OF SH. MANISH YADUVANSHI: ACMM-01 (CENTRAL):
TIS HAZARI COURTS, DELHI.
1. Case No : : 0428/P
2. Unique I.D. No. : 02401R0159582006
3. Title of the Case : State Vs Jitender Vishwakarma
FIR No.: 649/2005
PS : PAHAR GANJ
U/S: 292 IPC
4. Date of Institution : 28.02.2006
5. Date of reserving judgment : 12-10-2012
6. Date of Pronouncement : 12-10-2012
JUDGEMENT :
a) The Sl. No. of the case : 0428/P
b) The date of commission of offence : 25.12.2005
c) The name of complainant : HC Roop Kishore
PS PAHARGANJ
d) The name of accused : Jitender Vishwakarma
S/o Gyani Vishwakarma
R/o A-34, Gali No. 7, Shastri Park,
Delhi
e) The offence complained of : U/s 292 IPC
f) The offence charged with : U/s 292 IPC
g) The plea of accused : Pleaded not guilty.
h) The final order : Acquitted
FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 1 of 8
i) The date of such order : 12-10-2012
j) Brief facts of the decision of the case: -
1. It is alleged against the accused that on 25.12.2005 at about 06.25 PM at CF Road, Near 'pul', Paharganj, Delhi, he was found in possession of 25 obscene books with the reason to believe that the books were for sale. On the said date, Ct. Raj Singh (PW-3) and HC Roop Kishore (PW-2) were on patrolling duty. At 06.10 PM, HC Roop Kishore (PW-2) received secret information to the afore-stated effect. The raiding party was prepared. Public persons could not be joined as they refused. At 06.25 PM, the accused was apprehended at the instance of secret informer. He was carrying polythene bag which was found containing 25 obscene books. The same were sealed with the seal of 'RK'. Ct. Raj Singh (PW-3) was sent to police station for registration of the case. After conclusion of the investigation, charge sheet was prepared and filed in the court.
2. On the basis of record, a charge for commission of offence punishable U/s 292 IPC was read out to the accused Jitender Vishwakarma on 20.02.2007 who pleaded not guilty and claimed trial. Copy of the charge sheet was supplied to the accused.
3. The prosecution has furnished a list of four witnesses including the MHC(M), out of which, only three witnesses were examined. HC Jawahar Lal/PW-1 is the Duty Officer. HC Roop Kishore (PW-2) is the IO. Ct. Raj Singh is PW-3. The concerned MHC (M) was not examined by the prosecution.
4. After conclusion of the prosecution's evidence, the incriminating evidence was FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 2 of 8 explained to the accused Jitender Vishwakarma in his statement U/s 281 Cr.P.C read with U/s 311 Cr.P.C. The accused stated that he was falsely implicated in this case and no books were recovered from his possession. He further stated that the obscene books were planted upon him by the police officials. No DE was lead by the accused.
5. I have heard Sh. Ghanshyam Srivastava, Ld. APP for State, Sh. Om Vir Singh, Ld. Counsel for the accused and perused the record carefully.
6. PW-2 admits that no notice was served to the public persons who refused to join the raiding party. There is sufficient gap between the receipt of secret information and the apprehension of the accused. Despite afore-sated, no genuine steps are seen to have been taken by PW-2 in respect of joining public witnesses.
7. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
In case of "PREM SINGH VS. STATE" 1996 CRI. L. 3604 (DELHI) and in case of "PAWAN KUMAR VS. DLEHI ADMN" 1989 CRLJ 0127 DEL, it has been observed as under:-
"Kalam Singh has to admit that at the time of arrest and recovery of 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 Kalan Singh, no public person was present there. It hardly stands to reason that at FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 3 of 8 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 explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of 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".
8. In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, 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 FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 4 of 8 was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given 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 the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
9. In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 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 scrutinized with more care and caution".
10. 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 FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 5 of 8 to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public persons 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 07.30 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 t contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts 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 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".
11. In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC 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 FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 6 of 8 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 aspect of the case has not been properly appreciated by the Court below."
12. 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 party of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
13. 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 nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
14. The secret information in the present case was not reduced in writing nor shared with senior officials.
15. Further, as per PW-2, the sealed pullanda was sealed with the seal of 'RK', however, the pullanda when produced in the court was found sealed with the different seal of A/P or A/R. The court observed that letter written after the slash was not clearly visible. The MHC (M) was not examined. Thus, different seal was found on the pullanda than the one which was actually affixed. There is possibility of FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 7 of 8 tampering with the seal. Thus, the link evidence in the present case is incomplete.
16. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Harayana High Court wherein it was observed as under:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go the accused".
17. In the result, it is held that the prosecution has been unable to prove its case against the accused beyond all reasonable doubts and therefore the accused is accordingly acquitted of the charge U/s 292 IPC. His Personal Bond/Surety Bond is extended for further period of six months in compliance of Section 437-A Cr.P.C.
File be consigned to Record Room.
Announced in the open court on 12th October 2012.
(MANISH YADUVANSHI) ACMM (CENTRAL-01)/DELHI It is certified that this judgment contains 09 (nine) pages and each page bears my signatures.
(MANISH YADUVANSHI) ACMM (CENTRAL-01) DELHI FIR No. 649 of 2005 State Vs Jitender Vishwakarma Page No. 8 of 8