Delhi District Court
Jitender Mahajan And Ors vs State (Nct Of Delhi) on 3 August, 2024
IN THE COURT OF SH. RAKESH SYAL,
SPECIAL JUDGE, P.C. ACT, CBI-23, (MPs/MLAs Cases)
RACC, NEW DELHI
CA No. 03/2024
CNR No. DLCT11-000297/2024
1. Jitender Mahajan
S/o Sh. K.K. Mahajan,
aged about 54 years,
R/o 1/7049, Gali No. 5,
Shivaji Park, Shahdara,
Delhi-110032.
2. Dharamvir Singh
C/o Ram Karan Singh,
aged about 57 years,
R/o 1/6507, East Rohtash Nagar,
Shahdara, North East Delhi,
Delhi-110032.
3. Kusum Tomar
W/o Sh. Dharmender Kumar,
aged about 53 years,
R/o 1/7785, Gali No. 1, East Gorakh Park,
Shahdara, Delhi-110032. ..... Appellants
vs.
State of NCT of Delhi
Through APP (Sessions)
Rouse Avenue District Court,
New Delhi. .... Respondent
Date of filing of Appeal : 05.04.2024
Date of Arguments : 30.07.2024
Date of Judgment : 03.08.2024
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 1/26
JUDGMENT
1.1 This judgment shall decide criminal appeal u/s 374 (3) Cr.P.C., filed by the appellants Jitender Mahajan, Dharamvir Singh @ Dharamveer Nagar and Kusum Tomar (accused nos. 1, 3, and 4, respectively, before the Ld. Trial Court) against judgment dated 14.12.2023, and order on sentence dated 27.02.2024, vide which the appellants were convicted for commission of offences punishable under Sections 341/342/34 IPC, and sentenced as under:-
"Thus, keeping in view the totality of circumstances including the nature of the offence(s), the manner of its commission, the Victim Impact Report filed by the DLSA and statement of the victims, the convicts Jitender Mahajan; Dharamveer Nagar and Kusum Tomar are sentenced to pay a fine of Rs. 1,000/- (Rupees One Thousand only) each for the offence u/s 342 IPC and to pay a fine of Rs. 500/- (Rupees Five Hundred only) each for the offence u/s 341 IPC, to be deposited with the State.
In default of payment of fine, the convicts shall undergo simple imprisonment for a period of 14 (fourteen) days for the offence u/s 342 IPC and for a period of 7 (seven) days for the offence u/s 341 IPC, which shall run consecutively.
Further, for defraying the expenses of the prosecution, convicts are also directed to pay a total sum of Rs. 4,770/- (Rupees Four Thousand Seven Hundred and Seventy only). Same be paid within 30 days.
Fine and prosecution expenses stand paid. Sentence served."
2.1 The facts leading to filing of this appeal are that on 18.11.2021, on receipt of DD No. 82 A, ASI Manohar Singh, along with Ct. Naveen, went to the spot at Wine Shop, 1/5003, Loni Road, Balbir Nagar Extn., Shahadara, Delhi, where they met complainant Sh. Sansar Chand, who gave a statement, wherein he stated that he was In-charge of Original Appliances Private Limited, a wine shop. On that day, they had opened their shop. At about 06.15 P.M., many people came outside the shop. They were carrying the banners of CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 2/26 "Sharab ki dukaan band karo". They started raising slogans and making noise and tied a rope on the gate of the shop, due to which certain employees were left inside the shop. They were stopped inside the shop. They started asking the customers to go away and telling them that the liquor shop should be closed. He also stated that Jitender Mahajan, MLA, Rohtash Nagar, Dharamveer Nagar, Kusum Tomar, Kusum Lata Nagar, and Vinay Kamba were there amongst those persons. He further stated that he would inform about the remaining persons after identification. Based on the above statement, FIR No. 383/2021, under Sections 188/341/342/34 IPC and Section 51 of The Disaster Management Act, 2005 (hereinafter referred to as the 'DMA'), PS Shahdara was got registered, by sending a Rukka through Ct. Naveen.
2.2 Investigation was carried by ASI Manohar Singh. During investigation, site plan was prepared and search was made for the accused persons. On 20.11.2021, the Investigating Officer issued notice u/s 91 Cr.P.C. to the complainant for obtaining video footage of the incident. The complainant provided a CD of the footage, alongwith certificate u/s 65 B of the Indian Evidence Act, 1872. The same were seized. Supplementary statement of the complainant was recorded, wherein he stated that the correct name of Kusum Lata Nagar was Suman Lata Nagar, who was a Municipal Councilor from East Rohtash Nagar and Dharamveer Nagar was her husband. Vinay Kamba could not be found. It was learnt that Jitender Mahajan was MLA of BJP, both Kusum Tomar and Suman Lata Nagar were Municipal Councilors of BJP and Dharamveer Nagar was husband of Suman Lata Nagar, who was also a leader of BJP. Since all the accused persons were respected persons of the society and enjoying CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 3/26 good reputation, there was apprehension of breach of peace in the area, if they were arrested. They were also permanent residents of the area. Thus, they were not arrested. Sanction u/s 195 Cr.P.C. was obtained from the concerned ACP. On completion of investigation, chargesheet under Sections 188/341/342/34 IPC and Section 51 of the DMA was filed against accused Jitender Mahajan, Suman Lata Nagar, Dharamveer Nagar and Kusum Tomar.
2.3 Cognizance of the offences was taken and the accused persons were summoned. After supplying copies of documents u/s 207 Cr.P.C., notice u/s 251 Cr.P.C. was framed against the accused persons for commission of offences punishable under Sections 188/341/342/34 IPC and Section 51 of the DMA. The accused persons pleaded not guilty to the charges and claimed trial.
2.4 In order to prove it's case, the prosecution has examined seven witnesses, namely, PW-1 ASI Babita, PW-2 ASI Ravinder Kumar, PW-3 HC Ravinder, PW-4 Sansar Chand, PW-5 Anil Singh, PW-6 Ct. Naveen Yadav and PW-7 ASI Manohar Singh. Presence of PWs Karam Chand and Shashi Kumar, who were also working at the wine shop, could not be procured and, thus, they were dropped. PW1 ASI Babita was the duty officer, who has deposed about registering FIR, Ex. PW1/A, and making endorsement on the Rukka, Ex. PW1/B. PW-2 ASI Ravinder Kumar was the duty officer at PS Shahdara on 18.11.2021, who has deposed about receiving PCR call at 07:13 P.M., making entry, vide DD, Ex. PW2/A in the computer regarding the said information and sharing the same with ASI Manohar Singh. PW-3 HC Ravinder has produced Order u/s 144 Cr.P.C., Ex. PW3/A, and Sanction dated 20.04.2022 u/s 195 Cr.P.C., CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 4/26 Ex. PW3/B. PW-4 Sansar Chand is the complainant. PW-5 Anil Singh is another employee at the wine shop, who has deposed on the lines of the testimony of PW-4 Sansar Chand. PW-6 Ct. Naveen Yadav has accompanied the IO to the spot. PW-7 ASI Manohar Singh is the IO.
2.5 Statements of the accused persons u/s 313 Cr.P.C. were recorded, wherein they have generally denied the incriminating evidence that has come against them. The appellants also stated that they have been falsely implicated and targeted due to political vendetta because Jitender Mahajan is the Area MLA, Dharamveer Nagar is a BJP worker and Kusum Tomar is the Area Councillor. The accused persons did not opt to lead evidence in their defence.
2.6 Vide judgment dated 14.12.2023, the appellants were convicted for the offences punishable under Sections 341/342/34 IPC. They were acquitted of the charges u/s 188 IPC and Section 51 DMA. Accused Suman Lata Nagar was acquitted of all the charges framed against her. Vide order on sentence dated 27.02.2024, the appellants were sentenced as above.
3.1 The appellants have assailed the judgment and order on sentence, inter-alia, on the ground that complainant/PW-4 Sansar Chand has failed to point out as to who had tied the rope at the shop. He had categorically stated that CCTVs were installed inside and outside the shop. However, no such footage has been retrieved by the police. PW-7 ASI Manohar Singh has categorically stated that on his arrival at the spot, complainant/PW-4 Sansar Chand has himself opened the half closed shutter of the shop and the rope. In his cross examination, PW-7 ASI Manohar Singh has also stated that the CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 5/26 complainant informed him that there was no recording of CCTV footage and only a mobile phone recording was available. Therefore, he only took the CD containing the recordings. It is contended that the above facts have not at all been considered by the Ld. Trial Court. It is further stated that PW-5 Anil Singh, who has been declared hostile by the prosecution, has also not stated anything with regard to the person who had tied the rope at the shop. He has deposed that he knew names of some of the accused persons i.e. Jitender Mahajan, Mahavir and Suman Lata. However, he has failed to identify even a single accused person and rather stated that persons who had wrongfully restrained/confined them were all men and none of them was a women.
3.2 It is further stated that though the Ld. Trial court has categorically held that the CD containing photos and videos are inadmissible in evidence, it also held that the entire case of the prosecution shall not be discarded as the trial also depends upon the testimony of the eye witnesses. It is contended that the ocular evidence in this case is contradictory. PW-7 ASI Manohar Singh had categorically stated that after his arrival, the In-charge of the said shop, namely, Sh. Sansar Chand opened the half closed shutter of the shop and also opened the rope. These facts show that there was no confinement or restriction on the movement of any person at any time, as anybody who was inside the shop, could easily come out of the shop. The Ld. Trial Court has disregarded the testimony of the IO. It is argued that on this ground alone, the present appeal deserves to be allowed.
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 6/26 3.3 It is further stated that the Ld. Trial Court had proceeded on the assumption that the presence of a large crowd outside the wine shop, raising slogans of protest, would have created fear in the mind of an average person that if he moves out of the shop, he may suffer harm. However, it has failed to appreciate that no legally admissible evidence has been led to establish as to who had tied the rope to confine the persons inside the shop. Further, there is nothing in evidence to suggest as to for how long the complainant and other persons were confined in the shop. It is also stated that PW-4 Sansar Chand had stated about the installation of CCTV inside and outside the shop. However, the footage from the same was neither sought nor seized by the police. It is also stated that the Ld. Trial Court has also failed to appreciate that PW-4 Sansar Chand has stated that 6-7 other persons were also locked up with him in the shop. However, the prosecution has not examined any of the said independent person.
3.4 It is further stated that the testimony of the complainant is contrary to the statement of the IO. The Ld. Trial Court has lost sight of the fact that in the evidence of the police officials, there is no averment that when they reached the spot, they found any of the appellants on the spot. It had relied upon the testimony of PW-6 Ct. Naveen Yadav to hold that the complainant and others were confined in shop only for the reason that he was not cross-examined on behalf of the accused persons. The appellants have, thus, prayed that the impugned judgment and order on sentence be set aside.
4.1 Sh. Pawan Narang, Ld. Counsel for the appellants has argued that there are many irreconciliable contradictions in the CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 7/26 prosecution case. According to PW-4 Sansar Chand and PW-5 Anil Singh, the incident took place at 06:15 PM, and PW-4 Sansar Chand has immediately called the police, whereas according to PW-7 ASI Manohar Singh, he has received GD No. 0082 A, Ex. PW2/A, at about 07:15 PM, which show that the incident took place after 07:00 PM. It is contended that as per PW-4 Sansar Chand, he has made video from inside the shop, got the CD prepared from the market and given the same to the police. He has not clarified as to who has made the CD. That is why the court has discarded the video recording. Ld. Counsel has further contended that though admittedly, CCTV cameras were installed at the Wine Shop, the IO did not ask for CCTV footage. The police has also not seized any placard being carried by the persons in the crowd. Further, the owner of the wine shop, Sh. Abhishek Agarwal, was not asked to join the investigation, although as per PW- 4 Sansar Chand, he had immediately called the owner and the police at 100 number. It is also argued that the version of PW-5 Anil Singh that all the persons who had wrongfully confined/restrained him and his associates were male and none of them was female is contrarty to the prosecution case. PW-5 Anil Singh has also not stated that PW-4 Sansar Chand was present with him inside the shop. He has also not identified any accused person. It is also submitted that as per PW-6 Ct. Naveen Yadav and PW-7 ASI Manohar Singh, the accused persons were not present when they reached the spot, which show that there was no fear in the mind of PW-4 Sansar Chand, PW-5 Anil Singh or their colleagues because of the accused persons.
4.2 Ld. Counsel for the appellants has further argued that according to PW-4 Sansar Chand, the persons who came to their shop, were holding a rope in their hands. They closed the door of the liquor CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 8/26 shop and tied the rope on the door. He further testifed that after he had made call at 100 number to the police, the police officials arrived at the shop and rescued them from the said shop. PW-5 Anil Singh also testifed that the group of people, which had gathered in front of the shop, closed the door of the said wine shop with a rope from outside and he along with other co-workers were confined in the said liquor shop. They have not stated that any of the three appellants have tied the rope. However, PW-7 ASI Manohar Singh has testifed that after his arrival, the Incharge of the said wine shop, PW-4 Sansar Chand, opened the half closed shutter of the said shop and also removed the rope. Ld. Counsel has contended that if the rope was removed and half closed shutter of the shop was opened by PW-4 Sansar Chand, there was no question of the police rescuing PW-4 Sansar Chand or PW-5 Anil Singh. It is also argued that the rope, with which the door of the wine shop was allegedly tied was an important piece of evidence. However, the same has neither been produced nor even seized by the police.
4.3 Ld. Counsel for the appellants has also argued that the prosecution has not produced the best available evidence before the court. The guards and other workers of the wine shop, the neighbouring shopkeepers, the persons, other than the appellants, who had gathered at the spot, were the best witnesses to the alleged incident. However, they have not been examined by the IO. Even the owner of the wine shop, who came to the shop, on being called by PW-4 Sansar Chand was not examined. Further, as per the prosecution version, there were 6 to 7 persons inside the shop. However, only two such persons were examined. It is also argued that there is no evidence to the effect that there was any threat extended by any of the accused CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 9/26 persons or other person present in the crowd so as to deter the complainant or any other worker of the wine shop from coming out of the shop. Thus, there was no wrongful restraint or confinement. Ld. Counsel has submitted that the protest by the crowd was a legitimate protest against the opening of the wine shops. There is no evidence to the effect that the purpose of the crowd which had gathered outside the liquor shop was to wrongfully restrain or wrongfully confine any person. Ld. Counsel has argued that during the protest, some inconvenience might have been caused to the general public but neither the appellants had any intention nor they had wrongfully restained or confined any person. In support of his submissions, Ld. Counsel for the appellants has relied upon Nanak Chand vs. State of Punjab, 1955 SCC Online SC 52, Mamta Tripathy and Ors. vs. State of Orissa and Ors., MANU/OR/0379/2019, Javed Shaukat Ali Qureshi vs. State of Gujarat, 2023 SCC OnLine SC 1155, Topandas vs. State of Bombay, 1955 SCC OnLine SC 33, Ram Laxman vs. State of Rajasthan, 2016 SCC OnLine SC 253, Ram Singh vs. State of Uttar Pradesh, 2024 SCC OnLine SC 170, Ashish Batham vs. State of Madhya Pradesh, (2002) 7 SCC 317, Balraj Singh vs. State of Madhya Pradesh, (2017) 14 SCC 291, Paulmeli and Anr. Vs State of Tamil Nadu, (2014) 13 SCC 90, Raju Pandurang Mahale vs. State of Maharashtra, (2004) 4 SCC 371, Subhash Krishnan vs. State of Goa, (2012) 8 SCC 365, Keki Hormusji Gharda and Ors. vs. Mehervan Rustom Irani and Anr., 2009 SCC OnLine SC 1137, Pradeep Kumar vs. State of Chattisgarh, (2023) 5 SCC 350 and Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808.
5.1 The State has not filed any reply to the appeal. However, Sh. Manish Rawat, Ld. APP for the State has argued that the first CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 10/26 version of the complainant, recorded in DD, Ex. PW2/A, was regarding their wrongful confinement. During his cross examination, no suggestion was given to PW-2 ASI Ravinder Kumar that the said DD entry was manipulated. He has also contended that PW-4 Sansar Chand has fully supported the prosecution case and identified all the appellants. He is not related to any political party. Thus, there was no motive for him to falsely implicate the appellants. While relying upon Pappu Tiwary vs. State of Jharkhand, 2022 SCC OnLine SC 109, Ld. APP has argued that since the version of PW-4 Sansar Chand is believable, it should be given credence. It is further contended that the appellants have wrongfully confined PW-4 Sansar Chand and other workers of the wine shop. PW-5 Anil Singh and PW-6 Ct. Naveen Yadav have also corroborated the version of PW-4 Sansar Chand that the IO has rescued employees of wine shop from the said shop. It has been also argued that since PW-6 Ct. Naveen Yadav has not been cross examined, his testimony has gone unimpeached and ought to be believed. In this regard, he has relied upon Mahavir Singh vs. State of Haryana, MANU/SC/0506/2014 and Sarwan Singh vs. State of Punjab, AIR 2002 Supreme Court 3652.
5.2 Ld. APP has also contended that the answers given by the appellants in their statements u/s 313 Cr.P.C. are quite vague and they have been unable to explain the circumstances which had come in evidence against them. He has also argued that the testimony of the IO is not to be read in isolation. The depositions of PW-4 Sansar Chand and PW-5 Anil Singh, who are the victims, have gone unimpeached and are sufficient to prove the prosecution case. In support of his submissions, Ld. APP has also relied upon Attappa Goundan and Ors. vs. State, AIR 1951 Mad 759, Madala Peraiah & CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 11/26 Ors. vs Voruganti Chendriah, AIR 1954 Mad 247, Ram Anant Missir vs. The King, 1948 SCC OnLine Cal 15 and Om Parkash vs. The State, 1958 SCC OnLine Punj 104. He has, thus, prayed that the appeal may be dismissed.
6.1 I have heard Sh. Pawan Narang, Ld. Counsel for the appellants and Sh. Manish Rawat, Ld. APP for the State and also perused the record.
7.1 In the present case, with respect to notice under Sections 341/342/34 IPC framed by the Ld. Trial Court, the following points were required to be determined:-
(A) Charge u/s 341/34 IPC (i) Whether or not, on 18.11.2021, at about 06:15 PM, at the
Wine Shop, at 1/5/003, Loni Road, Balbeer Nagar Extn., Shahadara Delhi, within the jurisdiction of PS Shahadara, all the accused persons along with other unknown persons, carried out agitation/protest by carrying banners of "Sharab ki dukan band karo", in their hands, and they tied a rope on the gate of the said liquor shop and thereby obstructed some workers of the said liquor shop?
(ii) If so, whether or not, all the accused persons, along with other unknown persons, obstructed the said workers, as above, so as to prevent them from proceeding outside the shop, in which direction the said persons had a right to proceed?
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 12/26
(iii) If so, whether or not, all the accused persons, along with other unknown persons, in obstructing the said workers, as above, acted in furtherance of their common intention?
(B) Charge u/s 342/34 IPC (i) Whether or not, on the aforesaid date, time and place, all
the accused persons, alongwith other unknown persons, wrongfully restrained some workers of the above liquor shop, as above, in such a manner as to prevent the said persons from proceeding beyond certain circumscribing limits i.e. the aforesaid shop?
(ii) If so, whether or not, all the accused persons, alongwith other unknown persons, in wrongfully confining the said workers, as above, acted in furtherance of their common intention?
8.1 It would be relevant to refer to Section 339 IPC, which defines 'wrongful restraint' and Section 340 IPC which defines 'wrongful confinement', as under:-
"339. Wrongful restraint Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person." (emphasis supplied).
"340. Wrongful confinement Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person."
8.2 It can be seen that it is only if a person ' voluntarily' obstructs any person, as above, that he can be said wrongfully to CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 13/26 restain that person. Thus, it is also pertinent to refer to Section 39 IPC, which stipulates as under:-
"39. "Voluntarily"-- A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." (emphasis supplied)
9.1 It is also pertinent to note that as per Section 3 of the Indian Evidence Act, 1872, a fact is said to be proved when, after considering "the matters before it", the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The expression, "the matters before it" is wide enough to cover even matters which are other than " evidence". It includes statements of the witnesses, admissions, oral or written, confession of the accused, documents proved in evidence, demeanour of witnesses, local inspections and presumption etc. In this regard a reference can be made to Ved Parkash Kharbanda Vs. Vimal Bindal, (2013) 198 DLT 55.
9.2 It is also relevant to mention that while appreciating the evidence, a court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and they are to be subject to no particular CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 14/26 rules whatever on the subject. [Vide Section 114 IEA and Ved Prakash Kharbanda Vs. Vimal Bindal (Supra)].
10.1 In it's judgment dated 14.12.2023, with regard to CD, Ex. PW4/E, allegedly containing video footage of the incident, the Ld. Trial Court has held, "Thus, admittedly, CD Ex. PW4/E has not been prepared by the Complainant himself and has been got prepared by some third person by the Complainant. Neither any such third person has been mentioned in the list of witnesses nor in the testimony of the Complainant nor brought in the witness box. Since the transfer of data and preparation of the secondary evidence i.e. CD was done by the said third person, his testimony in the witness box was relevant and also his certificate u/s 65 B IEA was necessary. However, for the reasons best known to the IO or because of his lack of knowledge with respect to collection and examination of electronic record as evidence in Court, neither the original Mobile phone has been seized by the IO containing the videos/photos nor any document has been sent to FSL for examination nor any person has been made a witness who could have proved the transfer of data from the phone of Complainant to CD Ex. PW4/E. Moreover, on perusal of Ex. PW4/C ie. Certificate of the Complainant u/s 65B IEA it is observed that it does not comply with the directions in the Anvar PV Judgment mentioned above as it neither furnishes the particulars of the device on which the videos/photos were made/received, nor any other details through which the electronic record can be identified. Neither the date nor the time at which the said photos/videos were procured/prepared can be seen on any of the media files. Merely mentioning by the Complainant that the data contained in the CD has been taken out from his Mobile phone and its contents are true reproduction of the original to the best of his knowledge and belief, is not sufficient compliance of Section 65 B of IEA in the absence of other requisites as already mentioned above.
12.5 In view of the above discussion, it is apparent that CD Ex. PW4/E and its contents are not verified as per the relevant legal principles as discussed above and thus, the videos and photographs contained therein are inadmissible in evidence."
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 15/26 Both the parties have submitted that the Ld. Trial Court has rightly discarded the videos and photographs contained in the CD.
11.1 To appreciate the evidence led by the prosecution, it would be relevant to go through the depositions of PW-4 Sansar Chand, PW-5 Anil Singh, PW-6 Ct. Naveen Yadav and PW-7 ASI Manohar Singh. PW-4 Sansar Chand, who was working as a Manager in the liquor shop, has, inter-alia, deposed that on 18.11.2021, at around 06:15 P.M., a crowd of several people came in front of the shop. They were holding banners in their hands on which it was written, 'Sharab ke theke band karo'. They were raising slogans, 'Sharab ke theke band karo'. Some people from the crowd, who were holding a rope in their hands, came in the front. They closed the door of the liquor shop and tied the said rope on the door. They also started chasing away the customers who were standing at the liquor shop at that time. He, along with around 6-7 other people, was locked inside the shop after they closed the door as above. He has identified the appellants. He further stated that he has made call to the police at 100 number. After some time, police officials arrived at the spot and they rescued them from the said liquor shop. He made a complaint to the police officials, Ex. PW4/A, on the basis of which FIR was lodged.
11.2 During his cross examination, PW-4 Sh. Sansar Chand has admitted that there were CCTV cameras installed at the liquor shop covering the interior and exterior of the liquor shop. He stated that the online feed of the CCTV cameras was available with the senior officers of the company. He also admitted that the said CCTV footage used to get stored in the DVR installed in the liquor shop and CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 16/26 its password was also with the senior officers of the company. He further stated that during investigation, the IO did not ask him to provide the footage available in the DVR of the CCTV cameras installed in the liquor shop. He also did not inform the IO that he can get the video footage of the CCTV cameras for the purpose of investigation. He further deposed that at around 06:15 P.M. when people gathered outside the wine shop, he immediately called the owner of the shop Sh. Abhishek Aggarwal. Thereafter, immediately on the instructions of his owner, he called the police at 100 number. Within 20-25 minutes of his calling, the police reached the spot.
11.3 PW-5 Sh. Anil Singh has deposed that on 18.11.2021, at about 06:15 P.M., when he was present at Shop no. 1/5003, Balbir Nagar Extension, Loni Road, he saw that a group of people had gathered in front of the said shop and they started raising slogans, 'band karo band karo wine shop band karo'. The said persons also closed the door of the wine shop with the help of a rope from outside and he, alongwith other co-workers, was confined in the said liquor shop. The people who had gathered outside the shop continued their protest in front of the shop. After some time, police officials arrived at the shop and rescued them from the shop. He knows names of some of the accused persons i.e. Jitender Mahajan, Mahavir and Suman Lata. He further stated that all the persons who had wrongfully confined him and his associates were male and none of them was female. However, he has failed to identify the accused persons and stated that the persons whom he identified were not present in the court and the accused persons in the present case were not seen by him at the spot on the date of incident.
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 17/26 11.4 During his cross examination, PW-5 Sh. Anil Singh has admitted that CCTV cameras were installed, both inside and outside the wine shop and the recording equipment was also installed in the wine shop itself. He further stated that the protest started at about 06:15 PM. However, the police came after one and a half to two hours hours. The door of the shop was opened after the police came. Normally, there are guards and bouncers deployed within the premises of the shop and also outside. However, on the date of the incident, none of the bouncers were present but only two guards were there on the spot.
11.5 PW-6 Ct. Naveen Yadav has deposed that on 18.11.2021, he was present at PS Shahdara and his duty hours were from 08:00 A.M. to 08:00 P.M. On that day, at about 06:15 PM, IO ASI Manohar Lal asked him to join the investigation in the present case. He, alongwith the IO, went to the spot i.e. Wine shop, 1/5003, Loni Road, Shahdara where they found that a group of people had gathered. They were carrying out a protest in front of the wine shop and were raising slogans to close the said wine shop. He also found that one rope was tied in front of the said wine shop. Thereafter, ASI Manohar Lal, IO, tried to pacify the situation and also removed the employees of the above wine shop from the said shop. He has also deposed about PW-7 ASI Manohar Singh recording the statement of the complainant, getting the FIR registered by sending tehrir, through him, to PS Shahadara and carrying out investigation. This witness was not cross examined on behalf of the accused persons.
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 18/26 11.6 PW-7 ASI Manohar Singh has deposed that on 18.11.2021, at about 07:15 P.M., he received information, vide GD No. 0082A, Ex. PW2/A, that some people had gathered at Shop No. 1/5003, Balbir Nagar and had confined the workers of the said shop by closing the gate of the said shop. On this information, he along with Ct. Naveen went to the spot, where they found that some people had gathered in front of the abovesaid shop. They were also carrying placards with some slogans against the wine shop. He also found that the shutter of the said wine shop was half closed and a rope was tied in front of the said shop. After his arrival, the In-charge of the said wine shop, Sh. Sansar Chand opened the half closed shutter of the said shop and also removed the said rope. Sh. Sansar Chand also gave his oral complaint, which was reduced into writing by him in his own handwriting, Ex. PW4/A. He has also deposed about getting FIR registered and carrying out investigation.
11.7 During his cross-examination, PW-7 ASI Manohar Singh, inter-alia, stated that Sh. Sansar Chand informed him that there was no recording of CCTV footage and only a mobile phone recording was available. Therefore, he only took the CD containing recordings, as part of his investigation.
12.1 It can be seen that as per the Complaint dated 18.11.2021, Ex. PW4/A, when PW-4 Sansar Chand was at his shop on 18.11.2021, at about 06:15 PM, many people, including the appellants, came outside the shop. They were carrying in their hand, banners of 'Sharab ki dukan band karo'. In his testimony also, PW-4 Sansar Chand has stated that on that day at around 06:15 PM, a crowd of CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 19/26 several people came in front of the shop and they were holding banners in their hands on which it was written, ' Sharab ke theke band karo'. They were raising slogans, 'Sharab ke theke band karo'. PW-5 Anil Singh has also deposed that on 18.11.2021, at about 06:15 PM, he saw that a group of people had gathered in front of the shop. They started raising slogans, 'Band karo band karo, wine shop band karo'. From the aforesaid, it is clear that the above persons were demanding closure of the wine shops. As contended by the Ld. Counsel for the appellants, there is nothing on record to suggest that their purpose was to wrongfully restrain or confine any worker of the wine shop.
12.2 Further, in General Diary No. 0082A dated 18.11.2021, Ex. PW2/A, recorded at 07:13 PM at PS Shahadara by HC Ravinder Kumar, it is stated that the Control Room, through wireless set had informed, "Balbir Nagar Wine Shop 1/5003 Wine shop jo new open hui hai 100 people hai jimnohene sheeter close kr hum ander hai kisi ko aane jane nhe de rhe hai Mob no- 9816900188 ". This is the first information about the incident received at Police Station, Shahadara. In the said information, there is no mention of the door of the shop having been tied by any rope, as has been deposed by PW-4 Sansar Chand, PW-5 Anil Singh and PW-6 Ct. Naveen Yadav. Further, this information was received at 07:13 PM, whereas, as per Rukka, Ex. PW7/A, as well as PW-4 Sansar Chand and PW-5 Anil Singh, the incident had taken place at 06:15 P.M. During his cross-examination, PW-4 Sansar Chand had stated that when the people gathered at their shop, he had immediately called Sh. Abhishek Aggarwal, the owner of the shop, and then immediately on the instruction of his owner, he had called the police at 100 number. However, the time of receipt of information at the police station is 07:13 P.M. i.e. after about one hour CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 20/26 of the incident. In the normal course, if a distress call about wrongful confinement was made at around 06:15 P.M., it would not have been recorded at the police station after about one hour. Further, PW-6 Ct. Naveen Yadav, who had accompanied the IO, PW-7 ASI Manohar Singh to the spot, has testifed that on 18.11.2021, at about 06:15 PM, IO ASI Manohar Singh asked him to join the investigation in the present case. There is no clarification by the prosecution as to how IO ASI Manohar Singh could have asked him to join the investigation at 06:15 PM, when GD No. 82/A, Ex.PW2/A, itself was recorded at 07:13 PM.
12.3 It is also observed that as per Rukka, Ex. PW7/A, and the chargesheet, on 18.11.2021, on receipt of DD No. 82 A, when ASI Manohar Singh, along with Ct. Naveen Yadav, reached the spot, complainant Sansar Chand met him and gave his statement, Ex. PW4/A. However, it is not mentioned therein that complainant Sansar Chand or any other worker of the wine shop was, at that time, confined inside the wine shop or that ASI Manohar Singh had to open any rope to take them out of the shop. Even in his complaint, Ex. PW4/A, which is the first statement of the complainant, he has not stated that after reaching the site of incident, the IO had opened the rope or rescued him from the shop, where they were allegedly confined by tying a rope at the door of the said shop. This is contrary to the depositions of PW-4 Sansar Chand, PW-5 Anil Singh and PW-6 Ct. Naveen Yadav in the court regarding PW-4 Sansar Chand and other workers of the wine shop being confined in the said shop by tying a rope at the door of the shop and the IO/police rescuing them. It is considered that if the complainant and other workers of the wine shop were actually confined inside the shop and were only rescued CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 21/26 after the IO came to the spot, it was an important fact which would have been mentioned by the complainant in his complaint, Ex. PW4/A, as well as by PW-7 ASI Manohar Singh in the Rukka, Ex. PW7/A and the chargesheet. PW-4 Sansar Chand, PW-5 Anil Singh and PW-6 Ct. Naveen Yadav have for the first time stated in their depositions before the court about PW-4 Sansar Chand, PW-5 Anil Singh and other workers of the shop being rescued by the IO/police officials. There is no explaination by the prosecution in this regard. Thus, it creates a doubt regarding their testimonies in the court.
12.4 Further, as per PW-4 Sansar Chand and PW-5 Anil Singh, after some time of the incident, police officials arrived at the shop and rescued them. As per PW-6 Ct. Naveen Yadav also, after he, alongwith IO ASI Manohar Singh, had reached the spot, ASI Manohar Singh removed the employees of the wine shop from the said shop. However, in contradiction to the above, PW-7 ASI Manohar Singh has deposed that after his arrival, the Incharge of the said wine shop, namely, Sh. Sansar Chand opened the half closed shutter of the shop and also removed the rope. He did not depose that it was he who had opened the rope or the shutter of the shop. Ld. APP has submitted that the deposition of PW-7 ASI Manohar Singh need not be read in isolation. It is considered that the fact as to whether it was PW-7 ASI Manohar Singh, who opened the rope allegedly tied at the door of the wine shop or PW-4 Sansar Chand had himself opened the shutter and the rope, is such an important and material fact about which no mistake can be made. The above contradiction, when seen alongwith the complaint, Ex. PW4/A and Rukka, Ex. PW7/A, leads to the inference that when PW-7 ASI Manohar Singh reached the spot, PW-4 Sansar Chand was not confined inside the shop. Rather, he met PW-7 CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 22/26 ASI Manohar Singh and gave his statement, as mentioned in the complaint, Ex. PW4/A and Rukka, Ex. PW7/A. 12.5 It is also pertinent to note that the rope, if any, which was allegedly tied on the door of the wine shop was an important piece of evidence. The same has neither been produced before the court nor stated to have been seized. Further, it has not been stated by PW-4 Sansar Chand as to for how long the appellants or the crowd remained outside their shop. Though, PW-5 Anil Singh stated that the group of people which had gathered outside the shop continued their protest in front of the said shop, he has also not specified as to for how long they continued to protest in front of the shop. Further, during his cross-examination, PW-4 Sansar Chand has admitted that there were CCTV Cameras installed at the liquor shop covering the interior and exterior of the liquor shop and that the CCTV footage used to get stored in the DVR installed in the liquor shop. The recordings of the said CCTVs could have shown as to for how long the appellants or the crowd stayed outside the shop. However, the said CCTV footage was neither obtained nor produced before the court. No reason has been given as to why the said footage was not obtained. There is also no evidence to the effect that any of the appellants or the protestors threatened PW-4 Sansar Chand, PW-5 Anil Singh, or other workers of the said wine shop to remain inside the shop. The aforesaid facts also create a doubt on the prosecution version regarding the confinment of the above persons inside the shop. Further, even if it is assumed that PW-4 Sansar Chand, PW-5 Anil Singh or their co-workers were under the impression that they were being wrongfully restrained or confined, from the facts and circumstances of the case, it does not appear that CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 23/26 the appellants intended or knew or had reason to believe that by their actions, they would wrongfully restrain or confine them.
12.6 From the matters before the court, three contradictory versions regarding the incident in question have emerged. Firstly, it appears from the Complaint, Ex. PW4/A and Rukka, Ex. PW7/A, that when PW-7 ASI Manohar Singh went to the spot, PW-4 Sansar Chand straightaway met them and gave his statement. It is not stated therein that he was, at that time, confined in the shop. Thus, it can be safely inferred that neither he nor any other worker of the shop was, at that time, wrongfully restrained or confined in the shop. Secondly, as per PW-7 ASI Manohar Singh, when he reached the spot, a rope was tied to the door of the shop. However, PW-4 Sansar Chand himself opened the half closed shutter and the rope. From his testimony, it appears that there was no physical obstruction which prevented PW-4 Sansar Chand or his co-workers from coming out of the shop. Thirdly, as per the testimonies of PW-4 Sansar Chand, PW-5 Anil Singh and PW-6 Ct. Naveen Yadav in the court, PW-7 ASI Manohar Singh, after reaching the shop, opened the rope tied at the door of the shop and rescued PW-4 Sansar Chand and his co-workers. The latter two versions have come on record for the first time during the trial and, thus, does not inspire any confidence. The mere fact that a witness has not been cross-examined does not make his testimony truthful. It is considered that these are major contradictions which, in the absence of any satisfactory explanation, creates a reasonable doubt regarding the prosecution case. The benefit of such doubt ought to be given to the appellants. In this regard, reference can be made to Kali Ram vs. State of Himachal Pradesh, (Supra).
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 24/26 12.7 It may also be mentioned that any form of protest or an agitataion will necessarily cause some hindrance to the movement of the general public for sometime, but that by itself does not constitute an offence of a wrongful restraint. In this regard, reference can be made to Jeevanandham vs. State, 2018 SCC OnLine Mad 13698 and B. Venkatesh vs. The State of Tamil Nadu & Ors., (Criminal Original Petition No. 25175 of 2019, decided by the Hon'ble High Court of Madras on 08.03.2023). Further, it is well settled that in the absence of requisite mens rea under Sections 339 and 340 of IPC, the ingredients of the offences under Sections 341 and 342 of IPC are not attracted. In this regard reference can be made to Mamta Tripathy and Another vs. State of Orissa and Others (Supra).
13.1 In view of the aforesaid discussion, it is considered that the prosecution has failed to prove its case against appellants Jitender Mahajan, Dharamveer Nagar and Kusum Tomar, beyond a reasonable doubt. Accordingly, the appeal is allowed and judgment dated 14.12.2023, with respect to conviction of the appellants under Sections 341/342/34 IPC, and order on sentence dated 27.02.2024 are set aside. Appellants Jitender Mahajan, Dharamveer Nagar and Kusum Tomar are acquitted of the above charges framed against them. The amount of fine and prosecution expenses paid by the appellants be refunded to them.
14.1 Their bail bonds are cancelled and their sureties are discharged.
CA No. 3/2024 Jitender Mahajan & Ors. vs. State of NCT of Delhi Page no. 25/26 15.1 The appellants have already furnished bail bonds in terms of Section 437 A Cr.P.C.
16.1 A copy of the judgment, along with the trial court record, be sent to the Ld. Trial Court.
17.1 Appeal file be consigned to record room.
Announced in the open Court Digitally
signed by
RAKESH
on 03.08.2024. RAKESH SYAL
SYAL Date:
2024.08.03
16:00:14
+0530
(Rakesh Syal)
Special Judge (PC Act) (CBI)-23,
(MPs/MLAs Cases),
Rouse Avenue Court Complex,
New Delhi; 03.08.2024
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