Delhi District Court
State vs . Dhananjay on 21 April, 2023
IN THE COURT OF SH. JITENDER: METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI.
STATE VS. DHANANJAY
FIR Number : 533/2022.
Under Section : 283 IPC.
Police Station : Bh. Dairy.
JUDGMENT
a) Registration no. of case : 197/2023.
b) Name & address of the : HC Amardeep
complainant No. 165/OND PIS No.
28081683, PS Bh. Dairy, Delhi
c) Name & address of : Dhananjay Kumar Singh
accused
d) Date of Commission of : 06.07.2022
offence
e) Offence complained of : 283 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : ACQUITTED
FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 1 of 11
Date of Institution : 07.01.2023
Judgment Pronounced on : 21.04.2023
JUDGMENT
Brief facts:
1. The case of the prosecution is that on 06/07/2022 at about 09:00 PM at Ishue Vihar Nala Road, Mukundpur, Delhi, (hereinafter the "spot" or "place of incident") the accused was found obstructing the public way by putting his rehadi on the road and thereby committing the office U/s 283 Indian Penal Code. The present FIR no. 533/22 was registered u/s. 283 of Indian Penal Code (hereinafter "IPC").
2. On the basis of investigation carried out by the police the chargesheet under section 173 Cr.P.C. was filed in the court on 07/01/2023 and the copy of chargesheet and other relevant documents were supplied to the accused in compliance of section 207 of the Cr.P.C.
3. On the basis of charge sheet, charge for committing of offence punishable under section 283 IPC was framed upon the accused on 17/03/2023 to which he pleaded not guilty and claimed trial.
FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 2 of 11Prosecution Evidence
4. The prosecution has examined as many as 02 witnesses to prove its case. PW1 HC Tejpal was the Complainant/informant in the case. They have been duly examined and cross examined.
5. Prosecution evidence was closed on 18/03/2023 and matter was fixed for recording of statement of accused U/S 313 Cr.P.C and same was recorded on same day i.e. 18/03/2023.
Statement of accused
6. All the incriminating evidence and facts were put before the accused Dhananjay Singh wherein he denied all such evidence against him and pleaded that I am innocent and falsely implicated in the present case. All witnesses are interested witnesses but chose not to lead any defense evidence paving the way for final argument.
Issue to be decided Before proceeding further, as per mandate laid down under section 354 (1)(b) Cr.P.C. the point of determination which is necessary to consider in order to arrive at a conclusion whether the accused Dhananjay Singh has committed the offence of obstructing the public way punishable U/s 283 IPC?
FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 3 of 11Court's observation
7. Let us peruse the provision of section 283 IPC, which is as under:
Section 283: Danger or obstruction in public way or line of navigation:
Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to two hundred rupees.
FINDINGS
8. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 4 of 11Absence of Public Witnesses
9. The case of the prosecution is that on 06/07/2022 at about 09:00 PM at Ishue Vihar Nala Road, Mukundpur, Delhi, the accused was found obstructing the public way by putting his rehadi on the road and thereby committing the office U/s 283 Indian Penal Code. PW1 deposed in his crossexamination that "It is correct that the spot was a public place. It is also correct that the public persons are also present there. It is also correct that I did not request the public persons to join the investigation". This fact also admitted by the PW2 in his cross examination. The spot of the recovery and apprehension of the accused are thus clearly located in an area where in all likelihood, public persons would be easily available/present or at least would be passing by. Despite so, no public person has been cited as a witness in the list of witnesses nor examined by the prosecution in support of its case. It is not the case of the prosecution that no public person was present at the spot at the time of arrest or recovery. In fact, the witnesses have clearly deposed that public persons were present at the time and place in question and that the place was a densely populated area.
It is a well settled proposition that nonjoining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 5 of 11 society. Same has not been done in the present case. This lapse on the part of prosecution casts serious doubt as to whether any sincere efforts were made by the prosecution to join public witnesses in the proceedings. It has been held by the Hon'ble Delhi High Court in case titled as "Anoop Joshi Vs. State"1992(2)C.C.Cases314(HC), that:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
Further in "Roop Chand Vs. The State of Haryana"
1999(1) C.L.R.69,the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to so on the ground that their joining will result into enmity between FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 6 of 11 them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
Similarly, in "Nanak Chand Vs. State of Delhi"
reported as DHC 1992 CRI LJ 55 , it is observed as under:
that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 7 of 11 rejection needs no Napoleon on the Bridge at Arcola".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :
"It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
10. Although, there is no impediment in believing the version of prosecution which is based solely on the testimony of the police officials, but for that the prosecution is first required to lay a very strong foundation to rule out the possibility of "conflict of interest". Present is the case where no sincere efforts were taken by the police officials to join any public person/ independent witness in the case. No plausible explanation has been advanced by the prosecution for nonjoining such witnesses which creates doubt over the story of the FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 8 of 11 prosecution.
Departure entry
11. Another material thing which is required to be discussed about the case of prosecution is the departure and arrival entry maintain by the police officer. As per the Punjab Police Rule, it is mandatory for every police officer to make his departure and arrival entry in DD register of the PS. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. PW1 was asked about the departure entry in his cross examination and in reply he deposed that "I had made the departure entry for the patrolling duty but I do not remember the said DD entry". This fact was also affirmed by the PW2 in his cross examination. In the present case, complete departure or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on "Rattan Lal Vs. State 1987 (2) Crimes 29".
FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 9 of 11Circumstantial evidence
12. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused.
In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 10 of 11
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".
CONCLUSION
13. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. For the reasons stated in aforesaid paragraphs, there are various loopholes in the case of the prosecution and the circumstantial evidence in this case is not of conclusive in nature and tendency which shows the guilt of the accused and create a complete chain towards the guilt of the accused, for which benefit of doubt ought to be granted to the accused. Accordingly, accused Dhananjay Kumar Singh is hereby acquitted for the offence punishable under Section 283 of the IPC. Case property be confiscated to State as per rules.
Dictated & Announced in Open Court.
(Jitender) MM01/North/Rohini/Delhi 21.04.2023 FIR No. 533/2022 PS Bh Dairy State Vs. Dhananjay Page 11 of 11