Delhi District Court
State vs ) Om Prakash S/O Sh. Hoti Lal on 19 March, 2016
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IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
Criminal Appeal No.: 04/15
Case ID No. 02401R0290062015
State
Govt. of NCT of Delhi
Through Public Prosecutor, Central
.......Appellant
Vs.
1) Om Prakash S/o Sh. Hoti Lal
R/o H.No. 263/1, Gali No.7,
Padam Nagar, Delhi.
2) Manoj Kaushik
S/o Sh. Om Prakash Kaushik,
R/o H.No. 263/1, Gali No.7,
Padam Nagar, Delhi.
........Respondents
Date of filing : 02.06.2015
Date of arguments : 09.03.2016
Date of Judgment : 19.03.2016
J U D G M E N T
1. The present appeal has been preferred by the State
against the judgment dated 30.03.2015, passed by the court of
Sh. Rakesh Kumar Rampuri, Ld. MM, Central District, Tis
State Vs. Om Parkash & another (CA 04/15) Page 1 of 17 Special Judge, CBI01, Central, Delhi
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Hazari, Delhi, whereby the respondents have been acquitted
for the offences punishable under Section 186/332/353 IPC
and the offences punishable under Section 141/145/174 of
The Railways Act, 1989.
2. It has been stated in the present appeal that on
02.08.1994 at about 11.30 p.m., respondents Om Prakash and
Manoj Kaushik along with coaccused Rishipal (declared P.O.)
and some other unidentified persons obstructed the police
officials in discharge of their public duty at platform No. 1
Kishan Ganj Railway Station, New Delhi and they also
assaulted and voluntary caused hurt to Constable Ravi Karan
and Ct. Naresh. It is further stated that the respondents, along
with other unidentified persons obstructed 'Tufan Udhan Abha
Express' train in 'rail roko' agitation for supply of electricity in
their residential area and interfered with the means provided
by the Railway Administration in the said train for
communication between passengers and railway.
3. It is further stated in the present appeal that the
prosecution witnesses have proved the prosecution case and
they had specifically deposed that the accused persons /
State Vs. Om Parkash & another (CA 04/15) Page 2 of 17 Special Judge, CBI01, Central, Delhi
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respondents were leading the crowd and provoking them to
break the hosepipe of the train and the train 'Tufan Udhan
Abha Express' was stopped by the mob and the hosepipe of
the said train was broken and the mob also started pelting
stones on the police party, causing injuries to the police
officials, namely, Ct. Ravi Karan and Ct. Naresh Kumar.
4. It is further stated in the present appeal that the Ld. Trial
Court has failed to appreciate the fact that the accused
persons were arrested from the spot and the Ld. Trial Court
has not appreciated the evidence properly and therefore, the
impugned judgment be set aside.
5. After filing of the present appeal, notices were issued to
the respondents and were duly served upon the respondents.
Shri G.S.Gauraya, Ld. Addl. PP for the State / Appellant and
Shri Ravinder Chadha, Advocate, for both the respondents,
have addressed their arguments on the present appeal, at
length.
6. It has been argued by the Ld. Addl. PP for the State /
appellant that PW7 SHO Inspector Ashok Saxena; PW9 SI
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Kitab Singh; PW7 ACP Ved Pal Rathi and PW16 R.D.
Sharma, have all supported the prosecution case and have
categorically stated that the accused were instigating the mob
which had stopped the train at platform No. 1 Kishan Ganj
railway station and the instigation by the accused persons /
respondents has also provoked the mob in pelting the stones
on the police party, which caused injuries to Ct. Ravi Karan
and Ct. Naresh Kumar.
7. He has further argued that the injured government
officials, namely, ASI Ravi Karan and HC Naresh Kumar, have
been examined before the court as PW12 & PW13,
respectively and their testimonies also find corroboration from
the medical evidence on record and the testimonies of the
aforesaid prosecution witnesses have proved the prosecution
case beyond a shadow of doubt and therefore, the impugned
judgment be setaside and the respondents be held guilty and
convicted for the offences punishable, under Section
186/332/353 IPC and for the offences punishable under
Section 141/145/174 of The Railways Act, 1989.
8. On the other hand, the Ld. Counsel for the respondents
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has argued that the prosecution has failed to prove any case
against the respondents, beyond a shadow of doubt, as there
were a large number of material contradictions in the
depositions of the prosecution witnesses, as pointed out by the
Ld. Trial Court in impugned judgment dated 30.03.2015 and
therefore, there is no occasion for any interference by this
Court.
9. He has further argued that the Ld. Trial Court has erred in
taking cognizance for the offences under Section 141/145/174
of The Railways Act, 1989, as Section 180F of the said Act,
bars the Court to take cognizance for the said offence, without
any complaint by the concerned railway officials.
10. He has further argued that the evidence of PW1 ACP
Vedpal Rathi; PW7 SHO Inspector Ashok Saxena; PW9 SI
Kitab Singh & PW16 Inspector R.D. Sharma, as well as the
evidence of PW12 ASI Ravi Karan & PW13 HC Naresh
Kumar, the medical evidence on record and the complaints
under Section 195 Cr.P.C., were never put to accused for his
explanation, when his statement, u/s 313 Cr.P.C., was
recorded by the trial court and therefore, the aforesaid
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evidence cannot be looked into by the court, against the
respondents.
11. The Ld. Defence Counsel has also argued that the Ld.
Trial Court has rightly rejected the evidence on record, as
there were a large number of contradictions in the depositions
of the prosecution witnesses and therefore, there is no
illegality or infirmity in the impugned judgment. He has prayed
that the present appeal be dismissed.
12. The Ld. Defence Counsel has relied upon the following
judgments, in support of his above contentions :
(i) "Sharad Birdhichand Sarda vs. State of Maharashtra",
reported as "AIR 1984 Supreme Court 1622";
(ii) "State of Punjab vs. Hari Singh & Ors.", reported as
"2009(1) JCC (Narcotics) 35";
(iii) "Directorate of Revenue Intelligence vs. Mohd. Anwar
Khan", reported as "2013 (3) JCC (Narcotics) 120";
(iv) "Babu and others vs. State of Uttar Pradesh", reported
as "AIR 1983 Supreme Court 308".
13. I have given my considered thoughts to the arguments
addressed by the Ld. Addl. PP for the State / Appellant and the
arguments advanced by the Ld. Defence Counsel. I have also
carefully perused the trial court record and the impugned
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judgment, dated 30.03.2015. I have also gone through the
various judgments, cited by the Ld. Defence counsel, in his
defence.
14. Perusal of the record shows that the FIR in the present
case was registered 02.09.94 at 11.30 p.m., on the complaint
of SI R.D. Sharma, incharge, Police Post Railway Station
Kishan Ganj, Delhi, under Sections 147/148/149/353/332/186
IPC and Sections 141/174 of The Railways Act, 1989. After
completion of investigations, the charge sheet was filed in the
court on 09.01.1995 and the accused were summoned to face
the trial, on 06.07.1995.
15. From the trial court record, it appears that the Ld. Trial
Court had taken the cognizance for all the offences, including
the offences punishable under Section 141 & 174 of The
Railways Act, 1989, on the basis of the complaints under
Section 195 Cr.P.C., Ex.PW16/B & Ex.PW16/C. Since the
necessary complaints have been filed by the concerned
officials of the Delhi Police and the Indian Railways, under
Section 195 Cr.P.C., for taking cognizance of the offences,
under the Indian Penal Code, as well as for the offences under
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The Railways Act, 1989, I do not find any merit in the
arguments of the Ld. Defence counsel that the cognizance
taken by the Ld. Magistrate in the present case was barred
under the provisions of Section 180F of The Railways Act,
1989.
16. The second contention of the Ld. defence counsel is that
there are a large number of material contradictions in the
depositions of the witnesses and during the examination of the
accused on 14.08.2008, u/s. 313 Cr.P.C., the material
evidence brought on record by the prosecution, during the trial,
was not put to the accused for his explanation and therefore,
the same cannot be considered by the court to reverse the
findings of the Ld. Trial Court.
17. It has been held by the Hon'ble Supreme Court, in case
titled as "Sharad Birdhichand Sarda vs. State of
Maharashtra" (Supra), as relied by the Ld. defence counsel,
as under :
142. Apart from the aforesaid comments there is one
vital defect in some of the circumstances mentioned
above and relied upon by the High Court, viz.
Circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and
17. As these circumstances were not put to the
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appellant in his statement under Section 313 of the
Criminal Procedure Code they must be completely
excluded from consideration because the appellant
did not have any chance to explain them. This has
been consistently held by this Court as far back as
1953 where in the case of Hate Singh Bhagat Singh
v. State of Madhya Bharat AIR 1953 SC 468 this
Court held that any circumstance in respect of which
an accused was not examined under Section 342 of
the Criminal Procedure Code cannot be used against
him. Ever since this decision, there is a catena of
authorities of this Court uniformly taking the view that
unless the circumstance appearing against an
accused is put to him in his examination under
Section 342 or Section 313 of the Criminal Procedure
Code, the same cannot be used against him. In
Shamu Balu Chaugule v. State of Maharashtra,
(1976) 1 SCC 438 : (AIR 1976 SC 557) this Court
held thus :
"The fact that the appellant was said to be
absconding, not having been put to him under Section
342, Criminal Procedure Code, could not be used
against him."
143. To the same effect is another decision of this
Court in Harijan Megha Jesha v. State of Gujarat, AIR
1979 SC 1566 where the following observations were
made :
"In the first place, he stated that on the personal
search of the appellant, a chadi was found which was
found which was bloodstained and according to the
report of the serologist, it contained human blood.
Unfortunately, however, as this circumstance was not
put to the accused in his statement under Section
342, the prosecution cannot be permitted to rely on
this statement in order to convict the appellant."
144. It is not necessary for us to multiply authorities
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on this point as this question now stands concluded
by several decisions of this Court. In this view of the
matter, the circumstances which were not put to the
appellant in his examination under Section 313 of the
Criminal Procedure Code have to be completely
excluded from consideration.
(emphasis supplied by me)
18. It is also held by the Hon'ble Supreme in case titled as,
"State of Punjab vs. Hari Singh & Ors." (Supra), as relied
by the Ld. defence counsel, as under :
"31. What is the object of examination of an
accused under Section 313 of the Code ? The
section itself declares the object in explicit language
that it is "for the purpose of enabling the accused
personally to explain any circumstances appearing
in the evidence against him". In Jai Dev v. State
of Punjab (AIR 1963 SC 612) Gajendragadkar, J.
(as he then was) speaking for a threeJudge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus :
"The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
32. Thus it is well settled that the provision is mainly intended to benefit the accused and as its State Vs. Om Parkash & another (CA 04/15) Page 10 of 17 Special Judge, CBI01, Central, Delhi 11 corollary to benefit the court in reaching the final conclusion.
33. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of subsection (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause
(b) of the subsection it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
(emphasis supplied by me)
19. In the present case, during the trial, the prosecution has examined the injured police officials, namely, ASI Ravi Karan and HC Naresh Kumar, as PW12 & PW13 and both these witnesses have deposed that on the date of incident, a mob of 500 to 600 public persons were siting on the railways track and they had stopped 'Tufan Udhan Abha Express' train and the SHO tried to make them understand that they should leave the track and allow the train to go to its destination, but, they did not agree with the SHO and thereafter, the SHO ordered them State Vs. Om Parkash & another (CA 04/15) Page 11 of 17 Special Judge, CBI01, Central, Delhi 12 to remove those persons from the track and thereafter, those persons started throwing stones on the police officials. Both of them have also deposed that 23 such stones hit them, due to which they suffered injuries. These two witnesses have also identified the accused persons / respondents, during the trial and have stated that they were also present at the spot.
20. PW1 ACP Ved Pal Rathi; PW7 ACP Ashok Saxena and PW9 SI Kitab Singh, have also specifically deposed about the incident and have stated that on 02.08.94, when they got the wireless message regarding the stoppage of 'Tufan Udhan Abha Express' train at Kishan Ganj Railway Station, they reached the spot with their staff and they found that the aforesaid train was stopped and a crowd of about 500600 persons was agitating before the train. All the three witnesses have deposed that ACP Sadar Bazar S. Mohan Kudesia and ACP Ved Pal announced the assembly of persons, as an unlawful assembly and ultimately, a lathi charge was done by the police force to disburse the crowd, on which the mob present at the spot started pelting stones on the police officials, due to which several police officials suffered injuries. State Vs. Om Parkash & another (CA 04/15) Page 12 of 17 Special Judge, CBI01, Central, Delhi 13
21. PW7 Ashok Saxena has categorically stated that accused Om Prakash Kaushik and his son Manoj Kaushik, along with other persons, were raising slogans against the government and the electricity department and they were standing in front of the 'Toofan Udhan Abha Express' train and had prevented the same from leaving for its destination and they were telling that unless the electricity was restored in the colony, they will not allow the train to move. PW7 Ashok Saxena has also categorically stated that accused Om Prakash was leading the mob and instigating the mob to break the hosepipe of the train and at his instance, the hosepipe of the train was broken by the mob. Thereafter, announcement was made that the assembly was declared unlawful and they were directed to disburse immediately. But, despite the said call, the mob had not disbursed and thereafter, the minimum force was used to remove the mob from the track, by using physical force. Thereafter, the mob started pelting stones on the police force. He had also identified the accused persons in the court and had stated that the accused were apprehended by the police officials at the spot.
22. Perusal of the record further shows that the evidence on State Vs. Om Parkash & another (CA 04/15) Page 13 of 17 Special Judge, CBI01, Central, Delhi 14 record, as deposed by aforesaid prosecution witnesses, regarding the instigation of the mob by the accused persons, their presence at the spot, instigation of the mob by them to break the hosepipe of the train and instigation by them for pelting stones on the police officials, have not been put to the accused persons in their statements, recorded on 14.08.2008, u/s 313 Cr.P.C. Even the complaints under Section 195 Cr.P.C., Ex.P2W.16/B & Ex.PW.16/C, the medical evidence, like M.L.C.s Ex.PW.15/A, Ex.PW.15/B and the fact of registration of DD No. 22 Ex.PW.14/A, the fact of arrest of the accused persons at the spot, have not been put to them, for their explanations.
23. Furthermore, the impugned judgment has clearly pointed out various shortcomings / contradictions in the prosecution case and therefore, it would not be proper for this court to interfere in the findings of the Ld. Trial Court.
24. It has been held by the Hon'ble Supreme Court in case reported as "Babu and others vs. State of Uttar Pradesh" (Supra), as relied by the Ld. Defence counsel, as under : State Vs. Om Parkash & another (CA 04/15) Page 14 of 17 Special Judge, CBI01, Central, Delhi 15
18. About the time of occurrence also the High Court reversed the finding of the Sessions Court that the possibility was that Dhani Ram was done to death in the early hours of 8th October before he had gone to ease himself. The reasons given by the Sessions Court appear to be more plausible on the materials on the record. In any case, even if two views were possible, the High Court should not have interfered with the conclusions arrived at by the Sessions Court unless the conclusions were not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the Appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The Appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. This Court in State of U.P. v. Samman Dass, (1972) 3 SCR 58 :
(AIR 1972 SC 677) dealing with a similar situation laid down the following postulates (para 32 of AIR) :
" There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal. Firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind, especially when the accused has been acquitted by the Court below : secondly, if two views of the matter are possible, a view favourable to the accused should be taken : thirdly, in case of acquittal by the trial Judge, the appellate Court State Vs. Om Parkash & another (CA 04/15) Page 15 of 17 Special Judge, CBI01, Central, Delhi 16 should take into account the fact that the trial Judge had the advantage of looking at the demeanour of witnesses : and fourthly, the accused is entitled to the benefit of doubt. The doubt should, however, be reasonable and ....... should be such which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy - though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given."
(emphasis supplied by me)
25. It is also held by the Hon'ble Supreme Court in case reported as "Directorate of Revenue Intelligence vs. Mohd. Anwar Khan" (supra), as relied by the Ld. defence counsel, as under :
8. The principles governing the scope of interference in an appeal against acquittal are well settled. The Supreme Court had summarized these principles in the case of Chandrappa and Ors. vs. State of Karanataka, reported as 2007, Crl. L.J., 2136, when it had observed that the Code of Criminal Procedure, 1973 puts no limitation or restriction on the power of the courts to reappreciate or review the evidence upon which the order of acquittal is founded. However, an appellate court must bear in mind that in case of an acquittal, there is a double presumption in favour of the accused. The fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law coupled with an acquittal by a trial court reaffirms the innocence of the accused. State Vs. Om Parkash & another (CA 04/15) Page 16 of 17 Special Judge, CBI01, Central, Delhi 17 Lastly, the Supreme Court had held that when two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the appellate court should not disturb the finding of acquittal recorded by the trial court.
(emphasis supplied by me)
26. In view of the evidence on record and the law laid down by the Hon'ble Supreme Court, as discussed above,I am of the considered opinion that no interference is required by this Court and therefore, the present appeal is hereby dismissed, being devoid of any merits.
It is ordered accordingly.
A copy of this judgment along with the Trial Court record be sent back to the trial court, for information.
The record of the present appeal be consigned to record room, after due compliance.
Announced in the Open Court on 19 day of March 2016 th BRIJESH KR. GARG SPECIAL JUDGE CBI01 CENTRAL DISTRICT/DELHI State Vs. Om Parkash & another (CA 04/15) Page 17 of 17 Special Judge, CBI01, Central, Delhi