Delhi District Court
State vs . Mahi Pal on 4 February, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST DELHI
STATE Vs. Mahi Pal
FIR No. : 440/1994
U/SEC : 186/332/353/34 IPC
PS : Hari Nagar
Unique Case ID No.: 02401R0028181994
JUDGMENT
Serial no. of the case 370/II/94 Date of commission of offence '24.07.1994 Date of institution of the case '01.12.1994 Name of the complainant SI Ranvir Singh
Name of accused, parentage &1. Mahi Pal Singh s/o Ram Charan r/o
address BA-121B, Janak Puri, Delhi
2. Jai Pal Singh s/o Ram Charan r/o WZ-
4, Guru Nanak Pura, Hari Nagar, Delhi
3. Chander Sen s/o Ram Phool Singh r/o
Village Chatt Naura, Police Station
Babu Garh, Chavani, District
Ghaziabad, Uttar Pradesh.
Offence complained of or proved Sections 186/332/353/34 IPC
Plea of the accused Pleaded not guilty
Date of arguments 29.01.2011
Final order Accused persons are acquitted
Date of Judgment '04.02.2011
1. The case of the prosecution is as follows: On 24.07.1994 SI Ranvir Singh was on patrolling duty on the motorcycle number DDW alongwith Ct. Ganga Saran. At about 12:50 AM they reached BA- Block Janak Puri and they met Ct. Virender. Ct. Virender informed SI Ranvir Singh that he was on duty at the DDA Market picket. He further informed Ct. Virender that at about 12:30 AM the accused Jai Pal alongwith another person who were under the influence of alcohol abused him and gave him 2-3 slaps. On hearing about this incident, SI Ranvir Singh alongwith Ct. Virender and Ct. Ganga Saran reached the house of the accused Jai Pal at BA-121B, Janak Puri for making inquires at about 01:00 AM. The accused Jai Pal is alleged to have abused SI Ranvir Singh. It is also alleged that all the three accused persons manhandled SI Ranvir Singh and tore his uniform. Thereafter information was sent to police station Hari Nagar SI Dalel Singh alongwith Ct. Mukesh came to the spot. The accused Chander Sen and Mahipal were arrested at the spot. The accused Jai Pal was arrested the next day. On completion of investigation chargesheet was filed against the accused on 01.12.1994.
2. Copies were supplied to the accused persons. And subsequent to the compliance with the provision of Section 207 of CrPC, charge for the offences punishable under sections 186/332/353/34 IPC was framed against the accused on 26.11.1996 to which accused persons pleaded not guilty and claimed trial.
3. After framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined five witnesses. Thereafter, the statement of the accused under section 313 Cr.P.C. was recorded on 29.01.2010 wherein the accused stated that they had been falsely implicated and that they were innocent. The accused Jai Pal and accused Mahipal further stated in their statement under section 313 CrPC that they have been falsely implicated because they refused to give milk, ghee and paneer free of cost to the police officials from their milk dairy. The accused Chander Sen in his statement under section 313 CrPC stated that at the time of incident he was sleeping in WZ-4, Guru Nanak Pura, Hari Nagar Delhi which was the house of accused Jai Pal as a guest. The accused opted not to lead defence evidence.
4. The five prosecution witnesses that were examined during the course of the trial are as follows:
I. PW1SI Ranveer Singh, the complainant II. PW2 Ct. Virender III.PW3 Ct. Mukesh Kumar IV.PW4 Ct. Ganga Saran V. PW5 Retd. SI Dalel Singh, the IO of this case.
6. I have heard the rival submissions at Bar and have gone through the records of this case.
7. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is also a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, the prosecution is supposed to stand on its own legs and it cannot derive any benefit, whatsoever, from the weaknesses, if any, in the defence of the accused. It is also a settled proposition that the burden of proof of the allegations against the accused in a criminal trial throughout the course of the trial rests entirely upon the prosecution and never shifts to the accused. Accused is entitled to the benefit of every reasonable doubts in the prosecution story.
8. Before proceeding further, the aspect of the required sanction under section 195 CrPC for the offence under section 186 IPC is to be taken note of. According to section 195 CrPC cognizance of the offence under section 186 IPC can be taken of only on the complaint in writing of the concerned public servant or some other public servant to whom he is adminisitratively subordinate. In the case at hand, the sanction under section 195 CrPC as per the case of the prosecution was given by Inspector B.S. Yadav the then SHO of Police Station Hari Nagar.
Inspector B.S. Yadav did not appear as a witness in this case. Ld. APP for the State submitted that the non examination of the sanction of the authority would not have any adverse effect on the case of the prosecution qua section 186 IPC. This contention of Ld. APP for the State is justified in the light of the decisions of the Apex Court reported as State, CBI Hyderabad Vs. Edwin Devasahyam AIR 2007 SC 2507. This was the case under the Prevention of Corruption Act 1988 where the sanctioning of authority was not examined by the prosecution during the course of the trial. The conviction of the accused was challenged, inter alia, on the ground that the sanctioning authority had not stepped into the witness box to prove the complaint under section 195 CrPC. It was held by the Apex Court that the non- examination of the sanctioning authority was not fatal to te prosecution case when the sanction order had been placed on record and the same contained the details showing application of mind by the concerned authority. In this connection, there is yet another judgment of the Apex Court holding that non-examination of the sanctioning authority is not at all fatal to the prosecution case. This judgment is reported as State of Madhya Pradesh Vs. Jiya Lal 2009 (4) RCR Criminal 137. It was observed by the Apex Court: "The sanction order was clearly passed in the discharge of a routine official functions and hence there is a presumption that the same was done in a bonafide manner. It is of course open to the respondent to question the validity of the sanction before the Special Judge, but there is no requirement for the District Magistrate to be examined as a witness by the prosecution." Although the aforesaid two judgments were in the context of the sanction required under the Prevention of Corruption Act; yet the law of the land has laid down thereunder would, of course, applied to the instant case as regards the sanction under section 195 CrPC.
9. Having held that the non-examination of the sanctioning authority is not fatal to the prosecution case; what remains to be determined whether the sanction was validly given. It bears repetition to state that in the abovementioned case of State of Madhya Pradesh Vs. Jiya Lal it has been held that it is open to an accused to question the validity of the sanction under section 195 CrPC. On record the complaint under section 195 CrPC is addressed to shriman mahodya. As per section 195 CrPC, cognizance of the offence can not be taken of except on a complaint in writing by a public servant concerned or some other public servant to whom he is administratively subordinate. Section 2(d) of CrPC defines complaint as allegations made orally or in writing to a Magistrate with a view to taking action under the Code. Therefore the complaint has to be made specifically to a Magistrate. The words Shriman mahodya does not necessarily mean a Magistrate as referred to in section 2(d) of CrPC. The words Shriman mahodya may also mean even a person superior in hierarchy in the police department or in the Executive Branch of the Government. Criminal law is required to be construed strictly and the benefit of any reasonable doubt has to go to accused. A reasonable doubt has arisen on this score and the benefit of this must go to the accused. Ld. APP for the State during the course of the arguments relied upon the second page of the sanction under section 195 CrPC and referred to the word "court" as reflected therein. It was his contention that the mention of the word "court" in the second page of the sanction under section 195 CrPC removes the lacuna. The mere mention of the word "court" on the second page of the sanction under section 195 CrPC does not at all mean that the same is addressed to a Magistrate as required specifically by section 2(d) CrPC. In my view the mere mention of the word "court" on the second page of the sanction under section 195 CrPC does not remove the lacuna that is attached to this sanction order. I therefore hold that the sanction that has been given under section 195 CrPC has not been given validly.
10.In the case at hand, it is an admitted fact of the prosecution that PW2 Ct. Virender while he was at the picket had a wireless set in his possession. This is amply reflected in the cross examination of PW1 SI Ranvir Singh. SI Ranvir Singh in his cross examination on 03.05.2010 had stated "the wireless set was at the picket. The set was in the name of Ct. Virender." Further as per the case of t he prosecution the accused Jai Pal and Chander Sen had met Ct. Virender at about 12:30 AM at night and allegedly slapped him and abused him. PW1 SI Ranvir Singh met Ct. Virender at 12:50 AM at night. These timings are reflected in the rukka that is the own document of the prosecution. Therefore, the question that arises is why when Ct. Virender who admittedly had a wireless set in his possession did not inform the police station or any of his senior officers through a wireless message by using his wireless set. I fail to understand as to what was Ct. Virender doing for 20 long minutes after he had been allegedly humiliated, abused and slapped by persons of the locality. Why did he not convey the information about the incident of the accused Jai Pal and Chander Sen having abused him and slapped him immediately to the police station. These are questions which have gone entirely unexplained by the prosecution.
11.Further, PW1 SI Ranvir Singh in his evidence states that when he reached the spot he was informed by Ct. Virender that the accused Chander Sen and Jai Pal had slapped him and abused him and he thereafter alongwith Ct. Virender and Ct. Ganga Saran went to the house of the accused situated at BA-121B, Janak Puri. PW1 SI Ranvir Singh further stated in his cross examination that he had given information about the incident involving Ct. Virender and that he was going to the house of the accused via wireless message to the police station at 01:07AM. Entirely contradicting this piece of testimony of PW1 SI Ranvir Singh, PW4 Ct. Ganga Saran in his cross examination admitted that although SI Ranvir Singh was having a wireless set in his hand, yet he did not flash out any message from the wireless set about the incident. Still further, even if it be assumed that the testimony of PW1 SI Ranvir Singh as regards sending a wireless message at 01:07 AM about the incident and about the fact that they were going to the house of the accused is entirely correct; and that the testimony of PW4 Ct. Ganga Saran in this regard is false; the question that arises is why no DD entry was recorded at the police station as soon as the wireless message was received at the police station at 01:07 AM. As per the own case of the prosecution the first telephonic information was received at te police station vide DD No. 28A at about 01:25 AM. DD No. 28A is Ex. PW5/A. This document reflects that the information was given by an unknown person and not by a police person from his wireless. On the basis of evidence led on record, I am convinced that no information was sent by Ct. Virender who had allegedly abused and slapped by the accused Jai Pal and Chander Sen between 12:30 AM to 12:50 AM despite the fact he had a wireless set in his hand. On te basis of the evidence on record I am also convinced that PW1 SI Ranvir Singh also never sent any wireless message to the police station at 01:07 AM about the incident involving Ct. Virender and about them going to the house of the accused. In my view the assertion of PW1 SI Ranvir Singh in this regard in his cross examination is not correct in view of the overwhelming evidence going against him. Therefore, the common sense does tell us that had the incident actually taken place as claimed by police personnel, no policemen worth his honour and self respect would have kept quite for one long hour and not sent the message across despite the fact that all the police persons had a wireless set in their possession.
12.It is the assertion of the prosecution witnesses and particularly PW2 Ct. Virender that the accused Jai Pal and Chander Sen were heavily intoxicated at the time of the incident. It is further the assertion of the prosecution that the accused Jai Pal and Chander Sen under the influence of alcohol had not only misbehaved and manhandled PW2 Ct. Virender but also PW1 SI Ranvir Singh. PW2 Ct. Virender Singh when cross examined had replied that the accused Jai Pal and Chander Sen were medically examined by the IO for the reason that they were under the influence of alcohol. And he denied the suggestions of the defence that the accused Jai Pal and Chander Sen were not medically examined. However the record of the present case speaks otherwise. In the entire judicial file there is no MLC of the accused Jai Pal and Chander Sen. The MLC of the accused Jai Pal and Chander would have revealed whether they were intoxicated or not. Even in the chargesheet it is not at all mentioned by the prosecution that the accused Jai Pal and Chander Sen were medically examined by the IO after the arrest. The IO SI Retd. Dalel Singh was examined as PW5. In his entire oral testimony it has nowhere come that the accused Jai Pal and Chander Sen were medically examined as they were under the influence of alcohol. PW5 SI Retd. Dalel Singh in his oral evidence also does not state that when he reached the house of the accused at BA-121B, Janak Puri, he found the accused Jai Pal and Chander Sen intoxicated. Or for that matter PW1 SI Ranvir Singh who had reached the house of the accused at about 01:00 AM, also never stated in his evidence that when he reached the house of the accused, the accused Jai Pal and accused Chander Sen were under the influence of alcohol. PW1 SI Ranvir Singh has given a hearsay evidence to the effect that he was told by PW2 Ct. Virender that the accused Jai Pal and Chander Sen were intoxicated. Such hearsay evidence is not admissible. The circumstances of the present case and the overwhelming evidence going against prosecution as discussed hereinabove in this paragraph itself, convinces me fully that the assertion of Ct. Virender and that of the prosecution that the accused Jai Pal and Chander Sen were intoxicated at the time of the incident is entirely false and cannot be believed.
13.Next, immediately after coming to know about the incident at the police picket, PW1 SI Ranvir Singh alongwith PW2 Ct. Virender and PW4 Ct. Ganga Saran reached the house of the accused. When questioned in the cross examination as to how did they know the precise location of the house of the accused; PW1 SI Ranvir Singh replied that all of them had already known about the precise location of the house of the accused in Janak Puri. It seems as if the accused Jai Pal was such a big person of the locality that all the police persons knew about him. However, entirely contradicting himself further in his cross examination PW1 SI Ranvir Singh stated in his evidence that he was led into the house of the accused Jai Pal by none else but PW2 Ct. Virender. All the three material witnesses of the prosecution namely PW1 SI Ranvir Singh, PW2 Ct. Virender and PW4 Ct. Ganga Saran have admitted in their cross examination that they knew it very well that the accused Jai Pal was running a milk dairy. PW4 Ct. Ganga Saran has admitted in his cross examination that the accused persons were running a milk dairy at the place of the incident. PW2 Ct. Virender also admits that the accused were running a milk dairy in BA Block Janak Puri and PW1 SI Ranvir Singh has also given a similar reply in his cross examination. The prosecution may very well argue that the abovementioned discrepancy which occurs in the cross examination of PW1 is minor in nature. However, even this minor discrepancy in conjunction with the other circumstances that are going against the prosecution assume grave proportions. Even the prosecution would not deny that the police persons who had deposed against the accused knew about the exact location of the house of the accused precisely because of the fact that the accused were running a milk dairy in BA Block Janak Puri. This may indirectly suggest that the assertion of the accused that the police personnel used to take dairy products free of cost from them and on their refusal this case has been falsely planted upon them is correct. As if to prove this suggestion of the defence factually correct, the police witnesses of the prosecution have not at all denied the suggestion that they used to take dairy products from the dairy of the accused without making the payment to the accused. PW2 Constable Virender when cross examined by the defence as to whether he used to take dairy products from the dairy of the accused without making the payment has given a very interesting reply. PW2 Constable Virender in his cross examination had replied, "I do not know, whether I Virender Singh and SI Ranveer Singh and the other staff used to take milk and ghee from the dairy of the accused without making the entire payment". This reply does suggest that even PW2 Constable Virender was not sure of himself as to whether he used to indulge in such illegal practices. This reply of PW2 Constable Virender is indeed very very unusual and a novel one. This is not the end of it. Even PW1 SI Ranvir Singh in his cross examination has given a evasive reply by stating that he does not know whether Rs. 20,000/- was taken from the accused persons. One can make these answers as an implied admission by the police personnel of the alleged illegal acts which they had been allegedly doing.
14.There is also a material discrepancy in the prosecution evidence as regards the sequence of events leading upto the incident in question. PW1 SI Ranvir Singh and PW2 Constable Virender have stated in their evidence that they had met in the mini market of DA Block Janak Puri and it was then that they proceeded to the house of the accused. However PW4 contradicting PW1 and PW2 stated in his examination in chief that they met Constable Virender near house number BA- 121B Janak Puri. If the assertion of PW4 Constable Ganga Saran is to be believed, the question that arises is what was PW2 Constable Virender doing near the house of the accused after he was allegedly slapped, humiliated and abused by the accused Jai Pal and accused Chander Sen; instead of reporting the matter to the higher authorities or to the police station from the wireless which he as in his possession. There is another question which has been left unanswered. If PW2 Constable Virender was found near the house of the accused when PW1 and PW4 met him; how and under what circumstances and for what purpose had he reached near the house of the accused from the police picket where he was posted for duty. Entirely contradicting himself PW4 Ganga Saran in his cross examination stated that PW2 Constable Virender was not found near the house of the accused when he alongwith SI Ranvir Singh had met him.
15.It has come in the prosecution evidence that PW1 SI Ranvir Singh alongwith PW4 Ct. Ganga Saran were on patrolling duty. It has also come in the prosecution evidence that PW2 Ct. Virender at the time of the incident was on duty at the police picket BA Block Janak Puri. If they were on duty away from the police station they ought to have made their departure entries in the police station. However, no DD number vide which they had left for the patrolling duty or the duty at the police picket had been brought on record.
16. The seizure of the torn uniform that belonged to SI Ranvir Singh is also under a cloud of doubt. The prosecution witnesses who are all police witnesses have deposed that SI Ranvir Singh handed over his torn uniform to IO SI Dalel Singh and the same was seized vide seizure memo exhibited as Ex. PW1/B and the seal was put on the same. It has gone entirely unexplained by the prosecution as to what happened to the seal thereafter and in whose custody the same remained. The possibility of the seal having been misused to falsely plant the uniform as allegedly torn by the accused cannot certainly be ruled out, particularly in the light of the circumstances that is going against the prosecution in the instant case.
17.PW1 SI Ranvir Singh in his evidence stated that when he reached the house of the accused, the same was opened by accused Jai Pal. PW1 SI Ranvir Singh admittedly as per his own testimony had gone to make inquiries from accused Jai Pal. When accused Jai Pal had met him at the gate of his house, inquiries could have been done from him then and there. The accused Chander Sen could also have been called down stairs to make the necessary inquiries as desired. However, the policemen reached the first floor of the house of the accused in the middle of the night. However, in what circumstances did they reach the first floor of the house of the accused despite knowing fully well that female members in the house would be sleeping. It seems that the police persons perhaps thought that under the garb of their police powers they could do anything and everything.
18.On the basis of the prosecution evidence and the facts and circumstances of this case I find that the case of the prosecution is replete with many reasonable doubts. It does appear that the accused have been falsely implicated with an ulterior motive.
19.Before parting with this judgment there is one aspect of the present matter that is required to be noticed. All the police persons who had entered the house of the accused were fully armed. PW1 SI Ranvir Singh had a revolver/pistol in his hand. Similarly Constable Virender also had a danda in his hand. And all of them were in their police uniforms. To a common sense mind it does not appear probable that accused persons who had no criminal history would one by one approach PW1 SI Ranvir Singh get entangled with him and tear his uniform without even a whisper of protest by them. It is also improbable that the police persons who were three in number, armed and who were in police uniform would not have done anything to ward off the alleged physical assaults by the accused persons.
20.In view of the aforesaid discussion, the accused persons stand acquitted of the offences Under Sections 186/353/332/34 IPC. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
th
ON 04 February, 2011 METROPOLITAN MAGISTRATE
DELHI