Delhi District Court
State vs Jitender Mahajan And Ors on 14 December, 2023
IN THE COURT OF MS. VIDHI GUPTA ANAND,
ACMM-01, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
CR Cases - 9/2023
CNR No. DLCT12-000122-2023
FIR No.383/21
PS : Shahdara
State Vs. Jitender Mahajan & Ors.
CR Case No. : 09/2023
CNR No. : DLCT12-000122-2023
Date of commission of offence : 18.11.2021
Date of institution of the case : 11.05.2022
Name of the complainant : Sansar Chand
Name of accused persons and : (1) Jitender Mahajan
addresses S/o K.K. Mahajan
R/o 1/7049, Gali no.5,
Shivaji Park, Shahdara,
Delhi.
(2) Suman Lata Nagar
W/o Dharamveer Nagar
R/o 1/6507, East Rohtash
Nagar, Shahdara, Delhi
(3) Dharamveer Nagar
S/o Ram Karan Nagar
R/o 1/6507, East Rohtash
Nagar, Shahdara, Delhi
(4) Kusum Tomar
W/o Dharmendra Kumar
R/o 1/7785, Gali no.01,
East Gorakh Park,
Shahdara, Delhi
Offence complained of : U/s 188/341/342/34 IPC
r/w Section 51 of Disaster
Management Act, 2005
State vs. Jitender Mahajan & ors. Page No. 1/50
FIR No. 383/21, PS : Shahdara
Plea of the accused persons : Pleaded not guilty
Final order : Accused persons namely
Jitender Mahajan,
Dharamveer Nagar and
Kusum Tomar convicted
for offences u/s
341/342/34 IPC.
Accused Suman Lata
Nagar acquitted for
offences u/s 341/342/34
IPC.
All accused persons
namely Jitender
Mahajan, Suman Lata
Nagar, Dharamveer
Nagar and Kusum Tomar
acquitted for offences u/s
188 IPC and 51 DMA
Date of judgment : 14.12.2023
JUDGMENT
1. This judgment shall decide and dispose off a case filed u/s 188/341/342/34 IPC r/w Section 51 of Disaster Management Act, 2005 (DMA) against Accused persons namely, Jitender Mahajan, Suman Lata Nagar, Dharamveer Nagar and Kusum Tomar, vide FIR No. 383/2021, PS Shahdara.
Brief facts of the Case
2. The allegations of prosecution against accused persons are that on 18.11.2021 at 1/5003, Loni Road, Balbir Nagar Extn., Shahdara, Delhi, at around 6.15 P.M. in the evening at the Wine Shop located at the above given address, some people came outside the shop with banners in their hands displaying Sharab ki State vs. Jitender Mahajan & ors. Page No. 2/50 FIR No. 383/21, PS : Shahdara dukan band karo. They tied a rope at the gate of the said liquor shop due to which some of the employees were confined inside the shop itself. Further, they started turning away the customers saying close this liquor shop. Allegedly, among these people were persons namely Jitender Mahajan, Dharmveer Nagar, Kusum Tomar, Suman Lata Nagar and Vinay Kamba.
As per the Prosecution case, the above named Accused persons had failed to comply with the Order no.12780- 879/SO/ACP/Shahdara dated 15.11.2021 issued by ACP Shahdara under Section 144 Cr.P.C. read with Notification DNS U11036/3/1978 (1) UTL dated 01.07.1978 of Govt. of India, Ministry of Home Affairs, New Delhi, issued regarding taking of all necessary precautionary steps to mitigate the possible detrimental effects of the spread of COVID-19 for public health, public safety and public order from 16.11.2021 to 30.11.2021, and accordingly the present FIR was registered u/s 188/341/ 342/34 IPC r/w Section 51 of Disaster Management Act, 2005 (DMA) against all the Accused persons on the same day itself.
Trial Proceedings
3. After completion of investigation in this matter, charge- sheet under Section 188/341/342/34 IPC r/w Section 51 of Disaster Management Act, 2005 (DMA) was filed in the Court by the IO against four Accused persons namely Jitender Mahajan, Dharamveer Nagar, Suman Lata Nagar and Kusum Tomar on 22.04.2022. Mention of another alleged person namely Vinay Kamba was made in the chargesheet stating that despite efforts no whereabouts of his could be found and as and when any knowledge about him is gained, necessary action shall be taken.
State vs. Jitender Mahajan & ors. Page No. 3/50FIR No. 383/21, PS : Shahdara Cognizance of the alleged offences was taken against all the Accused persons and they were summoned in the Court. After being admitted to bail, copies of the charge-sheet and annexed documents under Section 207 Cr.P.C. were duly supplied to the Accused persons.
4. Thereafter, on 27.09.2023, Notices of Accusation u/s 251 Cr.P.C. were served upon the Accused persons for the offences under Section 188/341/342/34 IPC r/w Section 51 of Disaster Management Act, 2005 (DMA), to which they pleaded not guilty and claimed trial. In their plea of defence, Accused persons stated that this is a false case against them and no such protest as alleged by the Prosecution was ever conducted by them and thus, Accused persons pleaded their innocence.
5. Moving ahead with the trial, the matter was taken up for recording of Prosecution evidence. It is pertinent to mention here that in total nine witnesses had been cited by Prosecution in the list of witnesses, out of which four were public witnesses, however, two of the public witnesses namely Karam Chand and Shashi Kumar remained untraceable and were therefore dropped vide order dated 02.11.2023. Thus, in order to establish its case against the Accused persons, Prosecution has examined seven witnesses i.e. ASI Babita, ASI Ravinder Kumar, HC Ravinder, Complainant Sansar Chand, Public Witness Anil Singh, Constable Naveen Yadav and ASI Manohar Singh.
The testimonies of the said witnesses is discussed briefly in the following paragraphs for easy reference.
5.1 PW1 ASI Babita : She was a formal witness being the State vs. Jitender Mahajan & ors. Page No. 4/50 FIR No. 383/21, PS : Shahdara Duty Officer in the concerned PS at the time of registration of FIR. Accordingly, she exhibited FIR No. 383/21, PS Shahdara dated 18.11.2021 as Ex.PW1/A and the endorsement made on the rukka prepared by the IO i.e. Ex.PW1/B. During her examination in chief, she deposed that on 19.11.2021, at about 9.20 P.M. Ct. Naveen had handed over a Rukka to her for registration of the case, on the basis of which she registered the present case.
5.2 PW2 ASI Ravinder Kumar : He was a formal witness being the Duty Officer in the concerned PS at the time of the alleged incident. He has deposed that on 18.11.2021 at about 07:13 P.M., he received a PCR call mentioning the address of the incident as 1/5003, New Wine Shop, Balbir Nagar wherein caller had informed that shutter of the said wine shop had been closed from outside and he along with other workers had been confined in the said shop by a mob of around 100 people. He further stated that he made an entry in the computer regarding the said information shared the same with ASI Manohar Lal for further course of action. He brought the roznamcha of the concerned PS for the month of November 2021 and exhibited the relevant entry of the said DD as Ex.PW2/A. During his cross-examination, he deposed that the DD entry was done based on a message received from District Control Room.
5.3 PW3 HC Ravinder, No. 608, Shahdara District, Delhi :
He was also a formal witness to the case. He brought the original order u/s 144 Cr.P.C. to the court and exhibited the photocopy of the same as Ex.PW3/A. He had also brought photocopy of State vs. Jitender Mahajan & ors. Page No. 5/50 FIR No. 383/21, PS : Shahdara sanction u/s 195 Cr.P.C. dated 20.04.2022 issued by the then ACP, Sub-Division Shahdara namely, Vijay Kumar Nagar and exhibited the copy of the same on record as Ex.PW3/B. 5.4 PW4 Sansar Chand : He is the most crucial witness to the case being the complainant/victim as well as the eye witness to the entire incident.
He deposed that on 18.11.2021 he was working as a manager in a liquor shop owned by M/s Original Appliance Private Ltd. At 1/5003, Loni Road, Shahdara, Delhi. He stated that on that day at around 6.15 P.M. a crowd of 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 and were also raising slogans saying Sharab ke theke band karo. He has specifically deposed that some people from the crowd who were holding a rope in their hands came in the front and closed the door of the liquor shop and tied the said rope on the door as a result of which he alongwith around 6-7 other people were locked inside the shop. He added that they also started chasing away the customers who were standing at the liquor shop at that time. He specifically named and identified Accused Jitender Mahajan as one of the the persons amongst those people who came in the front. Witness has deposed that he knew that person's name as Jitender Mahajan as people were telling him that he is the area MLA. He also correctly identified Accused Kusum Tomar and Accused Dharamveer Nagar who were present in the court, however, failed to identify Accused Suman Lata Nagar.
PW4 stated that he made 100 number call to the police and after some time police arrived at the spot and rescued them from State vs. Jitender Mahajan & ors. Page No. 6/50 FIR No. 383/21, PS : Shahdara the said liquor shop. He identified his complaint made to the police officials i.e. Ex.PW4/A, on the basis of which FIR was lodged. Further, he deposed that during the course of investigation, he also handed over one CD pertaining to the incident and certificate u/s 65 B of Indian Evidence Act. The Seizure Memo of the above said CD was exhibited as Ex.PW4/B and his certificate u/s 65 B of Indian Evidence Act was exhibited as Ex.PW4/C. Also, the CD which was stated to be handed over to the IO by PW4 was identified by him in the court and the same was exhibited as Ex.PW4/E. All the photographs contained in the said CD were opened in the open court and put to the witness upon which witness identified accused Jitender Mahajan and accused Kusum Tomar (identified only by face) vide Whats App image no.2021-11-19 at 12.44.27(2).jpeg and accordingly the same was exhibited as Ex.PW4/F. Witness also identified the spot of the incident in the said images.
Also, all the videos contained in the said CD were played in the open court and put to the witness. After watching the Whats App video no. 2021-12-01 at 4.57.34 PM.MP4, PW4 correctly identified accused Suman Lata by stating that the lady shown in the video is the same lady present in the Court today. Further, after watching the Whats App video no. 2021-12-01 at 4.53.21 PM.MP4, PW4 correctly identified the Accused Kusum Tomar by pointing a finger towards her in the open court and stating that she is the same person who is shown in the video using rope to tie up the gates of the above said liquor shop and also mentioned her name as Kusum Tomar.
State vs. Jitender Mahajan & ors. Page No. 7/50FIR No. 383/21, PS : Shahdara After completion of his examination in chief, witness was duly cross-examined by Ld. Counsel for the Accused persons.
During his cross examination, PW4 admitted that there were CCTV cameras installed at the liquor shop covering the interior and exterior of the liquor shop. He also specified the locations of the CCTV Cameras after looking at the site plan Ex.PW4/F (Since, another document has been exhibited as Ex.PW4/F, site plan shall be referred to as Ex.PW4/F1). Witness agreed to suggestion that the CCTV footages used to get stored in the DVR installed in the liquor shop and all the data was available with the senior officers of the Company. With respect to the seizure of the CCTV footages by the IO, he stated that during investigation IO did not ask him to provide the footage as available in the DVR of the CCTV cameras installed in the liquor shop. He further stated that he did not inform the IO that he can get the video footage of the CCTV cameras for the purpose of investigation.
PW4 further stated that the nearest police beat booth is about 200 meter away from the liquor shop in question. Regarding calling of the police, he stated that at around 6.15 P.M. when people gathered outside the wine shop, he immediately called up the owner of the shop Mr. Abhishek Aggarwal, on whose instructions, he immediately called up the Police at 100 number and within 20-25 minutes of his calling, the Police reached the spot.
PW4 further stated that the IO never demanded his mobile phone no. 9816900188 to seize the same for the purpose of investigation including examination of the video footage. As State vs. Jitender Mahajan & ors. Page No. 8/50 FIR No. 383/21, PS : Shahdara regards preparation of the CD Ex.PW4/B, he stated that the same was got prepared by him from the market and handed over to the IO. PW4 agreed to the suggestion that only one video footage showing being recorded from inside the shop and capturing the scene outside the shop was recorded by him in his phone and the rest of the video footages which show the scene from outside were not recorded by him and stated that they were captured and forwarded to him by his colleagues who were outside the shop. Further, witness deposed that when the police came at the spot they asked all the persons present outside the shop to move away and go and none of them was either apprehended or asked to accompany the IO to the Police Station. He also stated that the police party which came at the spot stayed there for only about 10-15 minutes and his statement was recorded at the spot itself.
Lastly, PW4 denied all the suggestions of Ld. Counsel for the Accused pertaining to falsity of the Prosecution case or false implication of the Accused persons on account of political rivalry.
5.5 PW5 Anil Singh : He is the only other eye-witness who has deposed in this matter. Even though he supported the Prosecution case in regard to the happening of the incident, he failed to identify the Accused persons in the court.
PW5 deposed that on 18.11.2021 at about 6.15 P.M., when he was present at the concerned liquor shop along with other workers, he saw that a group of people had gathered in front of the said shop and started raising slogans band karo band karo wine shop band karo. He further deposed that the above said persons also closed the doors of the said wine shop with the help State vs. Jitender Mahajan & ors. Page No. 9/50 FIR No. 383/21, PS : Shahdara of the rope from outside and he alongwith other co-workers were confined in the said liquor shop. Further, he has deposed that after some time police officials arrived at the shop and rescued them from the shop. PW5 deposed that he knew some names of the Accused persons i.e. Jitender Mahajan, Mahavir and Suman Lata. However, when the witness was asked to identify the Accused persons, he failed to identify even a single person and rather stated that persons who had wrongfully restrained/confined them were all men and none of them were women. After going though the videos and photographs contained in the CD Ex.PW4/E, witness identified the spot i.e. the liquor shop and the crowd which has gathered at the spot on the date of incident but failed to identify the accused persons.
During his cross examination by Ld. Counsel for the Accused persons, PW5 agreed to the suggestion that CCTV cameras were installed in the wine shop both inside and outside and its recording equipment were also installed in the wine shop itself. He further agreed to the suggestion that the video shown to him on 17.10.2023 is not from the recorded CCTV footage as available in the wine shop. PW5 further stated that the protest started at about 6.15 P.M., however, the Police came after 1.5 hours/2 hours. He stated that he had no idea to what time Sansar Chand, Supervisor called the Police but added that Sansar Chand called up the senior officers of the Company who (3-4 persons) arrived at the spot within 15-20 minutes. Further, PW5 stated that the door of the shop was opened after the police came. PW5 also stated during his cross-examination that the Police Chowki is hardly 200 meters, from wine shop where this incident happened.
State vs. Jitender Mahajan & ors. Page No. 10/50FIR No. 383/21, PS : Shahdara Lastly, he stated that 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.
5.6 PW6 Constable Naveen Yadav: He is a formal police witness who joined the investigation in the present matter with IO/ASI Manohar Lal. He deposed that on 18.11.2021 at around 06:15 P.M., IO asked him to join investigation and accordingly, he alongwith IO/ASI Manohar Lal went to the spot i.e. Wine shop, 1/5003, Loni Road, Shahdara where they found that a group of people had gathered at the wine shop and carrying out a protest in front of the wine shop and were raising slogans to close the said wine shop. He added that he also found that one rope was tied in front of the said wine shop. He further deposed that IO ASI Manohar Lal tried to pacify the situation and also removed the employees of the above wine shop from the said shop. He also stated that IO ASI Manohar Lal reduced the complaint of the complainant Sansar Chand into writing and handed over the said Tehrir to him (PW6) for registration of the FIR and accordingly, he immediately went to PS Shahdara, got the FIR registered and returned to the spot alongwith original Tehrir and the copy of FIR and handed it over to IO ASI Manohar Lal. He stated that thereafter, IO started investigation in the present case and made inquiries from the local inhabitants of the area and found that the accused persons including Jitender Mahajan were not present at the spot. Lastly, witness deposed that IO also pacified the public gathered at the spot and thereafter they returned to the PS. State vs. Jitender Mahajan & ors. Page No. 11/50 FIR No. 383/21, PS : Shahdara Nil cross-examination was recorded for this witness despite opportunity.
5.7 PW7 ASI Manohar Singh : He is the last witness presented in the Court by Prosecution to prove its case and one of the most important witnesses being the IO of the case.
He deposed that on 18.11.2021, at about 7.15 p.m. he received GD No. 0082A (Ex.PW2/A) informing that some people had gathered at Shop no. 1/5003, Balbir Nagar and had confined the workers of the said shop by closing down the gate of the said shop. On this information, he alongwith Ct. Naveen (PW6) went to the spot where they found that some people had gathered in front of the above said shop and 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 also a rope was tied in front of the said shop. He further deposed that after his arrival, the in-charge of the said wine shop namely, Sansar Chand (PW4/Complainant) opened the half closed shutter of the said shop and also removed the above said rope. He further deposed that Sansar Chand (PW4/Complainant) also gave his oral complaint to him which was reduced into writing by him in his own handwriting (Ex.PW4/A). Thereafter, he prepared tehrir/ rukka in his own handwriting vide Ex.PW7/A and got the FIR registered in the concerned PS through Ct. Naveen (PW6). After that he prepared the site plan of the spot Ex. PW4/F1 at the instance of the Complainant Sansar Chand. He added that after some time, Ct. Naveen returned to the spot and handed over to him the copy of the FIR along with original complaint. He further deposed that thereafter he started the investigation in the State vs. Jitender Mahajan & ors. Page No. 12/50 FIR No. 383/21, PS : Shahdara present case and reduced into writing the supplementary statement of the complainant Sansar Chand.
He further stated that he also searched for the accused persons in the nearby locality but all in vain. Thereafter, he alongwith Ct. Naveen returned to the PS where he recorded the statement of Ct. Naveen u/s 161 Cr.P.C.
He further deposed that on 20.11.2021, he again went to the spot and served notice u/s 91 Cr.P.C. (Ex.PW7/B) to the complainant to provide CCTV footage of the date of incident upon which complainant gave him the CD (Ex.PW4/E) alongwith one certificate u/s 65B of Indian Evidence Act (Ex.PW4/C) which he seized vide seizure memo Ex.PW4/B. Further, witness stated that he recorded the supplementary statement of Complainant and examined three other workers of the said shop namely, Anil Singh, Karam Chand and Shashi Kumar who were also present on the date of incident and had witnessed the incident. He specifically stated that during the course of investigation, he also made search of the Accused persons namely, Jitender Mahajan and found that he is the MLA of Rohtash Nagar; Accused Kusum Tomar, who was the Councilor of Babarpur; Accused Suman Lata Nagar, who is Councilor of Shahdara and Accused Dharamveer Nagar, who is husband of Accused SumanLata Nagar and is a BJP Leader. He also made search and made inquiry from complainant, about one of one accused namely, Vinay Kamba but all in vain. He deposed that complainant told him that he had wrongly given the name of Accused Suman Lata Nagar as Kusum Lata Nagar. He recorded the supplementary statement of the complainant in this regard.
State vs. Jitender Mahajan & ors. Page No. 13/50FIR No. 383/21, PS : Shahdara He further deposed that during the course of investigation, he obtained the order u/s 144 Cr.P.C. (Ex. PW3/A) and permission u/s. 195 Cr.P.C. from the then ACP (Ex.PW3/B). He also obtained certificate u/s 65B of Indian Evidence Act (Ex.PW7/C) regarding the computer generated FIR in the present case.
He deposed that after completion of the investigation, upon instructions of his seniors he filed the charge-sheet without arrest of the Accused persons. He admitted that he never made the Accused persons to join the investigation in the present case as his senior officers has directed him to file the charge sheet without arrest and therefore, he is not able to identify any of the accused persons.
During his cross examination, he admitted that he had not done any investigation regarding the make/model of the mobile phone and its IMEI number from which the video footage was copied on the CD Ex.PW4/E. On a specific question regarding issuance of any notice to complainant or the owners of the wine shop to provide the original disk containing the CCTV footage dated 18.11.2021, he stated that complainant informed him that there is no recording of CCTV footage and only a mobile phone recording is available therefore, he only took the CD containing recordings as part of his investigation.
He stated that after receiving GE no. 0082A, he did not inform the Beat Constable of the area or any police personnel posted at the nearest Chowki to reach the spot. He denied the suggestion that the Accused persons had not committed any offence u/s 188 IPC r/w Section 51 of Disaster Management Act, State vs. Jitender Mahajan & ors. Page No. 14/50 FIR No. 383/21, PS : Shahdara 2005(DMA). He further denied the suggestion that a false case has been hoisted on the accused persons for political reasons.
6. After examination of all the Prosecution witnesses, as mentioned above, Prosecution evidence was closed and statements of Accused persons were recorded u/s 313 Cr. P.C. whereby all incriminating evidence was put to the Accused persons.
All the Accused persons pleaded their innocence and denied the entire Prosecution case and stated that they have been falsely implicated and rather targeted on account of political vendetta.
Despite opportunity, Accused persons preferred not to lead any evidence in their defence and thus, the matter was taken up for final arguments.
Final Arguments
7. Ld. APP for the State as well as Ld. Counsel for the Accused persons vigorously argued in support of their respective cases while one praying for conviction of the Accused persons and maximum punishment to them, the other praying for honorable acquittal for all the Accused persons.
The contentions raised by Ld. APP for the State as well as Ld. Counsel for the Accused persons are summarized in the following paragraphs for quick perusal.
8. Ld. APP for the State argued his case for conviction of the Accused persons on the following grounds :
8.1 Ld. APP for the State briefly discussed the prosecution case stating that on 18.11.2021, a group lead by the Accused State vs. Jitender Mahajan & ors. Page No. 15/50 FIR No. 383/21, PS : Shahdara persons gathered in front of the wine shop and conducted a protest and locked the doors of the same thereby resulting in wrongful confinement of some persons as well as violation of restrictions which were placed in the area concerned vide order u/s 144 IPC.
8.2 Ld. APP for the State stressed that the case has been registered against all the Accused persons on the same day itself and there has been no delay in registration of the FIR.
8.3 Further, relying upon the testimony of the Complainant Sansar Chand, who is the main witness to the case, Ld. APP for the State argued that the Complainant has during his testimony in in the court identified all the Accused persons and supported his original complaint given to the Police.
8.4 Further, Ld. APP for the State argued that the incident in question has been affirmed by another public witness as well as the IO and other police witnesses who have all testified regarding the presence of the Complainant at the spot at the time of the incident, thus Ld. APP for the State stressed that the testimonies of the prosecution witnesses affirm that the Complainant was present at the spot and made 100 number call to the Police.
8.5 Further, it was argued by the Ld. APP for the State that the Complainant has identified the CD containing the video of the alleged incident as the same CD which he had handed over to the IO at the time of investigation. Further, it was put forward that the complainant has also identified his certificate u/s 65B of Indian Evidence Act as well as the Seizure Memo of the CD and thus, the same stands duly proved.State vs. Jitender Mahajan & ors. Page No. 16/50
FIR No. 383/21, PS : Shahdara 8.6 Relying upon the aforesaid video, Ld. APP for the State also put forward that the Complainant has identified Accused Kusum Tomar and Jitender Mahajan specifically in the said video.
8.7 Ld. APP for the State also stressed that in his cross examination, Complainant has told the location of the CCTV cameras installed in the wine shop and denied all the suggestions of the Ld. Counsel for the Accused persons pertaining to falsity of this case.
8.8 Ld. APP for the State argued that even after one of the public witness has turned hostile, it is settled in law that the conviction of the Accused can be secured on the basis of sole testimony of the Complainant/victim and in the present case, the Complainant stood firm on his stand and thus, there remains no doubt on his truthfulness. Hence, the case stands proved.
8.9 Lastly, Ld. APP for the State argued that in their statements u/s 313 Cr.P.C. all the Accused persons have stated that they have been falsely implicated in the present case on account of political vendetta, however, no question has been asked by the Ld. Counsel for the Accused persons to the Complainant as to which political party he belongs to, hence, no question of political vendetta or false implication arises as no motive has been established with the Complainant to falsely implicate the Accused persons.
With these arguments, Ld. APP for the State rested his case stating that sufficient evidence has been brought on record to establish the guilt of the Accused persons and thus they should State vs. Jitender Mahajan & ors. Page No. 17/50 FIR No. 383/21, PS : Shahdara be convicted for the offences u/s 188/341/342/34 IPC r/w Section 51 of Disaster Management Act, 2005.
9. On the other hand, Ld. Counsel for the Accused persons referred to minute details of the prosecution evidence to counter the prosecution case and to establish that the prosecution has been unable to prove the case against the Accused persons beyond reasonable doubts. Several aspects of prosecution evidence were argued upon by the Ld. Counsel for the Accused persons and the same are discussed in the following paragraphs under various heads.
9.1 No legally admissible digital evidence : Ld. Counsel for the Accused persons argued that a substantial piece of evidence in this matter could have been the CCTVs installed in the wine shop outside which the alleged protest had taken place as the same could have provided real time data of the incident; that is the exact time and date when the incident had taken place. However, no such CCTV footage has been seized by the IO for the reasons best known to him.
Referring to the testimony of the Complainant i.e. PW4 Sansar Chand, Ld. Counsel for the Accused persons stated that he has admitted that CCTV cameras were installed at the liquor shop covering interior as well as exterior of the shop and the online feed of the CCTV cameras was available with the senior officers of the company. He further admitted it to be correct that the said CCTV footage used to get stored in the DVR installed in the liquor shop and its password was also with the senior officers of the company. Further, Ld. Counsel for the Accused persons pointed out that PW4 has categorically stated that IO during State vs. Jitender Mahajan & ors. Page No. 18/50 FIR No. 383/21, PS : Shahdara investigation did not ask him to provide the footage as available in the aforesaid DVR and also the witness has stated that he did not inform the IO that the video footage of CCTV cameras can be taken for the purposes of investigation. Ld. Counsel for the Accused persons thereafter referred to the testimony of IO ASI Manohar Singh who has deposed as PW7 and argued that contradicting the complainant he has deposed that complainant had informed him that there is no recording of CCTV footage and only mobile phone recording is available so therefore, he took the CD containing the recording.
Further, Ld. Counsel for the Accused persons referred to the CD containing videos of the alleged incident which has been brought on record as PW4/E. Ld. Counsel for the Accused persons argued that the video and the photographs contained in the said CD bear neither any time stamp nor any date stamp and thus, have no confirmed timing or the date on which they were shot. Also, Ld. Counsel for the Accused persons argued that even though the certificate u/s 65B of Indian Evidence Act has been annexed by the complainant alongwith the said CD, the same is not relevant as it neither contains the IMEI number of the phone from which the said video/photographs were taken nor other details of the device from which videos were transferred to the CD.
Ld. Counsel for the Accused persons argued that it was not the complainant who should have given the certificate u/s 65B of Indian Evidence Act and rather it was the person who transferred the data into CD from the phone of the Complainant who should have given the certificate u/s 65B of the Indian Evidence Act.
State vs. Jitender Mahajan & ors. Page No. 19/50FIR No. 383/21, PS : Shahdara However, it was pointed out that neither any such person finds mention in the list of of witnesses filed by prosecution nor he has been examined by the Court. Ld. Counsel for the Accused persons argued that no evidence has been brought on record to prove that the alleged video/photographs contained in the CD Ex.PW4/E are not edited and have not been tampered with. Ld. Counsel for the Accused persons argued that the Complainant Sansar Chand is claiming ownership of only one video which he allegedly made from his phone while being inside the shop and rest of the videos have been prepared by and procured from unknown sources and therefore their authenticity is questionable.
With these submissions, Ld. Counsel for the Accused persons argued that there is no legally admissible video footage or photograph placed on record by prosecution and thus, there is no digital evidence of date, place and time of alleged incident on record. It was argued that the video footage brought on record by the prosecution are nothing more than junk as neither their source is known nor time and place where they were made.
9.2 Discrepancy in timings of the PCR call and the time of the incident : Referring to the testimony of PW2 ASI Ravinder Kumar, Ld. Counsel for the Accused persons stated that as per Ex.PW2/A i.e. the General Diary Entry with respect to the alleged incident, the PCR call has been made at 7.13 P.M.. Thereafter, referring to the testimony of the Complainant i.e. PW4 Sansar Chand, Ld. Counsel for the Accused persons stated that he has mentioned in his testimony that it was around 6.15 P.M. when people started gathering and protesting outside the shop. However, in his cross examination, PW4 has stated that he State vs. Jitender Mahajan & ors. Page No. 20/50 FIR No. 383/21, PS : Shahdara immediately called up owner of the shop Sh. Abhishek Aggarwal and thereafter, immediately upon his instructions called up police at 100 number and within 20-25 minutes of his call, Police reached at the spot. Ld. Counsel for the Accused persons argued that going by the timeline provided by the Complainant, it appears that the Police reached at the spot of the incident even prior to the making of the PCR call which questions the prosecution case.
Ld. Counsel for the Accused persons referred to the testimony of PW5 Anil Singh and stated that there is a discrepancy as regards the timings mentioned by the Complainant and PW5 as PW5 has stated that protest started at about 06.15 P.M. and police came after 1.5/2 hours whereas complainant has stated that protest stated at 06:15 P.M. and police arrived after 20-25 minutes of making the call. Also, reading out the testimony of PW6, Ld. Counsel for the Accused persons stated that he has deposed that at about 6.15 P.M., IO had asked him to join investigation in the present case and he alongwith the IO went to the spot of the incident which again questions the PCR call made at 7.13 P.M. Also, Ld. Counsel for the Accused persons argued that some clarity on the timings could have been provided by the owner of the wine shop i.e. Abhishek Aggarwal however, he was never examined by the Police and therefore, not brought in the witness box by Prosecution.
9.3 Absence of Accused persons from the spot : Ld. Counsel for the Accused persons argued that it is admitted by the IO as well as other police witnesses examined by prosecution that State vs. Jitender Mahajan & ors. Page No. 21/50 FIR No. 383/21, PS : Shahdara when they reached at the spot they did not find accused persons there. Ld. Counsel for the Accused persons further argued that it is questionable that despite knowing the identity of the Accused persons they were never made to join investigation by the IO.
9.4 Identification of the Accused persons : It was argued that as per prosecution evidence it is only the Complainant Sansar Chand who has identified three out of four accused persons in the court i.e. accused Jitender Mahajan, accused Kusum Tomar and accused Dharmvir Nagar and apart from him none of the prosecution witnesses have identified the Accused persons which itself creates doubt in the prosecution case. It was further argued that the only other public witness is Anil Singh who has failed to identify even one out of the four Accused persons. The witness Anil Singh has testified after looking at the accused persons in the court as well as through video conferencing that they were not the same persons who had committed the alleged offences.
Most importantly, IO has stated that as he had never arrested the Accused persons, he cannot identify them. Thus, Ld. Counsel for the Accused persons argued that mere identification of three of the Accused persons by the Complainant does not carry much weight as he himself appears to be an unreliable witness.
9.5 Legal aspects covering Section 188 IPC and 51 DMA:
With respect to Section 188 IPC i.e. violation of order promulgated by government servant, Ld. Counsel for the Accused persons argued that if there was any such prohibitory order issued u/s 144 Cr.P.C., people would have been detained by the IO and not just asked to leave. Further, it was argued that for State vs. Jitender Mahajan & ors. Page No. 22/50 FIR No. 383/21, PS : Shahdara completion of offence u/s 188 IPC and 51 DMA, persons violating laws have to be informed about the restrictions so that they can disperse, however no such steps have been taken by the IO to inform the accused and other persons that if they do not disperse the offence u/s 188 IPC shall be completed and action shall be initiated against them. Rather it was argued that none of the SOPs were followed by the IO. Thereafter referring to the offence of wrongful confinement, Ld. Counsel for the Accused persons referred to the examination in chief of the IO wherein IO has stated that after his arrival at the spot, in-charge of the wine shop namely Sansar Chand opened the half closed shutter of the said shop and also removed the rope. On the basis of this statement it was argued that from the statement of the IO it is manifest that Complainant was outside the shop and he could not have recorded the video from inside the shop. Further, it was argued that as the Complainant has himself removed the rope tied in front of the said shop, no case of wrongful confinement is made out as Complainant could have easily moved out of the shop.
Referring to the other general aspects, Ld. Counsel for the Accused persons argued that the witnesses have admitted that the police chowki is at the distance of around 200 meters from the place of the incident i.e. wine shop and despite that it is questionable that there was not only delay in calling of the police but also delay in reaching of the police at the spot. It was questioned that even though Section 144 Cr.P.C. had been invoked in the said area, no beat constable and no other police official came to the spot despite gathering of large number of State vs. Jitender Mahajan & ors. Page No. 23/50 FIR No. 383/21, PS : Shahdara people out side the shop.
With these submissions, Ld. Counsel for the Accused persons concluded his arguments stating that neither presence of the Accused persons at the spot is proved nor the actions leading to wrongful confinement are proved and thus prosecution has been unable to prove its case beyond reasonable doubts. Ld. Counsel for the Accused persons stated that only bits and pieces have been collected by the IO but the chain of circumstances has not been completed so much so that a case can be proved against the Accused persons and thus Accused persons deserves to be acquitted.
Ld. Counsel for the Accused later filed on record the following judgments to buttress his arguments in favour of the Accused:
S.no. Case Title Citation
1. Bhoop Singh Tyagi vs. State 2002 SCC Online
Del 277
2. Niharendu Datta Majumdar vs. 1939 SCC Online
Emperor Cal 153
3. In Re: Ramlila Maidan Incident (2012) 5 SCC 1
4. Fahad & Others vs. State Of Kerala 2022 SCC Online Ker 8760
5. Jeevanandham & Others vs. State 2018 SCC Online Mad 13798
6. Tammisetty Chakravarthy vs. State 2021 SCC Online Of Andhra Pradesh AP 1955
7. Krishnagowda & ors. vs. State of CRL.A. Karnataka No.635/2006 Supreme Court of India
8. Kallantavide Ramesan vs. State of CRL.A. Kerela No.1752/2006 State vs. Jitender Mahajan & ors. Page No. 24/50 FIR No. 383/21, PS : Shahdara Kerela High Court
9. Shanker vs. State of Madhya (2018)15 SCC 725 Pradesh
10. Vadivelu Thevar vs. State of Madras (1957) SCR 981
10. Submissions of both the sides have been patiently heard. Entire record including the complaint and testimonies, statements u/s 161 Cr.P.C. and the CD of the incident as well as certificate u/s 65B of the Indian Evidence Act have also been carefully perused.
The supporting authorities filed by Ld. Counsel for the Accused persons have also been thoroughly perused. While the judgments mentioned from serial no.1 to 6 in the table given above pertain specifically to offence u/s 188 IPC, the remaining judgments discuss the evidence to be brought in a criminal case by Prosecution and burden of proof upon it.
Appreciation of Evidence
11. There are two most important evidences in this matter, the authenticity and credibility of which, shall determine the fate of this matter; one, the testimony of the Complainant Sansar Chand and two, the video footages and photographs contained in the CD Ex.PW4/E.
12. Thus, at the outset, before delving into the relevancy, admissibility and credibility of other facts and evidence brought on record vis-a-vis the alleged offences, it is necessary to first deal with the question as to whether the CD containing the videos and photographs of the alleged incident can be read in evidence against the Accused persons or not?
State vs. Jitender Mahajan & ors. Page No. 25/50FIR No. 383/21, PS : Shahdara 12.1 Before going on to the facts, it is pertinent to understand the law on the aspect of secondary evidence, especially in case the evidence is electronic in nature. Section 65A and Section 65B of The Indian Evidence Act, 1872 (IEA) provide for special provisions as to evidence relating to electronic record and their admissibility.
12.2 Section 65A provides that The contents of electronic records may be proved in accordance with the provisions of section 65B. Thus, in order to determine the admissibility of the videos/photographs of the incident in question, it is indispensable to peruse section 65B of the IEA titled as Admissibility of the Electronic Records. The section provides as follows:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;State vs. Jitender Mahajan & ors. Page No. 26/50
FIR No. 383/21, PS : Shahdara
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;State vs. Jitender Mahajan & ors. Page No. 27/50
FIR No. 383/21, PS : Shahdara
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;
and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
It is apparent from the bare reading of the section itself that an electronic evidence, when not produced in original in the court, shall be admissible in evidence only when it is supported by an affidavit as mentioned in Section 65B Sub-Clause (4) of the Indian Evidence Act. In simple words, copy of an electronic document which is not supported by certificate u/s 65B of the Indian Evidence Act is inadmissible in evidence. In its leading judgment titled as Arjun Panditrao Khotkar vs. Kaulash Kushanrao Gorantyal [(2020) 7 SCC 1], the Hon'ble Apex Court upholding the judgment in Anvar P.V. vs. P.K. Basheer & Ors. [(2014) 10 S.C.C. 473], has laid down that:
59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
....
The required certificate under Section 65B(4) State vs. Jitender Mahajan & ors. Page No. 28/50 FIR No. 383/21, PS : Shahdara is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network"
and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
Thus, any electronic document, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required u/s 65B(4) of the Indian Evidence Act.
12.3 Coming to the requirements of certificate u/s 65B of the Indian Evidence Act, the same have already been highlighted above, however, it would be apt here to peruse Anvar P.V. vs. P.K. Basheer & Ors. (supra) judgment wherein the essentials of the certificate u/s 65B(4) of the Indian Evidence Act were enlisted as follows:
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;State vs. Jitender Mahajan & ors. Page No. 29/50
FIR No. 383/21, PS : Shahdara
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Coming now to the facts of the case at hand, the CD Ex. PW4/E contains the videos and photographs of the alleged incident and in some of those documents the Complainant has identified the Accused persons. Hence, the question of admissibility of the said CD holds immense importance in this case.
12.4 It has been admitted by the Complainant in his testimony that all the videos and photographs contained in the CD have not been taken by him from his own phone and the data includes the documents forwarded to him by his colleagues and friends who were standing outside the wine shop at the time of the alleged incident. Be that as it may, the primary proof of the videos and State vs. Jitender Mahajan & ors. Page No. 30/50 FIR No. 383/21, PS : Shahdara photographs was the mobile phone of the Complainant itself. The said mobile phone has not been produced in the Court for its examination during the evidence of the Complainant and neither the same has been seized by the IO nor sent to FSL for its forensic examination to determine as to whether the video/ photographs of the incident contained therein are original or have been tampered with. Thus, in the absence of the original phone produced in the Court and the FSL examination of the phone, the secondary evidence pertaining to the said electronic record was the only option for the Complainant/prosecution to prove the alleged photos/videos of the incident. Now, the Complainant submits that he went to the market, got the CD Ex. PW4/E prepared from his mobile phone by transfer of data and then handed over the same to the IO alongwith his certificate u/s 65 B of IEA i.e. Ex.PW4/C. 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 65B 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 State vs. Jitender Mahajan & ors. Page No. 31/50 FIR No. 383/21, PS : Shahdara 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 i.e. 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 65B 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.
13. However, at the same time it is also important to mention here that merely because the CD Ex.PW4/E is not admissible in evidence, the entire case of the prosecution shall not be discarded as the trial and its conclusion also depends upon the ocular testimony of the eye witnesses and it is not in every case that the video footages of the crime are procured.
Thus, this Court shall now proceed to examine the testimony of the Complainant Sansar Chand and other State vs. Jitender Mahajan & ors. Page No. 32/50 FIR No. 383/21, PS : Shahdara prosecution witnesses to determine as to whether in their testimonies they have been able to establish the prosecution case or not.
14. Before proceeding on to discussing the evidence led by Prosecution, it is pertinent to briefly discuss the relevant penal provisions with respect to which the culpability of the Accused persons is to be decided.
Primarily, Accused persons have been charged with offences under Sections 341/342 IPC which provide for punishment for wrongful restraint and wrongful confinement respectively. Thus, it is pertinent to peruse sections 339 and 340 IPC which define Wrongful Restraint and Wrongful Confinment.
According to Section 339 of the Indian Penal Code; 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. It provides an exception in cases of obstruction of a private way over land or water where a person in good faith believes himself to have a lawful right to obstruct.
Coming to Section 340 of the Indian Penal Code, it is an extension of Section 339 IPC i.e. to say an aggravated form of Wrongful Restraint and provides that Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said to have committed the offence of wrongful confinement. Thus, Wrongful Confinement is a species of Wrongful Restraint which is its genus.
State vs. Jitender Mahajan & ors. Page No. 33/50FIR No. 383/21, PS : Shahdara The difference between the two provisions lies in the fact that while in the former case Accused restrains a person in moving towards a particular direction in which he has a right to move, in the latter case the victim is completely restricted to move in any direction so much so that he is confined to a particular space. Now the question arises that whether such restraint/confinement has to be physical only or can be by use of fear or coercion also. The answer to this question can be found in leading authorities on this issue. In the case titled as Mrityunjay Kumar v State, 2010 CrLJ 44 (Sik) it was held by the Court that:
Confinement need not necessarily be a confinement where the person is physically held within a certain circumscribed limit. To support the charge of wrongful confinement, proof of actual physical obstruction is not essential. It is the condition of the mind of the person confined, having regard to the circumstances that leads him to reasonably believe that he was not free to move and that he would be forthwith restrained if he attempted to do so.
Further, in the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ 248 Guj), it was held that "For a charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind of the victim, a reasonable apprehension in his mind that he was not free to depart. If the impression creates that the complainant would be forthwith seized or restrained if he attempts to escape, a reasonable apprehension of the use of the force rather than its actual use is sufficient and important."
Also, in Peraiah v Chendriah, 1954 CrLJ 283 (Mad), it was held by the Court that:
In a wrongful restraint there need not be any stoppage of the movement; it may be directed into a channel different from the direction in which the State vs. Jitender Mahajan & ors. Page No. 34/50 FIR No. 383/21, PS : Shahdara victim intends to move. Physical presence of the obstructor is not necessary; nor is any actual assault necessary and fear of immediate harm restraining a man out of a place where he wishes to be and has a right to be is sufficient.
This, clearly implies that the offence of wrongful restraint/ confinement is made out even without using of actual force that is even by merely creating an impression in the mind of the victim by use of fear or other means that he is not free to move in a particular direction or leave the confinement, this offence can be completed.
15. Coming now to the facts of the case at hand, as already mentioned above, the oral evidence brought by Complainant is the most important evidence in this case as he is the only witness who is not only the Complainant in this matter but also the victim and the only witness who has identified the Accused persons in the court.
15.1 Identifying Accused persons namely Jitender Mahajan, Kusum Tomar and Dharamveer Nagar in the court, Complainant (PW4) has specifically stated that they were amongst the crowd which gathered outside the liquor shop and that these people had come in the front, closed the door of the liquor shop and tied a rope on the door as a result of which he along with a few other persons was confined in the shop. Also, he has specifically stated that it was only after police came at the spot that they were rescued. Never in his entire testimony has he swayed away from this stand. With respect to identification of Accused Suman Lata Nagar, Complainant did identify her after looking at the video footage in the CD Ex.PW4/E, however, as the footage has already been held to be inadmissible in evidence, this State vs. Jitender Mahajan & ors. Page No. 35/50 FIR No. 383/21, PS : Shahdara identification cannot be read in evidence as well. Meanwhile, during his cross-examination, Complainant was mainly questioned by Ld. Counsel for the Accused persons on the point of installation of CCTV cameras in the liquor shop and availability of the CCTV footage. A generic suggestion has been given to him that a false case has been hoisted against the Accused persons on account of political rivalry, however, no motive has been established with the Complainant as to why would he falsely implicate the Accused persons. Nothing has been brought on record by defence that Complainant belonged to a particular political party against the Accused persons or had some other prior vendetta against them. Hence, by a mere suggestion the entire testimony of the Complainant does not stand negated.
15.2 As regards time of the incident and time of calling of the police, Complainant has stated that incident started at around 06:15 P.M. but he has not given any specific time at which he called the police.
PW2 has stated that at around 07:13 P.M. he received a PCR call and he made an entry in this regard and assigned the same to IO ASI Manohar Lal. The contents of the DD Entry have nowhere been disputed by the Accused persons wherein it is specifically recorded that Balbir Nagar Wine Shop 1/5003 Wine Shop Jo New Open Hui Hai 100 People Hai Jinhone Shutter Close Kr Hum Ander Hain Kisi Ko Aane Jane Nhede Rhe Hai Mob no. 9816900188 (sic). In the cross-examination of the Complainant it has specifically come on record that the mobile no. 9816900188 belongs to the Complainant and it has nowhere State vs. Jitender Mahajan & ors. Page No. 36/50 FIR No. 383/21, PS : Shahdara been disputed by the Accused persons. Thus, undoubtedly, it stands proved on record that there was an emergency call made to the police by the Complainant at the time of the incident in question stating that he along with other persons have been confined in the wine shop . Hence, the suggestion of Ld. Counsel for the Accused persons that Complainant has given a version as dictated by the IO is rendered incorrect as at the time of making of the PCR Call, IO had not yet been assigned to the case. In fact, in every criminal case, the contents of the DD entry made after the PCR Call are most authentic to the case as it is the first stage at which, while being in a situation of distress, the caller asks for police help. In the case at hand, Complainant has not only reiterated his version of PCR Call in his complaint given to the police but also during his testimony in the court.
15.3 Moving ahead, even though PW5 has failed to identify the Accused persons in the Court, he has not denied the incident as such and deposed on the lines of the Complainant. He has specifically stated that on 18.11.2021 at about 6.15 P.M. a group of people had gathered in front of the shop and closed the doors of the wine shop with the help of the rope from outside and he alongwith other co-workers were confined in the said liquor shop. He has also specifically stated that after some time police officials arrived at the spot and rescued them from the spot. He has also taken names of some Accused persons i.e. Jitender Mahajan, Mahavir and Suman Lata but failed to identify them in the Court. He has specifically admitted that Complainant Sansar Chand was Supervisor of the liquor shop and was present at the time of the incident and called the Police. Even in his cross State vs. Jitender Mahajan & ors. Page No. 37/50 FIR No. 383/21, PS : Shahdara examination, he has stated that door of the shop was opened after the Police came at the spot. Thus, even though PW5 has failed to identify the Accused persons in the Court, he has not turned completely hostile to the prosecution case and rather supported the case in its most important aspects. Moreover, the leading authorities on the aspect as to whether the testimony of the hostile witness can be believed and upto what extent provide that the same cannot be completely discarded and may be read in evidence depending upon the facts and circumstances of the case. In the leading case of C. Muniappan v. State of T.N. [(2010) 9 SCC 567], on the relevancy of testimony of a hostile witness, it has been held by the Supreme Court of India as follows:
69. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. ....
70. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951;
Sarvesh Naraian Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State, (2009) 6 SCC 462.
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof State vs. Jitender Mahajan & ors. Page No. 38/50 FIR No. 383/21, PS : Shahdara which are admissible in law, can be used by the prosecution or the defence.
Thus, as such, even though witness PW5 has failed to identify Accused persons, he has remained firm on the remaining aspects of the incident and therefore, his testimony cannot be completely discarded.
15.4 Interestingly, it is the testimony of PW6 which has come highly in support of the prosecution case. PW6 has not been cross examined by Ld. Counsel for the Accused persons despite opportunity and therefore, each and every word stated in the testimony of by PW6 stands proved as it is. He has stated that on 18.11.2021 at about 6.15 P.M., IO ASI Manohar Lal had asked him to join investigation and they went to the wine shop in question where they found that a group of people had gathered at the wine shop and carrying out protest in front of the wine shop. He has also specifically stated that he found that one rope was tied in front of the said wine shop and IO ASI Manohar Lal pacified the situation and removed the employees of the wine shop from the said wine shop. He has also specifically stated that IO ASI Manohar Lal reduced the complaint of the Complainant Sansar Chand into writing and handed over the Tehrir to him for registration of the case.
This undoubtedly proves that when the Police reached at the spot, the door of the wine shop was closed with the rope tied in front of the shop and it is only after intervention of the Police Officials that persons confined in the shop could come out. PW6 has also specifically taken name of Accused Jitender Mahajan stating that IO had made inquiries from the local inhabitants of the area and found that the accused persons including Jitender State vs. Jitender Mahajan & ors. Page No. 39/50 FIR No. 383/21, PS : Shahdara Mahajan were not present at the spot. No suggestion has been put by Ld. Counsel for the Accused persons to PW6 that no inquiries were made from local inhabitants of the area or that Accused persons did not include Jitender Mahajan. Hence, from the testimony of PW6, it stands proved beyond any doubt that when the Police reached at the spot of the incident, the rope was tied at the gate of the wine shop and employees of the wine shop including the Complainant were confined therein and it is only when the Police arrived at the spot could they come out of the shop.
15.5 The last and the most important leg of this discussion is the testimony of the IO. IO has stated that he received the GD entry at 7.15 P.M. and he along with PW6 went to the spot where they found that some people had gathered in front of the said shop and found that shutter of the wine shop was half closed and the rope was tied in front of the said wine shop. He stated that after his arrival, the in-charge of the said shop namely, Sansar Chand opened the half closed shutter and also opened the rope and gave statement to the IO.
On this aspect, Ld. Counsel for the Accused persons has argued that since the Complainant himself came out of the shop and opened the rope implies that at any stage there was no confinement as the Complainant or any person for that matter when was inside the shop could be easily come out of the shop and therefore, there is no restriction on the movement of the Complainant therefore, he cannot be said to have been confined by the accused.
On this aspect, it may be mentioned here that it has already State vs. Jitender Mahajan & ors. Page No. 40/50 FIR No. 383/21, PS : Shahdara been discussed above that wrongful confinement/restraint of a person need not only be by use of physical force and the same can also be effected by creating a fear or impression in the mind of the person that he cannot move in any particular direction or move out of the confinement. In the testimony of the IO as well as of PW6 and other spot witnesses, it has specifically come that there was a crowd gathered outside the wine shop and some people amongst the crowd had tied a rope outside the wine shop. The presence of a large crowd outside the wine shop, raising slogans of protest, would definitely to the mind of any average human being create fear and stress that if he moves out of the confinement he may suffer harm. The fact that the Complainant was in fear of movement was rather proved by the testimony of PW6 and PW7 by stating that only after arrival of the Police at the spot did the Complainant muster the courage to come out.
In the cross-examination of the IO not even a single question has been put to him by the Ld. Counsel for the accused persons that there was no crowd outside the shop when they reached there or that there was no rope tied in front of the said shop or that before his arrival, the Complainant and the other persons were freely moving outside or inside the shop. Thus, from the combined testimony of the prosecution witnesses as discussed above it stands proved beyond doubt that Complainant was wrongfully confined inside the wine shop by the Accused persons namely, Jitender Mahajan, Dharamveer Nagar and Kusum Tomar as they have been specifically identified by the Complainant.
As already mentioned above, Suman Lata Nagar has not State vs. Jitender Mahajan & ors. Page No. 41/50 FIR No. 383/21, PS : Shahdara been identified by the Complainant at the first instance and therefore, with respect to her identity, doubt is created on prosecution case and this case is not made out against her.
15.6 As regards the discrepancies pertaining to time in the testimonies of the prosecution witnesses, the same do not strike at the root of the matter as they neither question the confinement of the Complainant nor his rescue by the Police. Moreover, the time difference itself in the testimonies is not as huge to render the entire remaining case of the prosecution false. On the aspect of minor discrepancies, it has been held by the Supreme Court of India in the judgement titled as Sunil Kumar vs State Govt. of NCT Of Delhi, [Appeal (Crl.)- 263 of 2003, Decided on 15.10.2003] that:
Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in court took place years after the occurrence the evidence does not become suspect. Necessarily there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not.
15.7 As far as the stress laid by the Ld. Counsel for the accused persons on CCTV footage and its recovery is concerned, again it is pertinent to note that there cannot be a video recording of every crime that may be committed and only because there is no CCTV footage it can be presumed that incident in question never happened. Even though had the CCTV footage been there, it could have lent support to prosecution case, however, its absence does not render the prosecution case disproved. Also, other State vs. Jitender Mahajan & ors. Page No. 42/50 FIR No. 383/21, PS : Shahdara concerns of Ld. Counsel for the accused persons that the distance of the Police booth is 200 meters from the wine shop, absence of beat constable at the time of the incident etc., the same also are not grave in nature so as to dent the prosecution case. Rather by admitting the testimony of PW6 and by not bringing any defence to prove that they were not present at the spot at the time of the incident the accused persons have helped the prosecution in proving its case. Minor discrepancies have already been discussed above and they do not question the prosecution case as such which stands proved beyond reasonable doubts as regards offences u/s 341/341 IPC are concerned.
16. The last part of this judgement shall cover allegations levelled against the Accused persons u/s 188 IPC and Section 51 DMA which make disobedience of an order promulgated by the Public Servant a punishable offence, more so, when the disobedience puts human life in danger. Section 188 IPC is reproduced below for reference:
"Section 188 - Disobedience to Order duly Promulgated by Public Servant -
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand State vs. Jitender Mahajan & ors. Page No. 43/50 FIR No. 383/21, PS : Shahdara rupees, or with both.
Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm."
Further, section 51 DMA provides as follows:
Punishment for obstruction, etc.--
(1) Whoever, without reasonable cause--
(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years.
16.1 Bare reading of the provisions cited above make it manifest that for completion of the offence u/s 188 IPC and 51 DMA, knowledge of the Accused with respect to the order promulgated by the government servant or the directions issued by a government authority is must. The punishable aspect of these provisions is not the harm caused by the act of the Accused but the sheer disobedience or refusal to comply with given directions. Thus, in order to establish the commission of the offence u/s 188 IPC or u/s 51 DMA by the Accused, Prosecution must establish that either the Accused had personal knowledge of State vs. Jitender Mahajan & ors. Page No. 44/50 FIR No. 383/21, PS : Shahdara the government order or the same came to his knowledge through any other mode such as poster, banner, public announcement or personal communication at the spot.
16.2 In this regard, reference may be had to the judgment of the High Court of Delhi cited by defence titled as Bhoop Singh Tyagi vs. State (Supra), which holds as under:
9. As already seen, a person booked under Section 188 IPC must have actual knowledge of public servant's order requiring him to do or abstain from doing some act.
Acquiring or gaining of such knowledge is a pre-requisite. Any proof of general notification promulgated by a public servant would not satisfy the requirement.
10. It is true that the knowledge of Accused could be presumed in certain circumstances but all the same a complaint/FIR must indicate, even though not in very express terms, that he had the knowledge of the order and had knowingly disobeyed it. Where the terms of complaint/FIR did not provides even as inkling in this regard, it cannot be said to make out or constitute an offence under Section 188 and in such a situation, it would warrant to be quashed.
16.3 Coming now to the facts of the case at hand, it is matter of record that none of the Accused persons were found at the spot when the police arrived there and thus, there were neither any directions of dispersal by the police nor any refusal of compliance by the Accused persons. Nothing has been proved on record by Prosecution that Accused persons had knowledge about the restrictions u/s 144 Cr.P.C. as well as those issued by DMA in force and despite that they flouted the same. For that matter, it is pertinent to note that the government authorities issuing such restrictive orders is duty bound to give wide publicity to the same by various means such banners, posters, public announcements etc. so that they are brought to the notice of public at large. 16.4 At this stage, yet another significant authority on this issue State vs. Jitender Mahajan & ors. Page No. 45/50 FIR No. 383/21, PS : Shahdara has been cited by Defence titled as In Re: Ramlila Maidan Incident (Supra) which highlights the necessity of publicity and announcements regarding the prohibition u/s 144 Cr.P.C. being in force, wherein the Supreme Court of India had held as follows:
162. The Standing Order 309 contemplates that there should be display of banner indicating promulgation of Section 144 Cr.P.C., repeated use of Public Address system by a responsible officer-appealing/advising the leaders and demonstrators to remain peaceful and come forward for memorandum, their deputation etc. or court arrest peacefully and requires such announcement to be videographed. It further contemplates that if the crowd does not follow the appeal and turns violent, then the assembly should be declared as unlawful on the PA System and the same should be videographed. Warning on PA system prior to use of any kind of force is to be ensured and also videographed. I find that there is hardly any compliance to these terms of this Standing Order.
295. The right to peacefully and lawfully assemble together and to freely express oneself coupled with the right to know about such expression is guaranteed under Article 19 of the Constitution of India. Such a right is inherent and is also coupled with the right to freedom and liberty which have been conferred under Article 21 of the Constitution of India.
It is essential to note from the above extract that not only repeated use of banners/public announcement system is necessary for communication to the crowd and dispersal of the same, but if the crowd does not follow the appeal and turns violent, then the assembly has to be declared as unlawful on the Public announcement System and the same should be videographed. However, as rightly argued by defence neither any such protocol has been followed by the police officials nor any photos/videos of publication of orders u/s 144 Cr.P.C. or other restrictive orders have been placed on record by the IO.
Thus, undoubtedly, offences u/s 188 IPC and under section State vs. Jitender Mahajan & ors. Page No. 46/50 FIR No. 383/21, PS : Shahdara 51 DMA are not made out against the Accused persons.
Conclusion
17. In view of the above discussion, it comes forth that Prosecution's case as regards the offences u/s 341/342 IPC are concerned stand duly proved while offences u/s 188 IPC and 51 DMA remain unproved.
The main witness which has supported the Prosecution case is the Complainant himself i.e. PW4 Sansar Chand whose testimony has been duly corroborated by the testimonies of PW6 Naveen Yadav, who has not been cross-examined by the Accused persons at all and PW7 IO/ASI Manohar Lal who has also been cross-examined on very limited aspects. The testimony of PW4 is the most important piece of evidence in this case as he is the only person who has identified Accused persons in the court. IO had never arrested the Accused persons and never interrogated them and thus, he could have deposed only regarding the incident as he saw when he reached at the spot, on which has fairly deposed during his testimony.
18. On the aspect of absence of other eye-witnesses from the witness box and PW5 turning hostile in regard to identification of Accused persons, it is highly relevant to read the judgement of the Supreme Court of India in the matter titled as Rajesh Yadav & Anr. Etc. Versus State Of U.P. [2022 LiveLaw (SC) 137] wherein it has been held as follows:
29. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact.
....
31. A mere non-examination of the witness per se will not State vs. Jitender Mahajan & ors. Page No. 47/50 FIR No. 383/21, PS : Shahdara vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice.
Further, on the aspect of requirement of plurality of witnesses, in its leading judgment titled as Rai Sandeep @ Deepu vs State Of NCT Of Delhi, [Criminal Appeal No. 2486 of 2009, Decided on 07.08.2012] the Supreme Court of India has held that:
"The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
19. Before concluding, it may be mentioned here that it is settled in law that the onus of Prosecution is to prove its case beyond all reasonable doubts. However, despite that minor or insignificant discrepancies in testimonies of witnesses are bound to happen since none can be expected to have a photographic memory and thus, on the basis of the same, creating doubts in the otherwise proved Prosecution case shall be an incorrect proposition. On the aspect of the proving of the prosecution case beyond reasonable doubts yet an another authority of the Apex Court titled as Sucha Singh v. State of Punjab, (2003) 7 SCC 643 needs specific mention here.
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering State vs. Jitender Mahajan & ors. Page No. 48/50 FIR No. 383/21, PS : Shahdara suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974 (1) SCR 489 (492-493)]: "......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt......."
".....The evil of acquitting a guilty person light-State vs. Jitender Mahajan & ors. Page No. 49/50
FIR No. 383/21, PS : Shahdara heartedly as a learned author Clanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....."
".......a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....."
20. Thus, in the light of the forgoing discussion on facts and circumstances of the case as well as interpretation of law and leading judicial authorities, this court finds Accused persons namely Jitender Mahajan, Dharamveer Nagar and Kusum Tomar guilty for committing offences u/s 341/342/34 IPC and hence, they stand convicted for the same. Accused Suman Lata Nagar is held not guilty for the offences u/s 341/342/34 IPC and hence, she is Acquitted for the same.
With respect to the remaining offences i.e. offences u/s 188 IPC and 51 DMA, all the Accused persons namely Jitender Mahajan, Dharamveer Nagar, Suman Lata Nagar and Kusum Tomar are found not guilty and hence, Acquitted for the same.
Accused Suman Lata Nagar is directed to furnish bail bonds u/s 437A Cr.P.C. in the sum of Rs.10,000/- with one surety in the like amount.
Announced in the open Court, (Vidhi Gupta Anand) th On 14 December, 2023. ACMM-01/RADC/New Delhi State vs. Jitender Mahajan & ors. Page No. 50/50 FIR No. 383/21, PS : Shahdara