Delhi District Court
Cbi vs Asgar Abbas Rizvi, Etc on 17 July, 2007
IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA
COURTS, DELHI
CBI V/s Asgar Abbas Rizvi, etc
RC-2(S)/90/SCB
U/s 420/468/471 IPC
a) Sl. No. of the case : 11/C
b) Date of institution of the : 30/09/1992
case
c) Date of the commission : In the year 1990.
of offence
d) Name of the : Sh. G.R. Bhattacharjee,
complainant Registrar, Kolkata High
Court
e) (1) Name of the accused, : (1) S. Fatehab Ali
their parentage and Meerza S/o Lt Wasir Ali
residence Meerza (2) Basudeo
Narayan Singh S/o Lt
Sh Jagat Naryan Singh,
(3) Prince Anjum Qudar
S/o Lt. Sh. Mehar
Quadar and (4) Syed
Asghar Abbas Rizvi,
S/o Sh. Syed Badshab
Alinad Rizvi
f) Offence complained of or : Sec 120B IPC r/w Sec.
proved 468/471 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
a) Sl. No. of the case : 11/C
i) Date on which judgment : 13/07/2007
reserved
j) Judgment delivered on : 17/07/07
k) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1.The charge-sheet in this case was filed by the Central Bureau of Investigation (in short referred to as CBI hereinafter) against accused namely (1) Syed Fatehab Ali Meerza S/o Late Wasif Ali Meerza @ Gabbo Saheeb, R/o 85 Park Street, Kolkata (died and proceedings abated against him), (2) Basudeo Narayan Singh @ Singh Sahab S/o Late Sh. Jagat Naryan Singh, R/o 7-Sailen Dhar Road, Liluah Howrah, West Bengal (died and proceedings abated against him), (3) Prince Anjum Qudar @ Rousan Mirza, S/o Late Sh. Mehar Quadar, R/o P-34 Garden Reach Road, Kolkata (died and proceedings abated against him) and (4) Syed Asghar Abbas Rizvi, S/o Syed Badshab Alinad Rizvi, R/o 9-C, Navakala Apartment, Patparganj, New Delhi respectively.
2. The main facts pertaining to this matter as mentioned in the charge-sheet against the accused are to the effect that this case was registered on the directions of Hon'ble Kolkata High Court for using forged notification by accused dated 02/02/90 of the then Secretary of Ministry of Home Affairs and a certificate purported to have been issued by the then Union Home Minister, Sh. Buta Singh; that during investigation, it was revealed that Syed Fatehab Ali Mirza made several representations requesting the Union Government to recognise him as Nawab Bahadur of Murshidabad and to declare him entitled to get payment of annuity by virtue of Murshidabad Act, 1891; that Fatehab Ali Meerza filed a writ petition before Hon'ble Kolkata High Court in this regard; that a fabricated copy of notification dated 02/02/90 showing title of Nawab Bahadur of Murshidabad of Syed Fatehab Ali Meerza was used during the pendency of his writ petition before Hon'bleKolkata High Court in order to get favourable order on the basis of the same; that forgery and cheating of certain other documents was also revealed during the course of further investigation against the accused pertaining to this matter. Hence, a charge-sheet was filed after the completion of entire investigation against all the four accused for offences punishable U/s 120B/468/471/511 of The Indian Penal Code, 1860 (in short referred to as IPC hereinafter).
3. Earlier this case was tried at Kolkata and it was subsequently transferred to this court as per the directions of Hon'bleSupreme Court of India on the transfer petition of accused, Asghar Abbas Rizvi (in short referred to as A.A. Rizvi hereinafter) filed by him for this purpose before Hon'ble Supreme Court of India.
4. During the course of proceedings, all the other accused except accused A.A. Rizvi have died and proceedings already abated against them as per record. Accused, A.A Rizvi was only facing trial of this case when it came before this court by way of transfer.
5. Copies of documents were supplied to the accused in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.PC hereinafter).
6. A charge was framed against the accused, A.A. Rizvi on 18/12/06 by this court for the offence u/s 120B IPC r/w Sections 468 and 471 IPC respectively to which he did not plead guilty and claimed trial.
7. From the side of CBI, PW1 Sh. P.K. Chadha, PW2 Sh. Sidda Linga Nagrajan, PW3 Sh. Manjeet Singh, PW4 Sh. Kali Prasad Gupta and PW5 Sh. Bipul Garg Choudhary were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed after giving sufficient opportunities to CBI for leading P/E in this case from time to time since framing of charge against the accused, A.A. Rizvi on 18/12/06.
8. Statement of accused, A.A. Rizvi was recorded on 12/07/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect but did not want to lead Defence Evidence (in short referred to as D/E hereinafter).
9. Oral final arguments were heard on 13/07/07 from Ld. Counsel, Sh. Ansuman Sinha on behalf of accused, A.A. Rizvi because the same were not submitted on behalf of CBI despite sufficient time given for this purpose. The Ld. Defence Counsel had also filed written synopsis of final arguments on behalf of accused, A.A. Rizvi before this court on 13/07/07 of which copy was supplied to Ld. APP Sh. K.R. Malatesh, who was present on behalf of CBI on 13/07/07. However, in the interest of justice, an opportunity was given to the CBI for filing written synopsis of final arguments by supplying advance copy of the same to Ld. Defence Counsel and the same have been filed on record on behalf of CBI before this court on 16/07/07 by supplying advance copy of the same to the Ld. Defence Counsel.
10. The main submissions of CBI as mentioned in the written synopsis of final arguments are to the effect that accused, A.A. Rizvi committed offence of criminal conspiracy in connivance with other co- accused for the purpose of fabricating a certificate and signatures of the then Home Minister, Sh. Buta Singh; that CBI has produced five PWs in support of this case and they have proved the case of the CBI against this accused beyond reasonable doubt; that this accused can also be punished for the offence U/s 120B IPC though remaining accused have already died in this matter. A prayer was made in the end to punish the accused, A.A. Rizvi strictly as per law.
11. On the other hand, the main submissions of Ld. Defence Counsel during the course of oral final arguments and also as mentioned in the written synopsis of final arguments filed on record were to the effect that accused, A.A. Rizvi has been charged for the offence of criminal conspiracy U/s 120B IPC r/w Sections 468 and 471 IPC but remaining accused have already died in this matter and accused, A.A. Rizvi alone is facing trial of this matter at present; that this accused alone cannot be tried and punished for the offence of criminal conspiracy U/s 120B IPC r/w Sec. 468 and 471 IPC respectively in the absence of remaining co-accused who have already died; that the essential ingredients of criminal conspiracy as defined in Sec. 120A IPC do not stand proved beyond reasonable doubt against the accused, A.A Rizvi; that a criminal conspiracy cannot be hatched by one accused alone; that in the cross-examinations of PWs' examined on behalf of CBI in this matter, most of these witnesses have not even recognised accused, A.A. Rizvi during their depositions before this court; that there is no evidence on record regarding fabrication of any documents, signatures etc of any person or authority by accused, A.A. Rizvi; that there is no documentary evidence on record implicating accused, A.A. Rizvi for the alleged offences beyond reasonable doubt; that prosecution side has not been able to prove on record the alleged forgery of the alleged documents by way of leading evidence of forensic expert in this regard; that accused, A.A. Rizvi could not be connected in any way for the commission of alleged offences. Lastly, a prayer was made for acquittal of the accused, A.A. Rizvi.
12. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
13. Before proceeding further on merits of this case, I refer to the provisions of law for which charge was framed against accused, A.A. Rizvi in this case.
14. Sec. 120B of IPC provides as under:
''120B. Punishment of criminal conspiracy -
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both''.
15. Sec. 468 of IPC provides as under:
468. Forgery for purpose of cheating -
'' Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine''.
16. Sec. 471 of IPC provides as under:
471. Using as genuine a forged [document or '' electronic record] - Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]''.
17. Now turning to the evidence on record, PW1 Sh. P.K. Chadha deposed in his examination-in-chief mainly to the effect that during 1988, he was posted at Desk Attache in Political Poll-III Section of Home Affairs; that at that time, this section was dealing with succession and annuity cases of ex-rulers/Nawabs; that he had seen photocopy of file bearing No. 19/8/87 of Political Poll-III pertaining to Ministry of Home Affairs (in short referred to as MHA hereinafter) regarding the matter pertaining to annuity and succession to the title of late Nawab Bahadur of Murshidabad on the subject claim of Syed Fatehab Ali Meerza for the payment of annuity and succession; that a suit was filed by Syed Fatehab Ali Meerza against Union of India at Hon'ble Kolkata High Court; that he i.e PW1 identified the signatures of Sh. D.N. Sharma at point A with regard to the noting of Sh. D.N. Sharma, Director (Judicial); that he had seen the letter dated 18/12/1988 signed by Sh. D.N. Sharma, Director (Judicial) conveying decision of MHA, Government of India intimating therein that Syed Fatehab Ali Meerza was not entitled to the property and other rights and title as claimed by him with regard to Nawab Bahadur of Murshidabad. He further deposed regarding other proceedings taken in this matter. However, in his cross-examination conducted by Ld. Defence Counsel on behalf of accused, A.A. Rizvi, this witness admitted that he did not identify accused, A.A. Rizvi and he had never met him earlier. Even in his examination-in-chief, he has not connected accused, A.A. Rizvi with the commission of crime pertaining to this matter. Hence, I am of the considered opinion that this witness has not deposed anything incriminating against accused, A.A Rizvi pertaining to this case.
18. PW2 Sh. Sidda Linga Nagrajan deposed in his examination-in-chief mainly to the effect that during 1989, he was posted as Section Officer in MHA, North- Block, New Delhi in Home Minister Personal Section; that Sardar Sh. Buta Singh was Home Minister at that time; that Sh. Buta Singh, vide his speaking order at page-57 of Ex. PW1/1, had rejected the claim of Syed Fatehab Ali Meerza for title of Nawab Bahadur of Murshidabad as well as for the payment of annuity; that to his knowledge, Sh. Buta Singh had not issued any certificate in favour of Sh. Syed Fatehab Ali Meerza. In the cross-examination of this witness conducted by Ld. Defence Counsel, he also admitted that he had never met A.A. Rizvi. He further admitted that he did not know A.A. Rizvi. It is his further say that he had never seen A.A. Rizvi in MHA and that he had never seen him with Sh. Buta Singh, the then Home Minister of India. He further deposed that he did not know whether Sh. Buta Singh was known or not known to A.A. Rizvi. Hence, evidence of this witness is also not sufficient to connect accused herein with the commission of alleged crime.
19. PW3 Sh. Manjeet Singh Batra deposed in his examination-in-chief mainly to the effect that he was posed as Spl. Assistant in New Bank of India, K-Block, Connaught Circus Branch, New Delhi from 1983 to 1991 and he had seen the statements of accounts of Anjum Qadar, B.N. Singh and A.A. Rizvi respectively issued by their Branch, which are Ex. PW3/A to PW3/C respectively on record; that he identified the stamp of his bank; that savings bank A/c No. 9120 was opened in their bank by A.A. Rizvi on 12/03/1990. In his cross-examination conducted by Ld. Defence Counsel, this witness also admitted the fact that he did not identify and did not remember the signatures of officials at point A & B on Ex. PW3/F. He further deposed that as per record, there was no transaction in the account of A.A. Rizvi except that account was opened by this person with Rs. 100/- and the interest accrued thereon was Rs. 2.10/-. In this way, the evidence of this witness is also not sufficient to connect the accused, A.A. Rizvi with the commission of alleged crime beyond reasonable doubt.
20. PW4 Sh. Kali Prasad Gupta deposed in his examination-in-chief mainly to the effect that on 23/12/1989, he was posted at Park Street Post Office, Kolkata in the capacity of Clerk; that he had seen the delivery slip dated 23/12/1989 of Park Street Post Office, Kolkata written by him vide Sl. No. 03; that there was one article bearing No. 1780 and vide this entry, a letter was delivered to Fatehab Ali Meerza and it was a registered letter bearing entry at point A; that he identified the delivery slip Ex. PW4/A bearing the seal/stamp of Park Street Post Office at point B. In his cross-examination conducted by Ld. Defence Counsel, this witness deposed that as per delivery slip, the letter mentioned at Sl. No. 3 was delivered on 23/12/1989 and this letter was sent by D. Secretariat, New Delhi. To my considered opinion, this witness has also not deposed anything incriminating against accused, A.A. Rizvi.
21. The only remaining prosecution witness examined in this on behalf of CBI is PW5 Sh. Bipul Garg Choudhary. In his examination-in-chief, he deposed mainly to the effect that during 1990, he was posted as Inspector of Police in Special Crime Branch (in short referred to as SCB hereinafter) at Kolkata; that on 11/05/90, an FIR No. RC-2/90 was registered by Sh. B.K. Bagchi, Inspector of Police, CBI, SCB, Kolkata; that this FIR was registered on the basis of a complaint dated 16/04/90 of Sh. G.R. Bhattacharya, the then Registrar of Hon'ble Kolkata High Court on Appellate Side; that he i.e PW5 identified the signatures of Sh. B.K. Bagchi at point A and his endorsement at point B on complaint No. 2751 pertaining to Ex. PW5/A and PW5/B respectively; that alongwith the aforesaid complaint, the xerox copy of purported notification dated 02/02/90, running into one sheet, was also received bearing the certificate of Sh. B.N. Singh at point A. He further deposed about various documents received alongwith the complaint in question on the basis of which this case was registered. He also deposed about various steps taken by him during investigation of this matter from time to time including collection of relevant documents for this purpose. In his cross-examination conducted by Ld. Defence Counsel, he admitted that letter Ex. PW5/T was not seized by him (PW5) but it was seized by Sh. B.K. Bagchi. It is relevant to mention at this stage that Sh. B.K. Bagchi (a very material and important witness of this case) has not been produced by CBI before this court for his deposition despite the fact that sufficient opportunities were given to the CBI for leading P/E in this matter from time to time. This witness i.e PW5 further deposed in his cross- examination that he got the signatures of accused, A.A. Rizvi examined from a forensic expert on questioned document Q3. He further deposed that he could not say whether the report of such forensic expert was received or not. He also admitted that this report was not on the record of this case and that it was not filed on record. He did not remember making about any correspondence with the forensic laboratory on the point of report about signatures of accused, A.A. Rizvi. He further deposed that he received instructions from the Hon'ble Kolkata High Court to lodge FIR in this case and to examine Sh. Buta Singh with regard to issuance of disputed certificate and that at the time of examination of Sh. Buta Singh, he was not holding any Government post; that he had taken the specimen signatures of Sh. Buta Singh during his examination but he could not say as to what he did with regard to signatures of Sh. Buta Singh; that it was correct that he had sent signatures of Sh. Buta Singh for forensic examination; that he did not remember as to whether the final form closing this case was submitted before Ld. Magistrate concerned of CBI at Kolkata or not; that he did not know whether accused, A.A. Rizvi was present before Hon'ble Kolkata High Court at the time of taking statements of other accused including Basudeo Naryan Singh; that A.A. Rizvi was a government servant posted at Delhi at that time; that the letter dated 01/07/91 written by him to Ld. CMM, Kolkata was bearing explanation for taking the case for further investigation after it was closed initially and that the original of the said letter was Ex. PW5/DX on record. He further admitted that he remembered that that he had submitted the closure report of the present case after thorough investigation. This witness was asked specific question to the effect as to what material came to his knowledge against accused, A.A. Rizvi after taking up fresh investigation of this matter and this witness replied that he did not remember. He further deposed that he had re- investigated this matter upon the directions of Hon'ble Kolkata High Court otherwise he would not have re- investigated it. From the careful perusal of entire examination-in-chief and cross-examination of this witness, I am of the considered opinion that there are several material contradictions in his deposition and he has also failed to connect the accused, A.A. Rizvi with the commission of alleged crimes pertaining to this case beyond reasonable doubt.
22. No other PW was examined in this case on behalf of CBI despite sufficient time given for this purpose from time to time.
23. Statement of accused, A.A. Rizvi was recorded on 12/07/07 in which he denied all the allegations against him as false and incorrect.
24. In view of the above mentioned discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that the CBI has miserably failed to connect the accused, A.A. Rizvi with the commission of alleged crimes in this matter beyond reasonable doubt. Hence, this accused is entitled to be acquitted for the offences for which charge was framed against him in this case. Accordingly, accused, A.A. Rizvi, S/o Sh. Syed Badshab Alinad Rizvi is hereby acquitted for the offences U/s 120B of IPC r/w Sec. 468 and 471 IPC respectively. His bail bonds are discharged and his surety also discharged. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be. ANNOUNCED IN THE OPEN COURT TODAY i.e on 17/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Ranveer Singh FIR No. 128/02 U/s 61 of Punjab Excise Act, 1914 PS : Khajuri Khas, Delhi
a) Sl. No. of the case : 158/2
b) Date of institution of : 22/10/2002 case
c) Date of the commission : 16/07/2002 of offence
d) Name of the : Ct Sh. Khurshid complainant Ahmed
e) (1) Name of the accused, : Ranveer Singh, S/o Sh his parentage and Bhatra, R/o Vill:
residence Sherpur, Khajuri
Khas, Delhi
f) Offence complained of : Sec 61 of Punjab
or proved Excise Act
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date on which judgment : 04/07/07
reserved
a) Sl. No. of the case : 158/2
j) Judgment delivered on : 12/07/07
k) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused is that on 16/07/2002 at about 6:40 p.m, at Gandha Nalla Pulia, Vill: Sherpur, Delhi, within the jurisdiction of Police Station (in short referred to as P/S hereinafter) Khajuri Khas, Delhi, he was found sitting with one 'tat bori' containing two 'petis' in which 50 quarter bottles of country made liquour were found; that accused was also found having one bag of cloth containing 24 quarter bottles of country made liquor and one plastic bag of yellow colour containing 24 half bottles of country made liquor in contravention to the notification of Delhi Administration in this regard and without any licence/permit. Hence, a charge-sheet was filed against the accused for the offence U/s 61 of Punjab Excise Act, 1914 (in short referred to as Excise Act hereinafter) after the completion of entire investigation.
2. The accused appeared in the court and he was supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.P.C hereinafter).
3. On 29/03/2004, a charge was framed against the accused for the offence U/s 61 of Excise Act to which he did not plead guilty and claimed trial.
4. From the side of prosecution, PW1 Ct Sh. Khurshid Ahmed, PW2 HC Sh. Chokey Lal, PW3 Chemical Examiner, Sh. D.K. Punj and PW4 ASI Sh. Ram Manohar were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on 29/06/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect and also wanted to lead Defence Evidence (in short referred to as D/E hereinafter).
6. DW1 Sh. Sunder and DW2 Sh. Sanjay were examined on behalf of accused and then remaining D/E was closed.
7. Oral final arguments were heard on 04/07/07 from Ld. APP for state and from accused in person as his Ld. Counsel was not available on that date to submit the same. However, a further opportunity was given to accused/his Ld. Counsel to file written synopsis of final arguments and the same have filed on record on behalf of accused.
8. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against the accused for the offence for which charge was framed against him and that he is liable to be punished strictly as per law.
9. On the other hand, the main submissions of Ld. Defence Counsel in the written synopsis of final arguments filed on record on behalf of accused have been to the effect that accused was falsely implicated in this case; that nothing was recovered from his possession; that accused was called in the PS on some excuse and then a false case under Excise Act was planted upon him; that no independent and reliable person of the locality was joined during investigation of this case by the Investigating Officer (in short referred to as I/O hereinafter) despite the fact that the alleged place of arrest of accused was a very busy place; that only, except PW3 Sh. D.K. Punj, Dy. Chemical Examiner, the remaining prosecution witnesses examined in this case are police officials and that conviction cannot be held merely on the basis of testimonies of police officials alone in such like cases; that there are several material contradictions in the statements of PWs examined in this case; that there is no satisfactory evidence on record to the effect that samples of the country made liquor were really sent in untampered condition to Excise Laboratory, Delhi; that DW1 Sh. Sunder and DW2 Sh. Sanjay respectively have also deposed in support of innocence of the accused in this matter; that case does not stand proved beyond reasonable doubt on the basis of evidence on record. Hence, acquittal of the accused was prayed for on these grounds.
10. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
11. Before proceeding further on merits of this case, I refer to the provisions of law for which charge was framed against the accused.
12. Sec. 61 of Excise Act provides as under:-
61 (1) Penalty for unlawful import, export, '' transport, manufacture, possession, etc. ---
Whoever, in contravention of any section of this Act or of any rule, notification issued or given there under or order made, or of any licence, permit or pass granted under this Act. --
(a) imports, exports, transports, manufactures, collects or possesses any (intoxicant); or
(b) constructs or works any distillery or brewery; or
(c) uses keeps or has in his possession any materials still, utensils, implement or apparatus whatever, for the purpose of manufacturing any (intoxicant) other than tari:
shall be punishable for every such offence with imprisonment for a term which may extend to (three years) [and with fine upto two thousand rupees and if found in possession of a working still for the manufacture of any (intoxicant) shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees. ......................................''
13. Now turning to the evidence on record, PW1 Ct Sh. Khurshid Ahmed and PW2 HC Sh. Chokey Lal respectively deposed about various steps taken during investigation of this case.
14. PW4 ASI Sh. Ram Manohar is merely a formal witness as on 16/07/02, he was posted as Duty Officer at PS : Khajuri Khas, Delhi and recorded FIR in this case of which copy is on record as Ex. PW4/A.
15. PW3 Sh. D.K. Punj deposed mainly to the effect that on 19/07/02, four samples duly sealed with the seal of CL were received in their office alongwith M-29 Form and the samples were analysed by Sh. Ramesh Bedi under his (i.e PW3) supervision and that he submitted his report Ex. PW3/A on record pertaining to the same bearing his signatures at point B. In his cross-examination conducted by Ld. Defence Counsel; that this witness admitted that he did not remember the exact date on which samples were handed over to Sh. Ramesh Bedi. He further admitted that he did not remember whether Sh. Ramesh Bedi analysed the other samples also or not on 19/07/02. In this way, there are many contradictions in his deposition and he has not proved beyond reasonable doubt in his chemical examination report.
16. Now again turning to the evidence of PW1 Ct Sh. Khurshid Ahmed and PW2 HC Sh. Chokey Lal respectively, I am of the considered view that their evidence is also not sufficient in itself to connect the accused with the commission of crime beyond reasonable until and unless it is corroborated in material particulars by other independent and reliable evidence which is found lacking in this matter so far as the considered opinion of this court is concerned. Both these witnesses have not given any satisfactory explanation at to why no independent and reliable person of the locality was joined by the I/O during the investigation of this matter despite the fact that the place of occurrence was very busy locality.
17. One of the main contentions of Ld. Defence Counsel in the written synopsis of final arguments filed on behalf of accused was that no independent and reliable person of the locality was joined by IO during investigation of this case. I find force in this submission of the Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, ''Darshan Singh V/s state of Haryana'' reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
6. The recovery had been effected at the bus '' stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses''.
18. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely ''Pardeep Narayan, etc V/s State of Maharastra'' reported as 1995(2) CC Cases, Page- 133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable person of the locality in this case. The ratio of Darshan Singh' s Case (Supra) and Pardeep Narayan' s Case (Supra) is found fully applicable to the case under discussion.
19. The other main contention of Ld. Defence Counsel was that except PW3, who has not proved the prosecution case against the accused beyond reasonable doubt, the remaining three witnesses examined in this case on behalf of the state are only police officials and that conviction cannot be held merely on the basis of testimonies of police officials alone in such like cases. I find force in this contention also of Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Supreme Court of India given in a case namely, ''Sanspal Singh V/s State of Delhi'' 1999 Crl. L.J., Page-19 (Supreme Court). In this judgment, the Hon'ble Apex Court held mainly to the effect that recovery of the arms was based on evidence of police officials alone and that no public witnesses were associated to witness the recovery even though such witnesses were available and hence the conviction on the basis of the testimonies of police officials alone was not found maintainable by the Hon'ble Apex Court in that case.
20. There is yet another important judgment of Hon'ble Delhi High Court on this point given in a case namely, ''Jagdish Rai V/s State'', 1988 Crl. L.J, Page- 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
21. There is yet another judgment of Hon'ble Delhi High Court on this point given in a case namely ''Pawan Kumar V/s Delhi Administration'', 1989 Crl. L.J, Page-127 (Delhi High Court). The Hon'ble Delhi High Court held in this case mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from the accused was considered doubtful in that case by the Hon'bleDelhi High Court and hence the accused was acquitted.
22. In my considered opinion, the ratio of the judgments given in Sanspal Singh' s Case (Supra), Jagdish Rai' s Case (Supra) and Pawan Kumar' s Case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
23. DW1 Sh. Sunder and DW2 Sh. Sanjay respectively have also deposed satisfactorily regarding innocence of the accused in this matter. These witnesses were cross-examined by Ld. APP for state but in my considered opinion, they were not shaken on the main point regarding innocence of the accused in this matter. There is also no satisfactory explanation on record regarding sending of samples of alleged illicit liquor to the office of Excise Laboratory, Delhi in untampered condition.
24. In view of the above mentioned discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that the prosecution side has miserably failed to satisfy this court beyond reasonable doubt regarding commission of offence by the accused U/s 61 of Excise Act beyond reasonable doubt. Hence, the accused herein is entitled to be acquitted for the offence for which charge was framed against him. Accordingly, accused, Ranveer Singh S/o Sh. Bhatra is hereby acquitted for the offence U/s 61 of Excise Act. His bail bonds are discharged and his surety also discharged. The case property be got destroyed/disposed of as per rules after expiry of period of appeal/revision, as the case may be. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be. ANNOUNCED IN THE OPEN COURT TODAY i.e on 12/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Munna Lal FIR No. 147/02 U/s 3 of West Bengal Prevention of Defacement of Property Act, 1976 PS : Khajuri Khas, Delhi
a) Sl. No. of the case : 138/3
b) Date of institution of the : 23/09/02 case
c) Date of the commission : 07/08/02 of offence
d) Name of the : SI Sh. Virender Kumar complainant
e) (1) Name of the accused, : Munna Lal, S/o Pooja his parentage and Ram, R/o J-311, 3½ residence Pusta Kartar Nagar, Delhi
f) Offence complained of : Sec 3 of West Bengal or proved Prevention of Defacement of Property Act, 1976
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date on which judgment 04/07/2007 reserved
a) Sl. No. of the case : 138/3
j) Judgment delivered on : 09/07/07
k) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused is that on 07/08/02 at about 9:00 p.m at Pusta Road, G-Block, West Karawal Nagar, Delhi, it was found that the accused herein had displayed a board in the name and style as ''Manoj Tent House'' on the telephone poll i.e a government property and thereby defaced that government property without having any licence/permit in this regard. Hence, a charge-sheet was filed against the accused after the completion of entire investigation for the offence U/s 3 of West Bengal Prevention of Defacement of Property Act, 1976 (in short referred to as West Bengal Act hereinafter) as applicable to Delhi.
2. Accused appeared in the court and he was supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.PC hereinafter).
3. On 08/01/04, a notice of accusation was given to the accused for the offence U/s 3 of West Bengal Act to which he did not plead guilty and claimed trial.
4. From the side of prosecution PW1 ASI Sh Ram Manohar, PW2 Sh. Bantoo and PW3 SI Sh. Virender Kumar were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on 05/06/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect but did not want to lead Defence Evidence (in short referred to as D/E hereinafter).
6. Final arguments were heard on 04/07/07 from Ld. APP for state and from Ld. Counsel, Sh. J.P. Srivastava on behalf of the accused.
7. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against the accused for the offence for which notice of accusation was given to him and that he is liable to be punished strictly as per law.
8. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused was falsely implicated in this case; that he did not violate provisions of Sec. 3 of West Bengal Act as alleged; that no independent and reliable person of the alleged locality was joined by the Investigating Officer (in short IO) during investigation of this case; that out of three PWs examined in this case, two are police officials and only one is a public person and that public person has not at all supported the prosecution case; that conviction cannot be held merely on the basis of testimonies of police officials alone in such like cases; that no satisfactory explanation has come on record as to why no public and independent person was joined by the IO during investigation of this case; that complainant of this case namely SI Sh. Virender Kumar has also become IO of this matter and that he should not have proceeded with the investigation of this matter as per mandate of the judgment of Hon'ble Supreme Court of India given in a case i.e ''Megha Singh V/s State of Haryana'' AIR 1995 Supreme Court 2339; that complainant of a case cannot take investigation of that matter and if it is done so as in present case, it is also in violation of Hon'ble Delhi High Court's judgment given in a case reported as Sunil V/s State, 1999 (1) JCC (Delhi) 85; that there is no satisfactory evidence on record proving the prosecution case beyond reasonable doubt against the accused. On the basis of these grounds mainly, acquittal of the accused was prayed for.
9. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
10. Before proceeding further on merits of this case, I refer to the provisions of law for which notice was framed against the accused in this case.
11. Sec. 3 of West Bengal Act provides as under:
''3. Mischief causing damage to public property - (1) Whoever commits mischief by doing an act in respect of any public property, other than public property of the nature referred to in sub- section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being ---
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installation;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months''.
12. Now turning to the evidence on record, PW1 ASI Sh. Ram Manohar happens to be a formal witness as he was posted as Duty Officer on 07/08/02 at Police Station (in short referred to as P/S hereinafter) Khajuri Khas, Delhi and recorded FIR in this case of which copy is on record as Ex. PW1/A.
13. PW2 Sh. Bantoo has not at all supported the prosecution case and he completely felt ignorance about the date, month and year of occurrence in this matter.
14. The last and final witness examined on behalf of the state in this case is PW3 SI Sh. Virender Kumar. There are several material contradictions in his deposition. He also happens to be the complainant in this matter. He should not have proceeded with the investigation of this case as per mandate of the judgments of Hon'ble Supreme Court of India and of Hon'ble Delhi High Court respectively given in Megha Singh's Case (Supra) and Sunil's Case (Supra) respectively. Hence, evidence of this witness is also not sufficient to connect the accused herein with the commission of alleged crime beyond reasonable doubt.
15. No other PW was examined on behalf of the state despite sufficient opportunities given for this purpose from time to time.
16. One of the main contentions of Ld. Defence Counsel during the course of oral final arguments was to the effect that no independent and reliable person of the locality was joined by IO during investigation of this case. I find force in this submission of the Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, ''Darshan Singh V/s state of Haryana'' reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
''6. The recovery had been effected at the bus stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses''.
17. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely ''Pardeep Narayan, etc V/s State of Maharastra'' reported as 1995(2) CC Cases, Page- 133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable person of the locality in this case. The ratio of Darshan Singh's Case (Supra) and Pardeep Narayan's Case (Supra) is found fully applicable to the case under discussion.
18. The other main contention of Ld. Defence Counsel was that except PW2, who has not at all supported the prosecution case, the remaining prosecution witnesses examined in this case are police officials and that conviction cannot be held merely mainly on the basis of testimonies of police officials alone in such like cases. I find force in this contention also of Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Supreme Court of India given in a case namely, ''Sanspal Singh V/s State of Delhi'' 1999 Crl. L.J., Page-19 (Supreme Court). In this judgment, the Hon'ble Apex Court held mainly to the effect that recovery of the arms was based on evidence of police officials alone and that no public witnesses were associated to witness the recovery even though such witnesses were available and hence the conviction on the basis of the testimonies of police officials alone was not found maintainable by the Hon'ble Apex Court in that case.
19. There is yet another important judgment of Hon'ble Delhi High Court on this point given in a case namely, ''Jagdish Rai V/s State'', 1988 Crl. L.J, Page- 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
20. There is yet another judgment of Hon'ble Delhi High Court on this point given in a case namely ''Pawan Kumar V/s Delhi Administration'', 1989 Crl. L.J, Page-127 (Delhi High Court). The Hon'ble Delhi High Court held in this case mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from the accused was considered doubtful in that case by the Hon'ble Delhi High Court and hence the accused was acquitted.
21. In my considered opinion, the ratio of the judgments given in Sanspal Singh's Case (Supra), Jagdish Rai's Case (Supra) and Pawan Kumar's Case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
22. In view of the above mentioned discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that the prosecution side has miserably failed to satisfy this court beyond reasonable doubt regarding commission of offences U/s 3 of West Bengal Act. Hence, the accused herein is entitled to be acquitted for the offence for which notice was framed against him. Accordingly, accused, Munna Lal S/o Sh. Pooja Ram is hereby acquitted for the offence U/s 3 of West Bengal Act. His bail bonds are discharged and his surety also discharged. The case property, if any, to remain exclusively with the superdar if already released on superdari, failing which to be got destroyed/disposed of as per law after expiry of period of appeal/revision, as the case may be. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 09/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 18/07/07/ State V/s Smt. Amlesh FIR No. 239/99 U/s 288/304A IPC PS : Khajuri Khas, Delhi ORDER ON POINT OF SENTENCE 17/07/07 Present : Ld. APP for state.
Accused/Convict (in short called as convict) namely, Smt. Amlesh present on bail with Ld. Counsel, Sh. K.S. Verma.
1. I heard both sides on point of sentence.
2. The main submission of Ld. APP was that convict committed a serious offence due to which precious life of a human being was lost and she deserve severe punishment as per law.
3. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that convict was the only responsible earning member for her family; that no previous conviction has been proved against her by the prosecution side; that she is facing trial of this case regularly since year 2000; that she will not commit any offence in future; that she was a widow having full responsibility to support her only son. On these grounds mainly, a lenient view on point of sentence was prayed for and further a request was made to release her on probation of good conduct.
4. I again perused the entire judicial file minutely in view of the above mentioned rival submissions.
5. As regards the submission of Ld Defence Counsel for releasing her on probation of good conduct, I am of the considered opinion that she has committed a serious offence pertaining to this matter in which a person lost his life due to her rash and negligent behaviour. Hence, she does not deserve to be released on probation of good conduct.
6. However, it is true that no previous conviction has been proved against her. It is also true that she is regularly facing trial of this case since the year 2000. She also appears to be a responsible earning member for her family. She is told to be widow and this fact has not been disputed by the prosecution side. She also appears to be in the mood of remorse and repentance.
7. In view of the above mentioned reasons, I take a lenient view against her on point of sentence.
Accordingly, I sentence her to simple imprisonment for three months and a fine of Rs. 500/- (Rupees five hundred only) for the offence U/s 288 IPC. In default of payment of fine under this section, she shall further undergo simple imprisonment for 15 days. I further sentence her to simple imprisonment for one year and a fine of Rs. 5,000/- (Rupees five thousand only) for the offence U/s 304A IPC. In default of payment of fine under this section, she shall further undergo simple imprisonment for three months. Fine not paid by the convict today. Let one certified copy of this order be given to the convict free of cost today itself against due receipt. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be. ANNOUNCED IN THE OPEN COURT TODAY i.e on 17/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net on 18/07/07/07 State V/s Smt. Amlesh FIR No. 239/99 U/s 288/304A IPC PS : Khajuri Khas, Delhi
a) Sl. No. of the case : 113/2
b) Date of institution of : 22/07/2000 case
c) Date of the commission : 28/06/99 of offence
d) Name of the : HC Sh. Hari Om complainant
e) (1) Name of the accused : Smt. Amlesh, W/o Sh.
and her and residence Suraj Pal Singh, R/o A/55, Gali No. 36, West Karawal Nagar, Som Bazar, Delhi
f) Offence complained of : Sec 288 and 304A IPC or proved
g) Plea of the accused : Pleaded not guilty
h) Final order : Convicted
a) Sl. No. of the case : 113/2
i) Date on which judgment : 10/07/07 reserved
j) Date of such order : 13/07/07
k) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused is that on 28/06/99 at about 11:00 a.m, at plot No. H.-14, 35 Foota Road, Radha Krishan Marge, West Karawal Nagar, Delhi, within the jurisdiction of Police Station (in short referred to as P/S hereinafter) Khajuri Khas, Delhi, the work of digging the foundation of this plot for raising boundary wall was going on at the behest of accused, Amlesh and during such operation, the owner of this plot i.e accused herein did not take any sufficient care against any probable danger to human life from fall of this building or any part thereof as a result of which death of a labourer namely Sh. Shyam Prasad was caused due to fall of undergoing construction, which occurred due to rash and negligent behaviour of the accused herein. Hence, a charge-sheet was filed against the accused for offences U/Ss 288 and 304A of The Indian Penal Code, 1860 (in short referred to as IPC hereinafter) after the completion of entire investigation.
2. The accused appeared in the court and she was supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.P.C hereinafter).
3. On 01/02/2001, a notice was framed against the accused for the offences U/Ss 288 and 304A of IPC to which she did not plead guilty and claimed trial.
4. From the side of prosecution, PW1 HC Sh. Hari Om, PW2 Sh. Satender Prasad, PW3 Lady ASI Ms. Harjinder Kaur, PW4 Dr. Mukta Rani and PW5 SI Sh. Ajay Kumar were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on 30/05/07 U/s 313 Cr.PC in which she denied the allegations against her as false and incorrect and also wanted to lead Defence Evidence (in short referred to as D/E hereinafter).
6. No Defence Witness (in short referred to as D/W hereinafter) was produced by accused despite sufficient time given to her for this purpose and hence D/E was closed.
7. Oral final arguments were heard from Ld. APP for state and from Ld. Counsel, Sh. K.S. Verma on behalf of the accused.
8. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against the accused for the offences for which notice was framed against her and that she is liable to be punished strictly as per law.
9. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused was falsely implicated in this case; that there was no negligence on the part of the accused as alleged; that no independent and reliable person of the locality was joined by the Investigating Officer (in short referred to as IO hereinafter) during investigation of this case despite the fact that alleged incident had happened at a very busy locality; that photographs of the alleged wall, which had fallen down, had not been got exhibited on record; that there are several material contradictions even in the depositions of PW's examined in this matter on behalf of state; that the case does not stand proved beyond reasonable against the accused for the alleged offences and hence she is entitled to be acquitted.
10. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
11. Before proceeding further on merits of this case, I refer to the provisions of law for which notice of accusation was given to her.
12. Sec. 288 of IPC provides as under:
''288. Negligent conduct with respect to pulling down or repairing buildings - Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, 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 rupees, or with both''.
13. Sec. 304A of IPC provides as under:
''304A. Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both''.
14. In view of the above mentioned provisions of law, it has to be seen now whether the accused herein took sufficient care in order to guard against any probable danger of human life from the fall of alleged building and whether the labourer, Sh. Shyam Prasad actually died due to rash and negligent behaviour on the part of the accused in this matter.
15. Now turning to the evidence on record, PW1 HC Sh. Hari Om deposed that on 28/06/99, he was posted at PS : Khajuri Khas, Delhi; that he received DD No. 8A from the Duty Officer; that thereafter he proceeded to the spot alongwith Ct Sh. Gajender Singh and reached at H. No. H-14, 35 Feet Road, Radha Krishan Marg, West Karawal Nagar, Delhi; that the accused present in the court (on the date of his deposition i.e 19/07/01) was getting a boundary wall construction after digging the foundation of the wall; that the soil was wet and loose and the labourers working at the spot had informed the accused that the soil was loose and that there was apprehension of danger but the accused ignored this advice and due to deep digging, the adjoining wall had fallen down and one labourer crushed under the wall and died at the spot; that on receiving DD entry mark A, he i.e PW1 had put his endorsement Ex. PW1/A upon it and gave the 'ruqqa' to Ct Sh. Gajender Singh for registration of FIR in this case; that Ct Sh. Gajender Singh went to the PS and got the case registered and returned to the spot and further investigation of this case was handed over to SI Sh. Anil. This witness was not cross- examined at all by Ld. Defence Counsel, Sh. K.S. Verma or by accused herself despite opportunity given. Hence, the entire evidence of this witness completely remains unrebutted and unchallenged from the side of the accused.
16. PW2 Sh. Satender Prasad deposed that on 28/06/99, his cousin Shyam Prasad had expired in an accident when he was working as labourer and the wall of adjoining plot had fallen upon him as the soil was loose because of heavy rain during previous night and there was deep digging of the foundation of the adjoining wall which had fallen upon him; that he also identified the dead body of Sh. Shyam Prasad. This witness was also not cross-examined at all on behalf of the accused despite opportunity given and hence testimony of this witness also remains completely unrebutted and unchallenged from the side of the accused.
17. PW3 Lady ASI Ms. Harjinder Kaur had deposed that on 28/06/99, she was posted as Duty Officer at PS : Khajuri Khas, Delhi and recorded FIR in this case of which copy is on record as Ex. PW3/A. This witness was also not cross-examined on behalf of the accused despite opportunity given and hence testimony of this witness also remains completely unrebutted and unchallenged from the side of the accused.
18. PW4 Dr. Mukta Rani deposed that on 30/06/99, she was posted at GTB Hospital, Delhi and conducted post-mortem (in short referred to as P/M hereinafter) on the dead body of Sh. Shyam Prasad and prepared P/M report No. 472/99, which was Ex PW4/A bearing her signatures at point A; that in her opinion, the cause of death was due to shock as a result of multiple anti-mortem injuries on head i.e skull and brain and internal organs produced by blunt force impact and that the time since death was two days. This witness was also not cross-examined on behalf of the accused despite opportunity given and hence testimony of this witness remains completely unrebutted and unchallenged from the side of the accused.
19. PW5 SI Sh. Ajay Kumar deposed, inter alia, that on 28/06/99, he was posted at PS Khajuri Khas, Delhi and he was given investigation of the present case in the evening; that he reached at the spot i.e West Karawal Nagar, Krishan Marg, 35 Foota Road, where one dead body was lying and that his name was revealed as Shyam Prasad; that Ct Gajender also met him; that he prepared inquest proceedings Ex. PW5/A bearing his signatures at point A and sent the dead body through Ct Sh. Gajinder for preservation vide Ex. PW5/B and also prepared site plan Ex. PW5/C; that he arrested the accused and prepared her personal search memo Ex. PW5/D. This witness also identified the accused in the court on the date of his deposition i.e on 12/01/07. He further deposed that on 30/06/99, he gave an application Ex. PW5/F for conducting P/M of the deceased and after completion of the P/M, the dead body was given to the relatives of deceased vide Ex. PW5/I. He further deposed that after completion of the investigation, he filed the charge-sheet. This witness was also not cross- examined at all on behalf of the accused despite opportunity given and hence testimony of this witness also remains completely unrebutted and unchallenged from the side of the accused.
20. The statement of accused U/s 313 Cr.PC was recorded on 30/05/07 in which she denied the allegations against her as false and incorrect and also wanted to lead defence evidence but despite sufficient time given to her for this purpose, she did not produce any D/E nor she produced herself in the witness box to depose as her own defence witness for the reasons best known to her.
21. One of the contentions of Ld. Defence Counsel was that no independent and reliable person at the spot was joined by the IO during investigation. In this regard, I am of the considered opinion that in the given facts and circumstances of this case, there was no sufficient time left with the IO to have searched for independent witnesses of the locality. I am further of the considered opinion that IO concerned did his best within his reach in a panic situation prevailing in this matter on due date and time. Hence, I do not find any lapse on the part of the IO on this count.
22. The other main contention of Ld. Defence Counsel was that photographs of the alleged wall have not been got exhibited on record during trial before this court. In this regard, I am of the considered opinion that exhibiting of photographs might have been an extra efforts on the part of prosecution to prove the case against the accused but this case stands well proved beyond reasonable doubt from the other evidence on record.
23. As already mentioned, five prosecution witnesses have deposed in this matter against the accused and testimonies of all these witnesses remain completely unrebutted and unchallenged from the side of the accused despite opportunities given for their cross-examinations. Accused has also failed to lead any evidence in her defence despite sufficient time given for this purpose.
24. In view of the above mentioned reasons and more particularly in view of the fact that evidence of all the PWs examined in this case remains completely unrebutted and unchallenged from the side of accused, the prosecution has been successful in proving the case against the accused beyond reasonable doubt for the offences U/Ss 288 and 304A IPC respectively. Accordingly, I convict the accused, Smt. Amlesh W/o Sh. Suraj Pal Singh for these offences. Let certified copy of this judgment be given to the accused free of cost. Now to come up for hearing arguments on point of sentence on 17/07/07 from 11:30 a.m onwards.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 13/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI State V/s Smt. Amlesh FIR No. 239/99 U/s 288/304A IPC PS : Khajuri Khas, Delhi
a) Sl. No. of the case : 113/2
b) Date of the commission : 28/06/99 of offence
c) Name of the : HC Sh. Hari Om complainant
d) (1) Name of the accused, : Smt. Amlesh, W/o Sh.
their parentage and Suraj Pal Singh, R/o residence A/55, Gali No. 36, West Karawal Nagar, Som Bazar, Delhi
e) Offence complained of : Sec 288/304A IPC or proved
f) Plea of the accused : Pleaded not guilty
g) Final order :
h) Date of such order : 13/07/07
i) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused is that on 28/06/99 at about 11:00 a.m, at plot No. H.-14, 35 Foota Road, Radha Krishan Marge, West Karawal Nagar, Delhi, within the jurisdiction of Police Station (in short referred to as P/S hereinafter) Khajuri Khas, Delhi, the work of digging the foundation of this plot for raising boundary wall was going on and during such operation, the owner of this plot i.e accused herein did not take any sufficient care against any probable danger to human life from fall of this building or any part thereof as a result of which death of a labourer namely Sh. Shyam Prasad was caused due to fall of undergoing construction, which occurred due to rash and negligent behaviour of the accused herein. Hence, a charge-sheet was filed against the accused for offence U/s 288 and 304A of The Indian Penal Code, 1860 (in short referred to as IPC hereinafter) after completion of entire investigation.
2. The accused appeared in the court and he was supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.P.C hereinafter).
3. On 01/02/2001, a notice was framed against the accused for the offence U/s 288 and 304A IPC to which he did not plead guilty and claimed trial.
4. From the side of prosecution PW1 HC Sh. Hari Om, PW2 Sh. Sideshwar Prasad, PW3 ASI Sh. Harjinder Kumar, PW4 Dr. Mukta Rani and PW5 SI Sh. Ajay Kumar were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on 30/05/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect and also wanted to lead Defence Evidence (in short referred to as D/E hereinafter).
6. No Defence Witness (in short referred to as D/W hereinafter) was produced by accused and hence D/E was closed.
7. Oral final arguments were heard from Ld. APP for state and from Ld. Counsel on behalf of the accused.
8. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against the accused for the offences for which notice was framed and that she is liable to be punished strictly as per law.
9. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused was falsely implicated in this case; that there was no negligent on the part of the accused as alleged; that no independent and reliable person of the locality was joined by the Investigating Officer (in short referred to as IO hereinafter) during investigation of this case despite the fact that alleged incident was happened at a very busy locality; that photographs of the alleged wall which had been fallen had not been got exhibited on record; that there are several material contradictions even in the deposition of PWs examined in this matter on behalf of state; that the case does not stand proved beyond reasonable against the accused for the alleged offences and she is entitled to be acquitted.
10. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
11. Before proceeding further on merits of this case, I refer to the provisions of law for which notice of acquisition was given to her.
12. Sec. 288 of IPC provides as under:
''288. ..................................................
13. Sec. 304A of IPC provides as under:
''304A. .............................................
14. In view of the above mentioned provisions of law, it has to be seen now whether the accused herein took sufficient care in order to guard against any probable danger of human life from the fall of alleged building and whether the labourer, Sh. Shyam Prasad actually died due to rash and negligent behaviour on the part of the accused in this matter.
15. Now turning to the evidence on record, PW1 HC Sh. Hari Om deposed that on 28/06/99, he was posted at PS : Khajuri Khas, Delhi; that he received DD No. 8A from the Duty Officer; that he proceeded to the spot alongwith Ct Sh. Gajender Singh to the spot i.e H. NO. H-14, 35 Feet Road, Radha Krishan Marg, West Karawal Nagar, Delhi; that the accused present in the court on the date of his deposition i.e 19/07/01; that the accused was getting boundary wall construction after digging the foundation of the wall. The soil was wet and loose and labourers were working at the spot had informed the accused that the soil was loose and that there was apprehension of danger but the accused ignored it and due to deep digging adjoining wall fallen down and one labourer crushed into the wall and died at the spot; that DD entry was marked A on which he had put his endorsement Ex. PW1/A and gave the ruqqa to Ct Sh. Gajender Singh for registration of FIR in this case; that Ct Sh. Gajender Singh went to the PS and got the case registered and returned to the spot and further investigation of this case was handed over to SI Sh. Anil. This witness was not cross-examined at all on behalf of his Ld. Counsel despite opportunity given. Hence, the evidence of this witness remains unrebutted and unchallenged from the side of the accused.
16. PW2 Sh. Satender Prasad depsed that on 28/06/99, his cousin has expired in an accident when he was working as labourer and wall of adjoining plot fallen upon him as the soil was loose and there was deep digging of the foundation of the adjoining wall which fallen upon him; that he also identified the dead body of Sh. Shyam Prasad. This witness was also not cross-examined on behalf of the accused despite sufficient opportunity given and hence testimony of this witness remains completely unrebutted and unchallenged from the side of the accused.
17. PW3 Lady ASI Sh. Harjinder Kaur has deposed that on 28/06/99, she was posted as Duty Officer at PS : Khajuri Khas, Delhi and recorded FIR in this case of which copy is on record as Ex. PW3/A. This witness was also not cross-examined on behalf of the accused despite sufficient opportunity given and hence testimony of this witness remains completely unrebutted and unchallenged from the side of the accused.
18. PW4 Dr. Mukta Rani deposed that on 30/06/99, he she was posted at GTB Hostile, Delhi and conducted post-mortem (in short referred to as P/M hereinafter) on the dead body of Sh. Shyam Prasad and prepared P/M report No. 472/99, which was Ex PW4/A bearing her signatures at point A; that in her opinion the cause of dead body was due to shock as a result of multiple anti-mortem injuries on head i.e skull and brain and internal organ produced by blunt force impact and that the time since death was two days. This witness was also not cross- examined on behalf of the accused despite sufficient opportunity given and hence testimony of this witness remains completely unrebutted and unchallenged from the side of the accused.
19. PW5 SI Sh. Ajay Kumar deposed, inter alia, that on 28/06/99, he was posted at PS : Khajuri Khas, Delhi and he was given investigation of the present case in the evening; that he reached at the spot i.e West Karawal Nagar, Krishan Marg, 35 Foota Road, where one dead body was lying and that his name was revealed as Sh. Shyam Prasad; that Ct Sh. Gajender also met him; that he prepared inquest proceedings Ex. PW5/A bearing his signatures at point A and sent the dead body through Ct Sh. Gajinder for preservation vide Ex. PW5/A and also prepared site plan Ex. PW5/C; that he arrested the accused and prepared her personal search memo Ex. PW5/D. This witness also identified the accused in the court on the date of his deposition i.e 12/01/07; that he further deposed that on 30/06/99, he gave an application Ex. PW5/F for conducting P/M of the deceased and after completion of the P/M, the dead body was given to the relatives of deceased vide Ex. PW5/I; that he recorded statement of witnesses and after completion of the investigation he filed the charge-sheet. This witness was also not cross- examined on behalf of the accused despite sufficient opportunity given and hence testimony of this witness remains completely unrebutted and unchallenged from the side of the accused.
20. The statement of accused U/s 313 Cr.PC was recorded on 30/05/07 in which she denied the allegation against her as false and incorrect and also wanted to lead defence evidence but despite sufficient time given for this purpose she did not produce any D/E nor she produced herself in the witness box to depose as her own witness for the reasons best known to her.
21. One of the contention of Ld. Defence Counsel was that no independent and reliable person at the spot was joined by the IO. In this regard, I am of the considered opinion that in the given facts and circumstances, there was no sufficient time with the IO to have searched for independent witness of the locality. I am further of the considered opinion that IO concerned did his best within his reach in a panic situation prevailing in this matter on due date and time. Hence, I do not find any lapse on the part of the IO on this count.
22. The other main contention of Ld. Defence Counsel was that photographs of the alleged wall have not been got exhibited on record before this court. In this regard, I am of the considered opinion that exhibiting of photographs might have been an extra efforts to prove the case against the accused and if the case stands proved beyond reasonable doubt from the other evidence on record, the exhibiting of photographs of the alleged wall is not such a circumstance so as to destroy the whole case.
23. As already mentioned, five witnesses have deposed in this matter against the accused and testimonies of all these PWs remain completely unrebutted and unchallenged from the side of the accused despite sufficient opportunities given. In these circumstances, the other piece of evidence does not get much significance. Accused has not put any evidence in rebuttal despite opportunity given.
24. In view of the above mentioned reasons and more particularly in view of the facts that evidence of all the PWs examined in this case remain completely unrebutted and unchallenged, the prosecution has been successful in proving the case against the accused beyond reasonable doubt for the offences U/Ss 288 and 304A IPC. Accordingly, I convict accused, Smt. Amlesh W/o Sh. Suraj Pal Singh for these offences. Let certified copy of this order be given dasti to the accused against due receipt free of cost. Now to come up for hearing arguments on point of sentence on 16/07/07 at 11:30 a.m sharp. ANNOUNCED IN THE OPEN COURT TODAY i.e on 13/07/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net State V/s Sunil Kumar, etc FIR No. 09/99 U/s 380/411/34 IPC PS : Dilshad Garden, Delhi
a) Sl. No. of the case : 01/0
b) Date of the commission : 25/12/98 of offence
c) Name of the : Sh. Ganga Saran complainant
d) (1) Name of the accused, : (1) Sunil Kumar, S/0 their parentage and Sh. Ganga Saran, R/o residence 1808, DDA, Janta Flats, GTB Enclave, Delhi and (2) Smt. Simmi @ Sonia @ Sonu, W/o Sh. Bittoo, R/o H. NO. 1809, Janta Flats, GTB Enclave, Delhi (Proclaimed Offender)
e) Offence complained of : Sec 380/411/34 IPC or proved
a) Sl. No. of the case : 01/0
f) Plea of the accused : Both pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 30/05/2007
i) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused, Sunil Kumar and Smt. Simmi @ Sonia was to the effect that on 25/12/98 between 8:00 p.m to 9:00 p.m at House No. 1808, DDA Flats, GTB Enclave, Delhi within the jurisdiction of Police Station (in short referred to as P/S hereinafter) Dilshad Garden, Delhi, both of the accused, in furtherance of their common intention, committed theft of three gold 'mohar', one 'kantha', two 'karas', ponchi', 'hansli', 'pajeb' of silver of 500 gms, 'kara' 750 gms, sample 8 'tola', two ear rings' one gold ring and cash Rs. 10,000/- from inside the house of complainant Sh. Ganga Saran belonging to him and without his consent and they also got recovered Rs. 400/- as cash and four gold 'balis' belonging to complainant from Raghubir Nagar, Rajouri Garden, Delhi on 13/01/99. In this way, a charge-sheet was filed against both the accused after the completion of entire investigation for the offence U/s 380 r/w Sec. 34 of The Indian Penal Code, 1860 (in short referred to as IPC hereinafter) as well as U/s 411 of IPC r/w Sec. 34 of IPC.
2. Both accused appeared in the court and they were supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.PC hereinafter).
3. On 16/04/99, a charge was framed against both the accused for the offence U/s 380 r/w Sec. 34 of IPC as well as U/s 411 IPC r/w Sec. 34 IPC to which they did not plead guilty and claimed trial.
4. From the side of prosecution PW1 Sh. Ganga Saran, PW2 HC Ms. Santosh, PW3 Sh. Shyam Babu, PW4 Lady Ct Ms. Rajwati, PW5 Sh. Pardeep, PW6 HC Sh. Harinder and PW7 ASI Ms. Renu were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused, Sumil Kumar only was recorded on 24/05/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect and also wanted to lead Defence Evidence (in short referred to as D/E hereinafter). Co-accused, Simmi @ Sonia was declared as proclaimed offender (in short referred to as P/O hereinafter) during trial as she absented intentionally on several dates.
6. No Defence Witness (in short referred to as D/W hereinafter) was produced by accused, Sunil Kumar and hence D/E was closed.
7. Final arguments were heard from Ld. APP for state and from Ld. Counsel, Sh. K.D. Sharma on behalf of the accused on 29/05/07.
8. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against both the accused for the offences for which charge was framed and that they are liable to be punished strictly as per law.
9. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that complainant, Sh. Ganga Saran is father of accused, Sunil; that no theft was committed either by accused, Sunil Kumar or by co-accused, Smt. Simmi, in the company of Sunil Kumar, as alleged, from the house of Sh. Ganga Saran; that accused were falsely implicated in this case; that there are several material contradictions in the testimonies of Pws examined in this case; that material PWs have not supported the prosecution case against any of the accused; that no independent and reliable person of the locality was joined by the Investigating Officer (In short referred to as I/O hereinafter) during investigation of this case nor such reliable person produced for evidence during trial; that the essential ingredients of the alleged offences do not stand satisfied beyond reasonable doubt on the basis of testimonies of PWs' examined in this case. Hence, acquittal of the accused, Sunil Kumar and also of co-accused, Smt. Sonia (who is P/O) was prayed for.
10. I perused the entire judicial file minutely in view of the above mentioned rival submissions.
11. Before proceeding further on merits of this case, I refer to the provisions of law for which charge was framed in this case.
12. Sec. 380 of IPC provides as under:
''380. Theft in dwelling house, etc - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extended to seven years, and shall also be liable to fine''.
13. Sec. 411 of IPC provides as under:
''411. Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both''.
14. Sec. 34 of IPC provides as under:-
''34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone''.
15. In view of the above mentioned provisions of law, it has to be seen whether essential ingredients of theft in dwelling house or of retaining stolen property by accused stand satisfied or not beyond reasonable doubt in this case.
16. Now turning to the evidence on record, PW1 Sh. Ganga Saran deposed mainly to the effect that certain jewellery items and some cash amount was found missing from his house when he searched the same; that he himself did not see any of the accused committing theft in his house. In his cross- examination conducted by Ld. Defence Counsel, he admitted that he did not give any statement to the police regarding this case; that he was not present in his house at the time of theft; that no recovery was effected in his presence; that police did not enquire from him regarding this case; that he did not have documentary proof regarding jewellery items allegedly stolen from his house. In this way, this witness did not support the prosecution case at all against any of the accused.
17. PW2 HC Smt. Santosh happens to be a formal witness as she had taken personal search of accused Smt. Sonia on the date of her arrest.
18. PW3 Sh. Shyam Babu also happens to be a formal witness as he simply deposed regarding making of a phone call by one of the accused from his shop.
19. PW4 Lady Ct Ms. Rajwati deposed about taking part in the investigation of this case but no recovery was effected in her presence as per her own deposition. Hence, she has also not supported the prosecution case against any of the accused beyond reasonable doubt.
20. PW5 Sh. Pardeep did not support the prosecution case and he was declared hostile. Nothing incriminating has come on record against any of the accused from his cross-examination conducted by Ld. APP on behalf of state.
21. PW6 HC Sh. Harinder also admitted in his cross-examination that he did not know if complainant stated to him regarding missing of four ear rings; that he could not tell the time when he reached at ISBT Kashimiri Gate, Delhi and could not tell the period of stay at ISBT, Delhi; that he could not tell the time of reaching at PS. In this way, there are several material contradictions in his deposition also and he has also not supported the prosecution case.
22. PW7 ASI Ms Renu also happens to be a formal witness as she was posted as Duty Officer on 12/01/99 and recorded FIR in this matter of which copy is on record as Ex. PW7/A.
23. No other PW was examined on behalf of the state.
24. Accused, Sunil Kumar had denied allegations against him as false and incorrect in his statement recorded U/s 313 Cr.PC.
25. One of the main contentions of Ld. Defence Counsel was that no independent and reliable person of the locality was joined by IO during investigation of this case. I find force in this submission of the Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, ''Darshan Singh V/s state of Haryana'' reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
''6. The recovery had been effected at the bus stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses''.
26. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely ''Pardeep Narayan, etc V/s State of Maharastra'' reported as 1995(2) CC Cases, Page- 133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable person of the locality in this case. The ratio of Darshan Singh's Case (Supra) and Pardeep Narayan's Case (Supra) is found fully applicable to the case under discussion.
27 In view of the above mentioned discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that the prosecution side has miserably failed to satisfy this court beyond reasonable doubt regarding commission of offences U/s 380 IPC r/w Sec. 34 IPC as well as U/s 411 IPC r/w Sec. 34 IPC. Hence, both the accused herein are entitled to be acquitted for these offences. Accordingly, accused, Sunil Kumar S/o Sh. Ganga Saran and Smt. Simmi @ Sonia W/o Sh. Bitto (who is P/O) are hereby acquitted for the above mentioned offences. Their bail bonds are discharged and their sureties are also discharged. The case property to remain exclusively with the superdar if already released on superdari. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 30/05/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI IN THE COURT OF DR. SHAHABUDDIN :
METROPOLITAN MAGISTRATE : KARKARDOOMA COURTS, DELHI Sent on net State V/s Chatar Bhuj FIR No. 186/02 U/s 25 of Arms Act PS : Khajuri Khas, Delhi
a) Sl. No. of the case : 141/2
b) Date of institution of : 01/10/02 case
c) Date of the commission : 17/09/02 of offence
d) Name of the : Ct Sh. Rohtas complainant
e) (1) Name of the accused, : Chatarbhuj @ their parentage and Santosh, S/o Sh. Om residence Parkash, R/o C-154, Gali No. 7, Nehru Vihar, Delhi
f) Offence complained of : Sec 25 of Arms Act or proved
g) Plea of the accused : Pleaded not guilty
a) Sl. No. of the case : 141/2
h) Final order : Acquitted
i) Date on which judgment 28/06/2007 reserved
j) Judgment delivered on : 30/06/2007
a) Sl. No. of the case : 141/2
b) Date of institution of : 01/10/02 case
c) Date of the commission : 17/09/02 of offence
d) Name of the : Ct Sh. Rohtas complainant
e) (1) Name of the accused, : Chatarbhuj @ their parentage and Santosh, S/o Sh. Om residence Parkash, R/o C-154, Gali No. 7, Nehru Vihar, Delhi
f) Offence complained of : Sec 25 of Arms Act or proved
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
a) Sl. No. of the case : 141/2
i) Date on which judgment 28/06/2007 reserved
j) Judgment delivered on : 30/06/2007
i) BRIEF STATEMENT OF THE REASONS FOR DECISION.
1. The main prosecution case against the accused is that on 17/09/02 at about 10:00 p.m at Bhajanpura Bus stand, Wazirabad Road, Delhi, within the jurisdiction of Police Station (in short referred to as P/S hereinafter), the accused was found in possession of one button actuated knife without any licence/permit and in contravention of notification of Delhi Administration in this regard. Hence, a charge- sheet was filed against the accused for the offence U/s 25 of Arms Act, 1959 (in short called as Arms Act hereinafter).
2. The accused appeared in the court and he was supplied copies of documents in compliance to the provisions of Sec. 207 of The Code of Criminal Procedure 1973 (in short referred to as Cr.PC hereinafter).
3. On 18/10/02, a charge was framed against the accused for the offence U/s 25 of Arms Act to which he did not plead guilty and claimed trial.
4. From the side of prosecution PW1 ASI Sh. Ram Manohar, PW2 Ct Sh. Rohtas, PW3 Ct Sh. Mohd. Umar and PW4 ASI Sh. Jagannath Prasad were examined and then remaining Prosecution Evidence (in short referred to as P/E hereinafter) was closed.
5. Statement of accused was recorded on 26/06/07 U/s 313 Cr.PC in which he denied the allegations against him as false and incorrect but did not want to lead Defence Evidence (in short referred to as D/E hereinafter).
6. Final arguments were heard on 28/06/07 from Ld. APP for state and from Ld. Counsel, Sh. Mahesh Kumar on behalf of the accused.
7. The main submission of Ld. APP for state was to the effect that on the basis of entire material on record, the case stands well proved beyond reasonable doubt against the accused for the offence for which charge was framed against him and that he is liable to be punished strictly as per law.
8. On the other hand, the main submissions of Ld. Defence Counsel were to the effect that accused was falsely implicated in this case; that nothing was recovered from his possession; that he was lifted from his house and later on a knife was falsely planted upon him by the police officials in the P/S itself; that no independent and reliable person of the locality was joined during arrest as well as during investigation of this matter by the Investigating Officer (in short referred to as I/O) of this case nor such witness examined by state during trial; that no satisfactory explanation has been given for this serious lapse on the part of the IO; that only four police officials have deposed in this matter and the conviction cannot be held merely on the basis of testimonies of police officials alone in such like cases; that there are several material contradictions in the depositions of PWs examined in this case on behalf of the state; that essential ingredients of offence U/s 25 of Arms Act have not been satisfied by the prosecution side beyond reasonable doubt. On the basis of these grounds mainly, acquittal of the accused was prayed for.
9. I perused the entire judicial file minutely in view of the above mentioned rivals submissions.
10. Before proceeding further on merits of this case, I refer to the provisions of law for which charge was framed in this case.
11. Sec. 25 of Arms Act provides as under:
''25. (1) ..................................................................... (1B) Whoever
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under Section 4, any arms of such class or description of that section; or
(c) to (i) ......................................................................
shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine:
Provided that Court may, for any adequate and special reasons to be recorded in the Judgment, impose a sentence of imprisonment for a term of less than one year''.
12. Now turning to the evidence on record, PW1 ASI Sh. Ram Manohar is simply a formal witness as he was Duty Officer on 17/09/02 and recorded FIR in this case of which copy is on record as Ex PW1/A.
13. PW2 Ct Sh. Rohtas and PW3 Ct Sh. Mohd Umar respectively deposed mainly to the effect that on 17/09/02, they were on duty of area patrolling; that they stopped one TSR in which accused herein was sitting and on his personal search, a button actuated knife was recovered from his possession and that accused alongwith recovered knife was subsequently handed over to the IO of this case ASI Sh. Jagannath Prasad. In this way, evidence of both these witnesses is not sufficient in itself to connect the accused with the commission of crime beyond reasonable doubt until and unless the same is corroborated in material particulars by other evidence on record and more particularly by the evidence of the IO of this matter.
14. The next and the last witness examined on behalf of the state in this case is PW4 ASI Sh. Jagannath Prasad, who happens to be the IO of this matter. In his examination-in-chief, he deposed mainly regarding various steps taken by him during investigation of this case. However, in his cross- examination conducted by Ld Defence Counsel, he deposed, inter alia, that he was in uniform and went to the spot on foot; that he was having his service pistol and IO kit; that he conducted proceedings in the road light; that about 2-4 public persons were present at the spot but they refused to join the investigation; that he could not tell the description of the public persons, who refused to join the investigation; that they remained at the spot for about 2 and ½ hours; that he conducted personal search of the accused but he did not offer his own search to the accused. In this way, there are several material contradictions in his deposition. He has himself admitted that public persons were available at the spot but they did not join the investigation. It does not inspire confidence. If the public persons refused to join investigation intentionally, he ought to have taken legal action against them as per law but no such steps have been taken by the IO as revealed from the record.
15. One of the main contentions of Ld. Defence Counsel during the course of oral final arguments was that IO did not join the independent and reliable persons of the locality during investigation of this case and that it is a serious lapse on his part. I find force in this contention of Ld. Defence Counsel. In this regard, I further find support from an important judgment of Hon'ble Punjab and Haryana High Court given in a case, namely, ''Darshan Singh V/s state of Haryana'' reported as 1997 (3) Crimes, Page-392. In para-6 of this judgment, the Hon'ble Punjab and Haryana High Court held as under:-
''6. The recovery had been effected at the bus stand. Large number of persons pass-through that place. There are shops nearby. It is somewhat surprising that still the explanation is forthcoming that the witnesses from the public were not available. The only conclusion that can be drawn in such a situation is that no genuine attempt or even an attempt to join the public witnesses was made. When genuine attempt has not been made to join the public witnesses, one is constrained to observe that in the facts of the present case, it is difficult to believe the official witnesses''.
16. There is also an important judgment of Hon'ble Supreme Court of India on this point given in a case namely ''Pardeep Narayan, etc V/s State of Maharastra'' reported as 1995(2) CC Cases, Page- 133 (Supreme Court). The Hon'ble Apex Court also emphasised the necessity of independent and reliable person of the locality in this case. The ratio of Darshan Singh's Case (Supra) and Pardeep Narayan's Case (Supra) is found fully applicable to the case under discussion.
17. The other main contention of Ld. Defence Counsel was that only police officials have deposed in this case and only police officials have been cited as witnesses in the charge-sheet despite the fact that accused was arrested at a very busy place. I find force in this contention also of Ld. Defence Counse. Admittedly, the five police officials have been cited as witnesses in the charge-sheet and four of these police officials have deposed in this matter on behalf of the state. In my considered opinion, the conviction cannot be held on the basis of testimonies of police officials alone in such like cases. In this regard, I further find support from an important judgment of Hon'ble Supreme Court of India given in a case namely, ''Sanspal Singh V/s State of Delhi'' 1999 Crl. L.J., Page-19 (Supreme Court). In this judgment, the Hon'ble Apex Court held mainly to the effect that recovery of the arms was based on evidence of police officials alone and that no public witnesses were associated to witness the recovery even though such witnesses were available and hence the conviction on the basis of the testimonies of police officials alone was not found maintainable by the Hon'ble Apex Court in that case.
18. There is yet another important judgment of Hon'ble Delhi High Court on this point given in a case namely, ''Jagdish Rai V/s State'', 1988 Crl. L.J, Page- 785 (Delhi High Court). In this judgment, the Hon'ble Delhi High Court held mainly to the effect that prosecution story depended exclusively on the evidence of the police officials which was held to be unworthy of credit and hence conviction of the accused was set aside in that case on this ground.
19. There is yet another judgment of Hon'ble Delhi High Court on this point given in a case namely ''Pawan Kumar V/s Delhi Administration'', 1989 Crl. L.J, Page-127 (Delhi High Court). The Hon'ble Delhi High Court held in this case mainly to the effect that the I/O concerned did not make earnest efforts to join independent witnesses and in those circumstances, the recovery of the knife from the accused was considered doubtful in that case by the Hon'ble Delhi High Court and hence the accused was acquitted.
20. In my considered opinion, the ratio of the judgments given in Sanspal Singh's Case (Supra), Jagdish Rai's Case (Supra) and Pawan Kumar's Case (Supra) applies equally to the case under discussion because the IO in the present case also did not make any sincere efforts to join any public witnesses during the course of investigation.
21. In view of the above mentioned discussion and on the basis of entire material on record, including oral as well as documentary evidence on record, I am of the considered opinion that the prosecution side has miserably failed to satisfy this court beyond reasonable doubt regarding commission of offence U/s 25 of Arms Act by the accused. Hence, the accused is entitled to be acquitted. Accordingly, accused, Chatarbhuj @ Santosh S/o Sh. Om Parkash is hereby acquitted for the offence U/s 25 of Arms Act. His bail bonds are discharged and his surety is also discharged. The case property be destroyed/disposed of as per rules after expiry of period of appeal/revision, as the case may be. File be consigned to Record Room as per rules after expiry of period of appeal/revision, as the case may be.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 30/06/2007 (DR. SHAHABUDDIN) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI