Delhi District Court
State vs . Kuldeep Etc., Fir No. 131/92, Ps Model ... on 16 March, 2012
State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.1 IN THE COURT OF SH. DHEERAJ MOR, METROPOLITAN MAGISTRATE, ROHINI COURTS, DELHI. FIR NO. 131/92 P.S. Model Town U/s. 149/353/186/34 IPC State Vs. Kuldeep & others JUDGMENT
A. SL. NO. OF THE CASE : 590/06
B. DATE OF INSTITUTION : 24.10.1992
C. DATE OF OFFENCE : 15.05.1992
D. NAME OF THE : Sh. M.L. Wadhwa, Inspector Zone402
COMPLAINANT DESU.
E. NAME OF THE : 1. Kuldeep S/o Sh. Laxami Narain
ACCUSED 2. Bhushan S/o late Sh. Bhagwan Das
3. Kailash Chander S/o late Sh. Sharda
Ram.
F. OFFENCE : U/s 149/353/186/34 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Acquittal
I. DATE OF SUCH ORDER : 16.03.2012
Brief Statement of Reasons for Decision
1. Briefly stated, the facts of the case as unfolded from the charge sheet are that on 16.05.1992, a complaint was lodged at P.S. Model Town by the complainant Sh. M.L. Wadhwa, Inspector Zone402, DESU alleging that on 15.05.1992 at 9.30p.m., several residents of Bijli Apartment, Kalyan Vihar and State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.2 Vijay Vihar gathered at the complaint center of DESU for complaining about the disruption/ disconnection of the electric supply on account of load shedding. In the said complaint, the complainant has alleged that the aforesaid residents started misbehaving, abusing and manhandling the staff members of DESU on duty. As per the complaint, the said fact was intimated to police control room on 100 number and subsequently, the police officials came at the spot and rescued the staff members of DESU. It is further alleged by the complainant that police personnel took some members of the said mob and staff members of DESU to police station Model Town. In respect of the allegations made by the complainant against the present accused persons, the complainant has alleged that in the meanwhile another mob consisting of the residents of State Bank Colony, attacked the aforesaid complaint center of DESU. It is alleged in his complaint by the complainant, that it was conveyed/reported to him that the said mob was being led by the accused persons namely Kailash, Kuldeep and Bhushan. The present case pertains to the incident that was committed by the residents of State Bank Colony to whom the complainant has referred as mob that attacked the office of the complainant after the previous mob consisting of residents of Bijli Apartment, Kalyan Vihar and Vijay Nagar was dispersed. It is alleged in the complaint that the mob consisting of accused persons pelted stones on his office building and damaged the government property including telephone instruments, window panes, desert coolers, cycle of workers, alongwith their equipments/ tools. It is alleged by the complainant in his complaint that he had received the State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.3 said information of the incident/offence at about 11.45p.m. on the said date i.e. 15.05.1992 from Sh. Hari Om, telephone operator. On the basis of the said complaint, the present FIR for forming unlawful assembly, voluntarily obstructing public servant in discharge of their duties and using criminal force against the public servants to deter them from discharge of their duties was registered against all the accused persons. During investigation all the accused persons were arrested and after completion of investigation the present challan was filed in the court for its trial on merits.
2. All the accused persons were summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed with the challan were supplied to the accused persons. Prima facie charge U/s 149/353/186/34 IPC was made out against all the accused persons. Accordingly, on 05.08.1998 the charge was framed by the Ld. Predecessor of this court. All the three accused persons pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined nine witnesses. PW1 ASI Tota Singh has testified that 16.05.1992 he was posted as a duty officer and on that day, he had registered the present FIR. He has proved the said FIR as Ex.PW1/A. PW1 DO ASI Tota Singh was inadvertently re examined as PW7.
4. PW2 Sh. A.K. Gupta, AE, Zone No. 402, New Delhi has testified that on State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.4 15.05.1992 he was posted as AE in Zone No. 402, Civil Line District, DESU. He has further deposed that at about 10.00p.m. Some persons belonging to State Bank Colony gathered at complainant center situated at Gujrana Wala and started shouting and creating noise. He has further testified that telephone operator informed him and initiated talks between him and the said persons. He has deposed that he tried to pacify them, but they turned violent and started breaking telephone wires, glasses, tube lights etc. He has deposed that on the next day an FIR was lodged by him and Sh. M.L. Wadhwa. He has proved his complaint as Ex.PW2/A. The said witness was resiling from his earlier statement, therefore, the Ld. APP for state cross examined him. In his cross examination, the said witness has persisted that the said incident did not take place in his presence. He has even failed to identify the accused persons to be the perpetrator of the present offence.
5. PW3 Chander Prakash has deposed that he was a regular majdoor/labourer in DESU office in Gujranwala Town and his duty hours were from 4.00p.m. to 12.00 night. He has testified that at about 9.30a.m. The residents of State Bank Colony came to DESU office and started quarreling with DESU officieals and started pelting stones. The said witness has identified all the accused persons to be the person who participated in the commission of offence. However, in his cross examination he conceded that the accused persons were not known to him prior to the incident and he did not join any TIP proceedings during the investigation of this case. He also testified that police never recorded State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.5 his statement.
6. PW4 Sh. Hari Om has deposed that on 15.05.1992 he was posted as a telephone operator at DESU Office in Gujranwala Town. He has testified that 11.00p.m./12.00a.m. night the residents of Bank colony entered in to DESU office and started abusing the DESU officials and they broke the telephone and damaged the government property. He has also identified all the accused persons to be part of the aforesaid mob. During cross examination, the statement of the said witness given to the police under Section 161Cr.P.C. was confronted with him and the same was exhibited as Ex.DW4/A.
7. PW5 Kanhaiya Lal also deposed on the similar line as that of PW3 Chander Prakash and therefore, his testimony is not repeated herein for the sake of brevity and to avoid repetition.
8. PW6 ASI Randhir Singh is the IO of the case and he has deposed that he arrested the accused Kailash on 05.07.1992 and he has proved the personal search memo of the said accused as Ex.PW6/A. He has deposed that he had obtained sanction under Section 195Cr.P.C.
9. PW8 Sh. M.L. Wadhwa is the complainant of the present case and he has proved his complaint as Ex.PW2/A. He has deposed that he had made the present complaint regarding the attack of mob on DESU office on 15.05.1992. He has deposed that he came to know that in mob has attacked the complaint center and manhandled his staff on duty. He was also cross examined by Ld. APP for state as he failed to identify the accused persons to be culprit of the present State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.6 offence. In the said cross examination also he maintained that he did not see the accused persons amongst the mob. He has testified that the name of the accused persons was supplied to him by his staff on duty.
10. PW9, is Ishwar Prasad Yadav has deposed that on 15/16.05.1992 he was posted as Line Man at DESU office. He has deposed that residents of State Bank Colony came to their office and abused them. He has further testified that nothing happened in his presence and he had not received any injuries in the said incident. He has also failed to identify the accused persons. He was also cross examined by Ld. APP for State, but despite that nothing incriminating against the accused persons could be extracted from his testimony. Thereafter, PE was closed and the matter proceeded for the statement of the accused persons.
11. Thereafter, the statement of all the accused persons U/s.313/281 Cr. P. C were separately recorded, in which all the incriminating evidence were put to them for seeking their respective explanation. All the accused persons in their respective statement denied their presence at the spot of the occurrence. All the accused persons have taken the defence of alibi and to prove the same they chose to lead DE. Accordingly, the matter was listed for DE.
12. The accused persons examined 8 defence witnesses to rebut the allegations of the prosecution. Every accused has examined defence witnesses to prove their defence of alibi. The accused Bhushan has examined defence witnesses to establish that at the time of incident he was not present at the spot and had gone to the clinic of Dr. Sunil Jain at Ashok Vihar for the treatment of his State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.7 daughter, who was suffering from Pneumonia. Accused Kailash Chander has examined the relevant defence witnesses to show that on the day of incident he was at Dehradun as he was posted at the SBI, Dehradun Branch. Similarly, accused Kuldeep has also examined a defence witness to reflect that accused Kuldeep was with his neighbourer DW8, Sh. Shyam Bihari at the time of incident. Therefore, by producing the defence witnesses the main endeavour of the accused persons was to establish their defence of alibi. Thereafter, DE was closed and the matter was fixed for final arguments.
13. I have heard Ld. APP for the state and Ld. counsel for all the accused persons. I have also carefully perused the case file.
14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. The Ld. Counsel for the accused has argued that the prosecution has failed to prove the complaint U/s.195 Cr. P. C and therefore, the offence U/s.353/186 IPC has remained unestablished as the complaint U/s.195 Cr. P. C is indispensable for indicting the liability of the accused persons for the aforesaid offence. It is also put forward by the Ld. Counsel for the accused that the prosecution has failed to establish the identity of the accused persons to be the culprits of the present offence and he has also submitted that the accused State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.8 persons by leading their respective defence evidence have proved their defence of alibi and therefore, all the accused persons are entitled to be acquitted. On the other hand, Ld. APP for the state has argued that the prosecution has successfully proved the identity of the accused persons and thus, has proved its case beyond any reasonable doubt.
16. The prosecution has failed to place on record the duty roster/duty register to show that alleged eye witnesses i.e PW3 Sh. Chander Parkash, PW4 Sh. Hari Om, PW5, Sh. Kanhiya Lal and PW9 Sh. Jageshwar Yadav were on public/official duty at complaint office DESU at Gujjarawala Town on the alleged date of incident i.e 15/05/92. Moreover, no documentary evidence has been placed on record to show that the said witnesses were public servants. As per the prosecution, the accused persons had used criminal force against the aforesaid witnesses, being public servants. For indicting the liability of the accused persons for the offence U/s.186/353 IPC, the prosecution is required to establish that the accused persons deter/obstructed the public servant in discharge of his public function and for the said purpose used criminal force against them. Therefore, it is essential for the prosecution to establish that the aforesaid alleged eye witnesses were public servants. In absence of the aforesaid proof the basic and essential ingredient of the said section has remained unsatisfied. Further, the prosecution has failed to prove complaint U/s. 195 Cr. P. C, that was purported to be given by PW2 Sh. A. K. Gupta. None of the prosecution witnesses including PW2 Sh. A. K. Gupta has uttered even a State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.9 single word regarding the complaint U/s.195 Cr. P. C. Therefore, the said complaint has remained unsubstantiated. Absence of the established complaint U/s.195 Cr. P. C has weakened the prosecution version as the same is necessary for taking cognizance for the offence U/s.186 IPC.
Moreover, the prosecution has failed to place on record any photograph of the spot and has also failed to produce the alleged damaged Govt. property in the court to substantiate the allegations of the complainant that the alleged mob damaged the Govt. property. Therefore, the prosecution has miserably failed to corroborate the bare allegations of the complainant regarding causing of damage to the Govt./public property by the accused persons. Further, the prosecution has failed to advance any justifiable explanation for delay in lodging of the present complaint, that was lodged after passage of more than 24 hours of incident. Hence, the occurrence of very alleged incident has become doubtful and the same has proved fatal to the prosecution case.
17. If for the sake of arguments it is assumed that the alleged incident has been proved by the prosecution beyond any reasonable doubt then also the prosecution is required to establish the identity of the accused persons beyond any shadow of doubt. The present FIR was instituted on the basis of the complaint given by PW8 Sh. M. L. Wadhwa, in which he had named all the three accused persons to be the perpetrator of the present offence. However, in his testimony as PW8 he has failed to identify the accused persons to be the culprits of the present offence. On the contrary, he has stated that he was not present at State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.10 the spot of the incident and he had not seen the accused persons in the alleged mob that attacked the DESU office. He has also stated that he had derived the information regarding the names of the accused from the staff members on duty. Therefore, it is apparent that the said witness is not a direct eye witness to the said incident. Moreover, the said witness was even unable to identify the specific source of his derived information. His testimony is therefore, inadmissible as the same is merely an hearsay evidence being derived information from unidentified and undisclosed source. Besides that, in the said hearsay testimony also he has failed to attribute any incriminating role to the accused persons.
18. Moreover, the alleged eye witnesses in the present case are PW3 Sh. Chander Parkash, PW4 Hari Om, PW5 Kanhiya Lal and PW9 Sh. Jageshwar Prasad Yadav. PW9 Sh. Jageshwar Prasad Yadav has turned hostile and has testified that nothing happened in his presence and he also failed to identify the accused persons. He was crossexamined by the Ld. APP for the state but that was also of no use as nothing incriminating against the accused persons could be extracted from his testimony. PW3 Sh. Chander Parkash has identified the accused persons in the court. However, he has admitted that he did not know the accused persons prior to the incident and he had also admitted that he did not join any TIP proceedings during investigation in the present case. The said witness was examined after about 11 years of incident and since thereafter, he had seen the accused persons for the first time in the court. In his cross examination he had deposed that 20 to 30 persons were part of the mob that State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.11 attacked DESU office. However, he has failed to give any justifiable explanation/reason as to what was so specific about the accused persons that he could not forget them for almost 11 long years. It is an admitted case of the prosecution that the accused persons were not arrested at the spot on the date of incident and further, they were not even identified by any eye witness at the time of their arrest. Similarly, PW4 Hari Om and PW5 Kanhiya Lal have identified the accused persons in the court for the first time after a gap of nearly 11 years, though the accused persons were not known to them prior to the incident. Therefore, the testimony of the said alleged eye witness cannot form the basis for the conviction of the accused persons as it does not inspire sufficient confidence. I find support from the findings given by the Apex Court in Kanan and others v. State of Kerala, AIR 1979 Supreme Court 1127 : "Where a witness identifies an accused who is not knows to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I parade to test his powers of observations. The idea of holding T. I parade under section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T. I parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court".
Similarly, the Hon'ble Supreme Court in Dana Yadav & Ors v. State of Bihar, State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.12 AIR 2002, SC 3325 observed that : "In the present case, there is no evidence that accused was known to the two witnesses from before. The occurrence is said to have taken place on 25th April 1983 whereas the witness were examined alter two years. Thus, it would not be safe to place reliance on the identification of accused for the first time in court by these witnesses after an inordinate delay of more than two years from the date of incident, especially when the identification in court is not corroborated either by the previous identification parade or any other evidence. In the facts the accused cannot be convicted on basis of said evidence".
Therefore, in the light of the above discussion the prosecution has failed to establish the identity of either of the three accused persons to be part of the alleged mob that attacked the complaint office of DESU on 15/05/92. Moreover, the respective defence evidence led by the accused persons for proving their defence of alibi seems to be more credible and probable as compared to the story of the prosecution. The identity of the accused is of paramount importance in a criminal trial and once the same remains to be unestablished then the entire case of the prosecution is liable to crumble like pack of cards. The said fact has shaken the foundation on which the prosecution case was built. Therefore, the prosecution has failed to discharge the onus placed upon it by leading cogent, State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.13 convincing and conclusive incriminating evidence against the accused persons.
19. In view of the, above discussion all the accused persons namely Kuldeep, Bhushan and Kailash Chander are acquitted of the charges framed against them. They are directed to furnish personal bonds in the sum of Rs.10,000/ each with one surety each in like amount in accordance with section 437 A Cr. P. C. The same are furnished and they are accepted till 17/09/12.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN court today i.e. 16.03.12.
(DHEERAJ MOR) METROPOLITAN MAGISTRATE ROHINI COURTS: DELHI State Vs. Kuldeep etc., FIR No. 131/92, PS Model Town, U/s 149/353/186/34 IPC, Page No.14 FIR NO. 131/92 P.S. Model Town U/s. 149/353/186/34 IPC State Vs. Kuldeep & others 16/03/12.
Present: Ld. APP for the State.
All the accused persons on bail with counsel.
Final arguments heard. Case file perused.
Vide my separate judgment announced in the open court today, all the accused persons namely Kuldeep, Bhushan and Kailash Chander are acquitted of the charges framed against them. They are directed to furnish personal bonds in the sum of Rs. 10,000/ each with one surety each in like amount in accordance with section 437 A Cr. P. C. The same are furnished and they are accepted till 17/09/12.
File be consigned to record room after due compliance.
(Dheeraj Mor) MM/Rohini/Delhi 16.03.12.