Delhi District Court
State vs . Ct. Harjesh on 12 September, 2014
FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 IN THE COURT OF POORAN CHAND : CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.:322/08 PS: DBG Road U/s : 129 Representation of the People Act, 1951. State Vs. Ct. Harjesh Unique ID No.: 02401R0135132009 J U D G M E N T:
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(a) S.No. of the case : 27/3
(b) Name of complainant : HC Joginder Singh No. 152/C, Police Station DBG Road, New Delhi.
(c) Date of commission of offence : 26.11.2008
(d) Name of the accused : Ct. Harjesh
S/o Sh. Ram Swaroop
R/o H. No. D13, PCR Amba
Bagh, Sarai Rohilla, Delhi.
(e) Offence complained of : U/s 129 of Representation of the
People Act, 1951
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 12.09.2014
(h) Final Order : Acquitted
(i) Date of such order : 12.09.2014
BRIEF FACTS & REASONS FOR SUCH DECISION:
State V/s Ct. Harjesh (Acquitted) Page 1 of 13
FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014
1. In brief the case of the prosecution is that on 26.11.2008 at about 7.00 pm HC Joginder Singh alongwith Ct. Rohtash were on patrolling duty and when they were in front of Om Ji Om restaurant then they stopped accused Ct. Harjesh, who was driving the bike on which two persons were sitting and on inquiry, it was transpired that he was taken those persons to cast vote in favour of candidate of BSP. After sometime, Ct. Harjesh alongwith some other public persons was noticed near H. No. S1/20, Tibbiya College. The matter was reported to the SHO concerned and on the complaint of HC Joginder Singh present FIR was registered u/s 129 of Representation of People Act 1951 against the accused. Accused was arrested in this case and was released on bail as offence is bailable one. After completion of the investigation the chargesheet was fileld in the Court for judicial verdict.
2. Thereafter, cognizance of the offence u/s 129 of Representation of the People Act, 1951 was taken and the accused was summoned and compliance of section 207/208 Cr.P.C was made. After hearing arguments on charge vide order dated 13.09.2010, charge for offence U/s 129 R P Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to bring home the guilt of accused, prosecution examined as many as eleven witnesses, whereafter the PE in the matter was closed. Thereafter, statement of the accused U/s 313 Cr.P.C was recorded, wherein he denied the allegations levelled against him. However, he lead evidence in his State V/s Ct. Harjesh (Acquitted) Page 2 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 defense.
Evidence Held:
4. Total eleven witnesses were examined by the prosecution in support of its case. A brief scrutiny of the evidence recorded in the matter is as under.
5. PW1 Sh. Nathini Dass is the rickshaw puller. He did not support the story of the prosecution and turned hostile completely. Thereafter he was cross examined on behalf of the State at length.
6. PW2 Sh. Biju Mandal is also a rickshaw puller. He did not support the story of the prosecution and turned hostile completely. Thereafter he was cross examined on behalf of the State at length.
7. PW3 Sh. Mahender Kumar has deposed that on 02.03.2009 he was posted as Assistant Electoral Registration Officer (AERO) in AC23, Karol Bagh (SC). After going through the records, he found that Smt. Veena Singh was the contesting candidate of Bahujan Samaj Party of Legislative Assembly Election 2008 from AC23, Karol Bagh, Delhi. Election was conducted on 29.11.2008. His report in this regard is Ex. PW3/A.
8. PW4 HC Joginder Singh is the complainant who has deposed that on 26.11.2008 he alongwith Ct. Rohtash were on patrolling beat duty. At about 7.00 pm when they reached in front of Om Ji Om Restaurant on foot they saw State V/s Ct. Harjesh (Acquitted) Page 3 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 that Ct. Harjesh was on his motorcycle and he was accompanied with two persons on the said motorcycle. He and Ct. Rohtash stopped him and asked from him as to where he was taking the said two persons. Accused Ct. Harjesh told them that he was taking the said persons on the back side of the Police Station for meeting. Then he asked him that he is not on duty in beat No. 6 then how he is present there. He also asked from the persons who were sitting on the motorcycle of accused as to where they were going with Ct. Harjesh. The said persons told him that accused is taking them to the back side of the Police Station forcefully. The said persons were Nathani Dass and Biju Mandal. He tried to make the accused understand that he should leave the place and also asked the said public persons to go away from there. Thereafter, he alongwith Ct. Rohtash reached at the back side of Police Station i.e. near S1/20, Tibbia College, K. S. Associate, after about 15 minutes. When they were present there Ct. Harjesh came there alongwith 45 public persons. In the meantime, BSP candidate namely Ms. Bina Singh also came there and she alongwith the said 45 persons who had come there with Ct. Harjesh went up stairs where the S1/20, K.S. Associate was situated. As Ct. Harjesh had tried to misuse his police posting for the purpose of getting favour of voting for BSP candidate namely Ms. Bina Singh. He told this fact to SHO Police Station DBG Road. After 2025 minutes i.e. after completion of meeting all the said persons left the said office. SHO Police Station DBG Road came at the spot and he narrated the facts to him. SHO asked him to give the complaint in writing and took him to Police Station. In the Police Station, he wrote the complaint Ex. PW4/A and the present FIR was registered against the accused on State V/s Ct. Harjesh (Acquitted) Page 4 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 the endorsement of the SHO. SI Parkash Roy was handed over the investigation of this case. The site plan was prepared by the IO on his pointing out. IO recorded statement of public witnesses namely Nathani Dass and Biju Mandal as well as of Ct. Rohtash. He also recorded his supplementary statement.
9. PW5 Ct. Rohtash has deposed that on 26.11.2008 he alongwith HC Joginder were on patrolling beat duty. At about 7.00 P.M when they reached in front of Om Ji Om Restaurant on foot they saw that Ct. Harjesh was on his motorcycle and he was accompanied with two persons namely Nathani Dass and Biju Mandal on the said motorcycle. He and HC Joginder stopped him and asked from him as to where he was taking the said two persons. He replied that he was taking the said persons in a meeting behind the Police Station. When HC Joginder asked him that he is not on duty in Beat No. 6 then how he is present there. HC Joginder also asked from the persons who were sitting on the motorcycle of accused as to where they were going with Ct. Harjesh. The said persons told that accused is taking them to the back side of PS forcefully. HC Joginder tried to make the accused understand that he should leave the place as he was not on duty at beat no. 6 and also asked the said public persons to go away from there. Thereafter, he alongwith HC Joginder reached at the back side of Police Station i.e near K.S Associate i.e after about 15 minutes. When they were present there, Ct. Harjesh came there from the side of Tibbia College Flats alongwith 45 public persons. Who were not known to him, in the meantime, BSP candidate namely Ms. Bina Singh also came there from the opposite side and thereafter she alongwith the said 45 persons who had come there with Ct. Harjesh, went up stairs where the S1/20, K.S Associate was situated. HC Joginder told these facts to SHO Police Station DBG Road. After 2025 minutes State V/s Ct. Harjesh (Acquitted) Page 5 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 SHO Police Station DBG Road came at the spot and HC Joginder narrated the facts to him. SHO asked him to give the complaint in writing and took them to Police Station. In the Police Station HC Joginder made the complaint and the present FIR was registered against the accused. IO SI Parkash Roy recorded statement of public witnesses namely Nathani Dass and Biju Mandal after calling them at the Police Station. He also recorded his statement.
10. PW6 Retired SI Partap Singh has deposed that on 26.11.2008 at about 8.35 PM, Ct Rohtash produced one rukka sent by SHO Police Station DBG Road Inspector Sanjeev Kumar, on the basis of which he registered present case FIR and handed over copy of the same and original rukka to Ct. Rohtash for handing over the same to SI Parkash Roy for investigation. Copy of FIR is Ex.PW6/A. His endorsement on rukka is Ex.PW6/B. The computer system used for registration of FIR had remained under his control during the period he remained posted as Duty Officer on the said day. All the information in the system was fed under his supervision and the print out was also taken under his supervision during the said period. There was no break down in the system during the said period.
11. PW7 HC Sadanand has deposed that he brought the summoned record i.e original DD Register containing DD no. 19, 22 and 26 dated 26.11.2008 maintained at District Lines Centre Pahar Ganj, Delhi. Copies of the said DDs are on record. The said copies have been compared with the register brought by the witness and found correct. The DD no. 19, 22 and 26 are Ex. PW7/A to PW7/C respectively.
12. PW8 ASI Karan Pal Singh has deposed that on 26.11.2008 at about 7.25 P.M, State V/s Ct. Harjesh (Acquitted) Page 6 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 he checked the staff and found that Ct. Harjesh was absent from the Base. He reported his absence vide DD no. 22. DD no. 22 in the DD Register brought by him is in his handwriting. Copy of which is Ex. PW7/B. He informed the District Control Room regarding absence of Ct. Harjesh from the duty. Ct. Harjesh returned to the duty at 8.05 P.M vide DD no. 26. Copy of which is Ex PW7/C. The said DD in the DD Register is duly signed by Ct. Harjesh. The copy of said DD is Ex. PW7/C1. On 22.11.08 vide DD no. 19 at about 4.30 P.M Ct. Harjesh had reported to Line for duty in C2 Reserve from PS DBG Road and was directed to be reported to him. He had seen the copy of said DD in DD Register concerned which is Ex PW7/A. The said DD is also duly countersigned by Ct. Harjesh which is Ex PW7/A1.
13.PW9 SI Parkash Roy has deposed that on 26.11.2008 duty officer had registered the present FIR and the investigation of the case was marked to him. Ct. Rohtash came to him and gave copy of FIR with original rukka to him for investigation. He perused the contents of the FIR and sent Ct. Rohtash for the purpose of bringing the public witnesses namely Sh. Biju Mandal and Sh Nathani Dass mentioned in the FIR to Police Station. He made inquiry from Sh Biju Mandal and Sh. Nathani Dass when they came in the Police Station and recorded their statements U/s 161 Cr.PC. He thereafter, relieved the said public witnesses and made inquiry from Ct. Rohtash. He recorded his statement U/s 161 Cr.PC. Thereafter, he made inquiry from HC Joginder and took him to the spot. He prepared the site plan on pointing out of HC Joginder Ex PW9/A. As it was night time by that time no public person was found present at the said place. Thereafter, he recorded the supplementary statement of HC Joginder U/s 161 Cr.PC. Thereafter, he tried to contact accused Ct. Harjesh by State V/s Ct. Harjesh (Acquitted) Page 7 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 making telephone calls at his mobile number. However, he could not be contacted as his mobile was found switched off. He narrated the complete events to SHO. On 30.11.2008, he was transferred to Vigilance Department and handed over the further investigation to Inspector Rakesh Kumar.
14.PW10 HC Diwaker Prasad is the MHC(R) who has proved the DD No. 58B dated 26.11.2008 which is Ex. PW10/A. The duty roaster of Police Station Staff DBG Road Sub Division Pahar Ganj, Central District dated 26.11.2008 is Ex. PW10/B.
15.PW11 Inspector Rakesh Kumar is the IO who has deposed that on 09.12.2008 MHC(R) had given to him case file of the present case for further investigation. He accordingly perused the record. He recorded statement of ASI Karan Pal Singh and Sh. Mahender Kumar AERO u/s 161 Cr.PC. He obtained the reply of Sh. Mahender Singh on a letter addressed to the SDM Karol Bagh written by SHO Police Station DBG Road. He placed the said letter on record which is Ex. PW3/A. He also collected the Duty Roaster of Police Station Staff dated 26.11.2008 and placed the same on record which is Ex. PW10/B. He also took on record the relevant DDs pertaining to present case which are Ex. PW7/A to Ex. PW7/C and Ex. PW10/A. He had also interrogated the accused during the investigation conducted by him. As the investigation was concluded and the chargesheet was prepared and filed before the Court.
16.DW1 Ct. Harjesh has deposed that he brought the copies of two DDs entries and one duty roster which he had procured through RTI. The first DD entry is DD State V/s Ct. Harjesh (Acquitted) Page 8 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 no. 34A dated 23.09.2008 pertaining to Police Station DBG Road. In the said DD entry it is seen that on 23.09.2008 i.e. around 65 days before the date of incident, the then SHO had transferred him from beat no. 6, Police Station DBG Road, to Police Post Siddi Pura.
The second DD entry no. is 58B. The said DD entry shows that HC Joginder Singh no. 152/C, Ct. Rohtash no. 1289/C, were posted at Gangeshwar Dham, Anti Snatching picket from 6 p.m. to 9 p.m. The said DD entry also contains the signatures of both these police officials.
The third document pertains to Duty Roster of Police Station Staff of Police Station DBG Road of 26.11.2008 i.e. the date of incident. According to this duty roster, it is clearly shows that on the day of incident, HC Joginder Singh and Ct. Rohtash were posted at Gangeshwar Dham, Anti Snatching Picket duty from 6 p.m. to 9 p.m. All the three documents are marked as Mark A, B and C respectively.
17. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon :
18. I have heard arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and the documents placed on record by the prosecution in this case.
19. Ld. APP for the State has argued that in view of the testimonies of the prosecution witnesses, the prosecution has successfully proved the charge against the accused to the effect that he has influenced the voters to vote for a State V/s Ct. Harjesh (Acquitted) Page 9 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 candidate of a particular political party. Hence, it is argued that accused be convicted and sentenced as per law.
20.Per contra, it is argued on behalf of the accused that prosecution has miserably failed to prove guilt of the accused that he was persuading the voters to cast their vote to the candidate of a particular political party. It is also argued that PW1 Sh. Nathini Dass and PW2 Sh. Biju Mandal who were allegedly persuaded to cast their votes to a candidate of BSP party have completely turn hostile and did not support the prosecution version. It is also argued that accused has been falsely implicated in the present case at the instance of the SHO and is liable to acquitted.
BRIEF REASONS FOR MY DECISION
21.Accused was charged for the offence u/s 129 of Representation of People Act 1951 (hereinafter called Act) for persuading the PW1 and PW2 to cast their votes in favour of BSP candidate namely Ms. Bina Singh. In order to prove the guilt of the accused prosecution has to prove on record in terms of clause (ii) of Section 129 of the Act that accused has persuaded PW1 Sh. Nathini Dass and PW2 Sh. Biju Mandal to cast their votes in favour of BSP candidate Ms. Bina Singh. To prove the guilt of accused prosecution has examined as many as eleven witnesses. PW1 and PW2 have been examined as eye witnesses in support of the charge of prosecution to prove that they were persuaded by the accused to cast their votes in favour of a particular State V/s Ct. Harjesh (Acquitted) Page 10 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 candidate but from the perusal of the testimonies of both these witnesses it is clear that they did not support the case of the prosecution and turned hostile. Therefore the testimonies of these witnesses are of no use. The PW4 HC Joginder Singh has examined as complainant in this case who has supported the prosecution case by stating that at about 7.00 pm when he reached in front of Om Ji Om Restaurant he saw that Ct. Harjesh on his motorcycle and he was accompanied two persons on the said motorcycle. He was stopped and he was asked as to where he was taking the said two persons. Accused told him that he was taking the said two persons on the back side of the Police Station for meeting. When he was further asked that he is not on duty in beat No. 6 then how he is present there. He also inquired from the persons who were sitting on the motorcycle of accused as to where they were going with the accused. The said persons told that accused is taking them to the back side of the Police Station forcefully. The said persons were examined in this case as PW1 and PW2 as discussed above. Thereafter, complainant alongwith Ct. Rohtash and the accused reached back side of the Police Station i.e. near S1/20, Tibbia College, K S Associate, after about 15 minutes. When they were present Ct. Harjesh came there alongwith 45 public persons. In the meantime, BSP candidate namely Ms. Bina Singh also came there and she alongwith said 45 persons and the accused went upstairs in the premises at S1/20, K S Associate. Therefore this witness has further deposed that Ct. Harjesh tried to misuse the police posting for the purpose of getting favour of voting for BSP candidate namely Ms. Bina Singh. On his statement present State V/s Ct. Harjesh (Acquitted) Page 11 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 case was registered. In the cross examination of PW4 he has categorically admitted that other shops were also there near Om Ji Om Restaurant but no public person was asked to became the witness of the seen. Even he has not made any call at 100 number to his senior police officials regarding this incident.
22.In order to prove the charge, the one of the foremost ingredient required is that prosecution has to place on record the evidence whether PW1 and PW2 who were alleged to be persuaded to cast their votes in favour Ms. Bina Singh, the candidate of BSP party were voters in the particular ward. But no such evidence has come on record. Not only this in order to prove his innocence, accused has examined himself as DW1 in this case. I also perused the testimony of accused as DW1 where he has categorically stated that as per DD No. 34A dated 23.09.2008 pertaining to Police Station DBG Road, the SHO has transferred the accused from beat No. 6 to PP Siddipura. Moreover, as per record of duty Roaster, PW4 and PW5 were posted at Gangeshwar Dham, Anti Snatching Picket duty from 6.00 p to 9.00 pm. But prosecution has not proved as to how these PWs pasted on patrolling duty on the same time as incident is also of 7.00 pm. This contradiction create doubt regarding presence of PW4 and PW5 on the spot.
23.In the present case the eye witness have not supported the prosecution case as observed above. The prosecution has not proved the fact that PW1 and PW2 were the voters in the particular ward. Even no independent witness State V/s Ct. Harjesh (Acquitted) Page 12 of 13 FIR NO. 322/08: PS: DBG Road ; U/s 129 R P Act DOD: 12.09.2014 from the locality is examined by the prosecution to support its version.
24.In view of my above reasons, I am of the considered view that it is not safe to convict the accused for the offence u/s 129 of Representation of the People Act, 1950 only on the sole testimony of PW4 HC Joginder Singh who is a police official. Hence, benefit of doubt is given to the accused and accused namely Ct. Harjesh is acquitted for the charge.
25.Bail bonds of accused shall remain in operation for a further period of six months in terms of S.437A Cr.P.C. File be consigned to the Record Room after compliance of necessary formalities.
Announced in the open court (Pooran Chand)
on 12.09.2014 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Ct. Harjesh (Acquitted) Page 13 of 13