Delhi District Court
State vs . Inglesh Kumar & Anr. on 10 September, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s. Inglesh Kumar & Anr.
FIR No. 23/08
PS: Ashok Vihar
JUDGMENT
A) Date of commission : 16/17-01-2008
of offence.
B) Name of the complainant : Sh. Arvind Kumar Gautam
S/o. Sh. Ram Ashray
C) Name of the accused : 1. Inglesh Kumar
S/o. Sh. Puran Masi
2. Surender Kumar
S/o. Sh. Nand Lal
D) Offence complained of : U/s. 295/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Acquitted
G) The date of such order : 10/09/2012
Date of Institution : 02/02/2008
Judgment reserved on : Not reserved.
Judgment announced on : 10/09/2012
State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 1/16
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief the case of the prosecution is that in the night of 16/17 January 2008 at around 03:00 am at Ambedkar Bhawan, CSA Colony, WPIA, Delhi within the jurisdiction of PS Ashok Vihar both the accused in furtherance of their common intention defaced, defiled and damaged the statue of Baba Saheb Bhim Rao Ambedkar and thereby insulted the class of society injuring their feeling and thereby committed an offence U/s 295/34 IPC.
2. After completion of investigation challan was filed by the police U/s 295/34 IPC of which cognizance was taken by this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 29/09/2008 charge was framed against both the accused for trial of offences U/s. 295/34 IPC by Ld. Predecessor of this court to which the accused persons pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
5. In order to prove their case the prosecution has examined 7 witnesses, testimonies of whom are discussed below:-
State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 2/16PW-1 Arvind Kumar deposed that on 16/01/08 the daughter of Mr. Nifikar expired and for her Tehrvin the Baba Saheb Ambedkar Bhawan was given. He deposed that Tehrvin was being going on and the accused persons were preparing food there. He deposed that after the function the members who gathered there left the Bhawan leaving the accused persons there. Further he deposed that on 17/01/08 in the morning Mr. Vindhyachal Rao who was Kosadhayask of Ambedkar Samaj Sudhar Samiti informed him that the statue of Dr. Bhimrao Ambedkar was defaced by garlanding with footwear and by sneering the mouth with vegetables/sabji. He shared this information with other members of society and made the call to PCR at 100. Police reached at the spot and took the photographs of the statue from different angles. He deposed that he was asked by the SHO about the involvement of the persons in commission of offence on which he asked that he entertained the suspicion against the accused person as only they were left in the Bhawan after the completion of ceremony. He deposed that he entertained the suspicion against the accused persons as earlier also when the function which was held on 26th January at Bhawan the accused persons throw Chappal/Footwear from their house which was situated near the Bhawan to create disturbance in carrying on the function. He narrated the incident to police who recorded his statement Ex.PW-1/A. He deposed that he also pointed the place of occurrence who prepared a site plan. He deposed that police took into the garland of footwear vide seizure memo Ex.PW-1/B. He also identify the case property as Ex.P-1.
This witness was cross examined on 02/06/10 by Sh. Satyendra Mishra Ld. Counsel for both the accused persons where he deposed that he is running a Grocery Shop at Chander Shekhar Azad Colony, Wazirpur, Delhi. He deposed that the statue of Dr. Ambedkar is inside the boundary wall and State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 3/16 height of the wall is about 9 feet and half portion covered by a roof. He further deposed that there is only one way to get inside boundary wall through the gate made of iron and the door usually locked and the keys of the said door remains with him. He deposed that he look after the whole premises under the control of Ambedkar Samaj Sudhar Samiti which is a registered organization but he do not remember its registration number. He deposed that he is not related with any political party. He further deposed that he know the accused persons since last 20 years as they reside in his neighborhood. He deposed that perhaps this land belongs to DDA. He further deposed that they encroached the land which belongs to DDA. He deposed that they have no written permission or authority to look after or to have access for the organization at that land/Ambedkar Park. He deposed that this occupation of the land is illegal. He further deposed that there had no tussle between him and accused persons on 26/01. he deposed that when the accused persons thrown the chappal/footwear from their house, he had made not complaint to police authorities or did not make any call at 100 number. He deposed that the incident which occurred was happened four years back. He went to the Ambedkar Bhawan at around 7:00pm on the day of Tehrvin. He deposed that the accused persons were preparing food there and he saw them at the Ambedkar Bhawan. He deposed that Nifiqi told him before the gathering of the people of the locality that the accused persons were remaining inside the Ambedkar Bhawan at the completion of the Tehrvin. Further he deposed that he did not see the accused persons smearing the vegetables on the face of the statue of Dr. Ambedkar and garlanding with footwear.
PW-2 Vindhayachal Rao deposed that on 17/01/08 in the morning at about 7:00am he started to go to park for morning walk and on the way and he State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 4/16 saw that some one had defaced the statue to Dr. Bhimrao Ambedkar by garlanding with footwear, by sneering the mouth with vegetables/sabji and removing the spectacles. He told this fact to Arvind Kr Gautam who was present of Ambedkar Samaj Sudhar Samiti. He deposed that someone made the call to PCR at 100, police reached at the Ambedkar Bhawan where the photographs of the statue was conducted from different angles. He deposed that police seized the garland of footwear vide memo Ex.PW-1/B. He deposed that on 16/01/08 the Tehrvin of the daughter of Mr. Nifikar was celebrated at Ambedkar Bhawan. He did not expressed any suspicion against anybody. He identify the garland of footwear as Ex.P-1. He further deposed that on 16/01/08 the accused persons were preparing food in the ceremony and only they were left there after the completion of function.
He was cross examined by Ld. APP after seeking permission from the court as he resiled from his previous statement. In cross examination of Ld. APP he denied the suggestion that he expressed his suspicion against the accused persons to police.
In cross examination by Ld. Defence Counsel he deposed that he did not raise suspicion on any person when he was inquired by the police. He deposed that he did not see any person while putting the foot wear garland on the statue or putting vegetable on its mouth.
This witness was re examined by Ld. APP wherein he deposed that he did not raise any suspicion over accused persons while inquiring by the police.
PW-3 Shyam Lal deposed that probably the incident took place on 16-17/01/08, on that day Nifikar organized some program on the death of his niece in Ambedkar Bhawan situated at Wazirpur. People also took in the said State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 5/16 Ambedkar Bhawan. He deposed that in the morning he was informed by Vindhyachal that there was garland of foot wear in the neck of Baba Saheb Ambedkar and put vegetables on his mouth on hearing this he visited Ambedkar Bhawan and found that version of Vindhyachal was correct. Further he deposed that he do not know who had put the aforesaid garland on the statue and put vegetables on the mouth of statue. He deposed that he know both the accused persons Surender and Akhilesh as they reside in his neighborhood. He deposed that police did not recorded his statement.
This witness was being cross examined by the Ld. APP for state wherein he denied the suggestion that he made statement to the police voluntarily. He deposed that police did not make any inquiry. He denied the suggestion that in the night of 16-17/01/08 he got up at around 3am and when he came near the Ambedkar Bhawan he saw that both the accused persons along with one other person were present near the statue of Baba Saheb. He further denied the suggestion that he saw that accused Surender Kr was snearing the mouth of statue with vegetables and other accused was putting the garland of foot wear on the neck of statue and also removed spectacles from the statue. He denied having made any statement to the police. He denied the suggestion that when he objected the accused persons on their aforesaid conduct they threatened to kill him.
This witness was also cross examined by Sh. Satyender Mishra Ld. Counsel for both the accused persons where he deposed that he know Arvind Kumar Gautam, who is present of Ambedkar Samaj Sudhar Samiti and he is also campaign secretary of the said samiti.
PW-4 Nifikar Ram deposed that on 13/01/08 his niece expired, so on State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 6/16 16/01/08 he organized Tehrvi of his niece after three days of her death in the park of Baba Saheb Ambedkar which is surrounded by boundary wall. He called his neighborer including both accused persons to cook food in the said program. He deposed that two vegetables of Potato and Petha were cooked, the people took food in the programme. He deposed that the programme was over by 10pm and the remaining unconsumed food was taken by him to his house. He deposed that both the accused persons were also left the place at around 10:30pm after consuming the food. He locked the gate of the Ambedkar Bhawan and handed over the keys to Arvind Kumar Gautam at 11:00pm. He deposed that on the next morning after receiving information from local people he went to the Ambedkar Bhawan and found that there was garland of foot wear on the statue and his mouth was sneered with vegetable. He further deposed that he do not know who has committed the aforesaid act.
This witness was cross examined by Sh. Sateyender Mishra Ld. Counsel for both the accused persons wherein he deposed that he knows Arvind Kumar Gautam as he is the President of Ambedkar Saheb Sudhar Samiti and is also associated with Bahujan Samaj Party. He deposed that on some occasions he accompanied Arvind Kumar in some function, meetings and rallies of Bahujan Samaj Party. He deposed that both accused persons cooking food in the programme organised by him. He further deposed that after the programme he left the place after locking the gate of Bhawan and by that time there was no garland of foot wear on the statue of Baba Saheb and his mouth was also not sneared with vegetables.
PW-5 HC Jagdish deposed that on 17/01/08 he was posted at PS Ashok Vihar. He deposed that on that day on receipt of DD No.9A he along with SI Amar Singh reached at the spot i.e. Ambedkar Bhawan, CSA Colony, State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 7/16 WPIA, Delhi where they saw that there was a garland of shoes and slippers on the statue of Dr. Bhimrao Ambedkar and vegetables was sneered on the face of statue of Dr. B.R. Ambedkar and there were number of person were gathered. He deposed that IO SI Amar Singh removed the garland of shoes and slippers from the statue of Dr. B.R. Ambedkar and kept the same in a polythene bag and sealed with the seal of AS. He deposed that IO recorded the statement of complainant Arvind Kr Gautam and prepared Tehrir and sent him along with the same to PS for registration of the case. After getting the case registered he came back to spot and handed over the same to IO. He deposed that sealed polythene bag containing garland of slippers and shoes were taken into possession vide seizure memo Ex.PW-1/B. He deposed that he along with IO and complainant Arvind Kr and with one Shyam Lal tried to search the accused persons and they found the accused Inglesh and Surender, at T-Point Ashok Vihar, Delhi at the instance of complainant. He deposed that IO arrested both the accused persons vide arrest memo Ex.PW-5/A and Ex.PW-5/B and took their personal search vide memo Ex.PW-5/C and Ex.PW-5/D. He deposed that initially when they reached at the spot they also observed that the spectacles on the face of Statue of Dr. B.R. Ambedkar was not there. He deposed that after the arrest of both the accused persons, on interrogation both the accused made disclosure statement Ex.PW-5/E and Ex.PW-5/F that they had thrown the spectacles in the canal. He deposed that they tried to search the spectacles but could not found. He also identified the case property as Ex.P-1.
This witness was cross examined by Sh. Satyendra Mishra Ld. Counsel for both the accused persons where he deposed that the DD No.9A was received at about 8:30am and they reached at the spot at about 8:45am. He deposed that there was total 5 footwear (slippers and shoes) in the said State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 8/16 garland. He deposed that due to sneering of the vegetables the face of the statue of the Dr. B.R. Ambedkar was became yellowish. He deposed that on the same day at about 2:45/3:00pm they along with the accused persons tried to search the spectacles of statue. He deposed that they went on foot from the spot to the canal in the search of spectacles. They along with accused persons reached at PS at about 4:00-4:15pm. Further he deposed that they went to the PS after the completion of investigation. He deposed that their departure entry would be made by the duty officer. He denied the suggestion that the accused persons have not made any disclosure statement or that he is deposing falsely. Further he denied the suggestion that he has not joined the investigation of the present case. He further denied the suggestion that both the accused persons have been falsely implicated at the instance of complainant Arvind Kumar.
PW-6 HC Asha Sharma proved the copy of FIR as Ex.PW-6/A and endorsement on rukka as Ex.PW-6/B. PW-7 SI Amar Singh deposed that on 17.01.2008 he was posted at PS Ashok Vihar. He deposed that on that day at about 08:30 am on receipt of DD No. 9 A he along with Ct. Jagdeesh reached at the spot i.e. Ambedkar Bhawan, CSA Colony, WPIA, Delhi where they saw that there was a garland of shoes and slippers on the statue of Dr. Bhimrao Ambedkar and vegetables was sneered on the face of statue of Dr. B.R. Ambedkar and spectacles on the statue of Dr. B.R. Ambedkar was found missing and there were number of person were gathered. He deposed that public persons gathered there were annoyed due to defacing of the statue of Dr. B.R. Ambedkar. He removed the State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 9/16 garland of shoes and slippers from the statue of Dr. B.R. Ambedkar and kept the same in a polythene bag and sealed with the seal of ASG and the same was taken in possession vide seizure memo Ex. PW-1/B. He deposed that he recorded the statement of complainant Arvind Kr Gautam and prepared Tehrir Ex. PW-7/A and sent Ct. Jagdeesh along with the same to PS for registration of the case. He deposed that after getting the case registered he came back to spot and handed over the copy of FIR and original tehrir to him. He prepared site plan Ex. PW-7/B at the instance of complainant Arvind Kumar Gautam. He recorded the statement of witnesses namely Vindhya Chand, Shyam Lal, etc. He deposed that he along with Ct. Jagdeesh and with secret informer tried to search the accused persons and they found the accused Inglesh and Surender, at T-Point Ashok Vihar, Delhi at the instance of secret informer. He arrested both the accused persons vide arrest memo Ex.PW-5/A and Ex.PW-5/B and took their personal search vide memo Ex.PW-5/C and Ex.PW-5/D. He deposed that after the arrest of both the accused persons, on interrogation both the accused made disclosure statement Ex.PW-5/E and Ex.PW-5/F that they had thrown the spectacles in the canal. They tried to search the spectacles but could not found. He recorded statement of Ct. Jagdeesh. He deposed that thereafter they came back to PS. He deposed that both the accused persons after medical examination were lodged in lock up and case property was deposited in malkhana. He correctly identified the case property i.e. garland of footwear as Ex.P-1.
This witness was cross examined by Sh. Satyendra Mishra Ld. Counsel for both the accused persons where he deposed that the DD No.9A was received at about 8:30 am and they reached at the spot at about 8:45am. He deposed that there was total 5 footwear (slippers and shoes) in the said garland. He deposed that the vegetables which were sneered on the statue State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 10/16 was Potato. There were around 150-200 public persons on the spot. He recorded the statement of Officer bearers who were the eye witness to the incident and they were present there. He inquired from number of public persons who were present there. He denied the suggestion that no public persons were present there and that is why he had not joined any of the public person in the investigation. He deposed that he along with Ct. Jagdeesh and with accused persons finally reached PS at about 08:30 pm after completing investigation on that day. He deposed that after getting the case registered Ct. Jagdeesh came back to spot at about 11:00 am. He deposed that Site plan was not prepared by scaling. He deposed that after arresting accused persons they went to canal near metro station Keshav Puram in search of spectacles at about 06:00 pm. They went there on foot. They left for PS from the canal at about 07:30 pm. He deposed that there were no witness from the public along with them when they went to canal in search of spectacles. Further he denied the suggestion that the accused persons have not made any disclosure statement or that he is deposing falsely. He further denied the suggestion that he have not joined the investigation of the present case. He denied the suggestion that bothy the acused persons have been falsely implicated at the instance of complainant Arvind Kumar.
6. P.E. was closed vide order dated 03.01.2012 and statement of both the accused U/s. 281/313 Cr.P.C was recorded to which the accused persons denied all the allegations leveled against them but preferred not to lead D.E. Thereafter the matter was fixed for final arguments.
State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 11/167. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
8. It is submitted by Ld. Defence Counsel that the accused persons have been falsely implicated by the complainant. He further submits that in the instant case the prosecution was bound to prove the essential ingredients of the offence under Section 295 I.P.C., which, according to him, have not been proved. Further that the identity of the accused has not been established by the prosecution. The Ld. Defence Counsel has submitted that the identity of the accused persons has not been established by the prosecution and strenuously contended that the accused persons are entitled to acquittal on this basis alone.
9. Per contra Ld. APP has submitted that the ingredients of the offences under Sections 295 have been established. It is further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
10. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 12/16 that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shifts onto the accused.
11. After going through the material on record, including the testimonies of the witnesses examined by the prosecution as well as the documents relied upon I am of the opinion that the prosecution has failed to prove its case.
Section 295 IPC provides:
"Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
In order to prove the culpability of the accused u/s 295 IPC, the prosecution is required to prove the following ingredients:-
(i) Destruction, damage or defilement of
(a) any place of worship, or
(b) any object held sacred by a class of persons;
(ii) Such destruction, etc., must have been done
(i) with the intention of insulting the religion of a class of persons, or State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 13/16
(ii) with the knowledge that a class of persons is likely to consider such destruction, etc., as an insult to their religion.
12. During the testimonies of the prosecution witnesses examined so far nothing concrete could be elucidated from any of the witnesses which could point out that the accused persons destroyed, damaged or defiled the statue of Baba Saheb Ambedkar. The witnesses examined by the prosecution have admitted that none of them have seen the accused persons damaging the statue. PW-1/complainant has categorically stated that on the basis of suspicion he stated to the police that the accused persons have committed the offence. PW-2 has also deposed that he did not see any person putting footwear garland on the stature or putting vegetable in its mouth. He has also deposed that the boundary wall in the park is approximately 5 to 6 feet high and one can enter the park through a gate which is locked and that the keys remains in the custody of PW-1 Arvind Kumar Gautam. No where it has been deposed by any of the witnesses as to how the accused persons gained entry into the premises despite the same being locked. Whether the lock had been broken open or the entry was secured by any other means remains unanswered. PW-1/complainant has not deposed as to whether he had given the keys of the park to someone else or not. Neither of the witnesses have seen the incident by themselves and their evidence can only be treated as hear say evidence which in itself is not sufficient to nail the accused persons for the offence alleged against them. The prosecution has not been able to establish the identity of the accused persons, nor has been able to connect accused persons with the offence in question. The ingredients as mentioned in section 295 IPC has not been satisfied.
State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 14/1613. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H) (DB) ,1997(1) R.C.R.(Criminal) 662).
14. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 15/16 doubt must go to the accused.
15. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has miserably failed to discharge its onus. The evidence available on record is not sufficient to substantiate the guilt of the accused persons. Accordingly the accused persons deserve acquittal.
16. It is ordered accordingly.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on September 10th, 2012.
It is certified that this judgment contains 16 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 10/09/2012 State V/s Inglesh Kumar & Anr. FIR No. 23/08 PS: Ashok Vihar Page No. 16/16