Delhi District Court
Criminal Case/164/1999 on 22 March, 2007
(P/1)
IN THE COURT OF SH RAJESH KUMAR GOEL
METROPOLITAN MAGISTRATE :ROHINI:DELHI
FIR NO: 164/99
U/S 435/427/34 IPC
P.S Shalimar Bagh
JUDGMENT
A SL NO. OF THE CASE : 1370/02
B: DATE OF OFFENCE : 7.3.1999
C: NAME OF THE : Sh Hari Om
COMPLAIANT s/o Uday Singh
D: NAME OF THE : 1. Ashok Kumar s/o
ACCUSED Rameshwar
r/o H.No BW 23 C
Shalimar Bagh
2. Ram Mohan Rai
s/o Sh J.N Sharma
r/o BW 96-C
Shalimar bagh ,Delhi
.
3. Jagdish Chander
Bhalla ( expired)
4. Jasvir Singh Sidhu
( expired)
E: OFFENCE : U/S 435/427/34 IPC
COMPLAINED OFF IPC
F: PLEA OF ACCUSED : PLEADED
NOT GUILTY
G: FINAL ORDER : Acquitted.
H: DATE OF SUCH : 22.3.2007.
ORDER
BRIEF REASONS FOR DECISION:
(P/2)
1. Both the accused person are facing trial on the allegations of the prosecution that on 07.3.1999, at about 7:00 am at Ram Bagh adjacent to Shalimar Bagh at Jindal Charitable Society within the jurisdiction of P.S. Shalimar Bagh they both in furtherance of their common intention with co- accused Jasbir Singh and Jagdish Chander Bhalla ( since expired) intentionally caused mischief to the temporary jhuggies and they all also committed mischief by breaking the electricity meter and board etc. .
2. After investigation the challan was filed. Prima facie case U/s 435/427/34 A IPC made out against the accused. After compliance of section 207 Cr.P.C. charged framed accordingly by the Ld. Predecessor of this Court to which both the accused pleaded not guilty and claimed to be tried.
3. In support of its case , the prosecution examined as many as six witnesses in order to prove its case.
4. PW1 Ct Rajender Kumar deposed that (P/3) on 07.3.1999 he alongwith S.I Umesh Malik went to Ram Bagh where complainant Hari Om met them. IO recorded the statement of Hari Om and prepared rukka. He got the FIR registered . IO made enquiry about the accused person but did not got any clue. PW1 was cross examined by the defence counsel. During his cross examination he admitted that incident might have occurred prior of call that's 7:00 am.
5. PW2 Sh Hari Om is the complainant in the present case who stated that he was chowkidar in Jindal Charitable Society at Shalimar Bagh. ON 7.3.1999 at about 7:00 am he was going for taking tea , he heard that some persons were talking that " Aaj is Balli aur chadar ko ukhar Dete hai aut gira dete hain ". after some time those persons gathered and removed out the Balli and tin shades and put fire on the jhuggi's . PW2 further deposed that those persons were addressing each other as Bhalla Saheb , Sindhu Saheb , Khandelwal Saheb and Sharmaji . Police came at the spot and recorded his statement ExPW2/A. Site plan ExPW2/B was prepared. Photographs ExPW2/C and PW2/ N were taken . PW2 while replying to a leading question put by LD APP stated that he do not (P/4) remember whether the police had arrested accused person on his instance as the case is very old. PW2 was not cross examined by the defence counsel.
6. PW3 Dr. Subhash Jindal public witness gave up the case of the prosecution. He was cross examined by the ld APP. During his cross examination by Ld APP he replied that Chowkidar Hariom told him that person who were present at the spot were Ashok Kumar Khandelwal, Ram Mohan Rai Sharma, Jagdish Chand Bhalla and Jasvir Singh Sidhu. He admitted that he had told the police that aforesaid accused person alognwith other persons were opposing /obstructing in construction of school, as per he had heard from the surroundings. PW3 was also not cross examined by the accused.
7. PW4 HC Ashif Suleman was the duty officer on 07.3.1999 and has accordingly proved the registration of FIR vide ExPW4/A. PW4 was not cross examined by the accused. PW5 ASI Ranbir Singh was DD writer and had made entry in daily diary . He proved the DD no. 7A ExPW5/A . PW5 was cross examined by the defence counsel. During his cross (P/5) examination he admitted that in the DD entry ExPW5/A nothing is narrated regarding burning of anything uprooting of ballis etc. He further admitted that the information was not regarding any disturbance in the plot alloted to Jindal Charitable Society plot at Rambagh Shalimar Bagh , Delhi .
8. PW6 6 S.I Umesh Malik deposed that on 7.3.1999 on receipt of DD no. 7 A regarding a dispute near Ram Bagh Jindal Society , he alongwith ct. Rajender went to the spot where chowkidar of the said society met them. When he reached at the spot he saw that electric metre was uninstalled condition and door of jhuggi of said chowkidar was in burn condition. He recorded statement of chowkidar Hari om vide exPW2/A. Rukka ExPw4/B was prepared and FIR was got registered. Complainant had already taken the photographs ExPW2/C to PW2/N. Later on three persons were arrested by him on identification of complainant Hari Om on 15.6.2000 vide ExPW5/A to PW5/G . personal search of the accused was conducted vide ExPW5/D , PW5/F and PW7/A. PW 6 was cross examined by the accused. During his cross examination he admitted that the statement of the (P/6) complainant ExPW2/A does not mention about the opposing of allotment plot to Kindal Charitable Society. He denied the suggestion that he is desposing falsely.
9. Thereafter PE was closed . After the prosecution evidence , statement of both the accused u/s 281 CrPC was recorded in which the defence of the accused person were of denial simplicitor . However, they did not opt to lead any evidence in their defence.
10. Ld counsel for the accused person submitted that alleged incident is of 07.3.1999 but the accused person have been arrested after 1 and a half year. He has taken me to the testimony of prosecution witnesses and submitted that PW5 ASI Ranbir Singh has deposed that he received information on wire less about the breaking the walls . He further submitted that complainant PW2 Hari Om has not supported the case of prosecution. LD counsel for the accused persons vehemently argued that there is material contradiction between the testimonies of prosecution witnesses.
(P/7)
11. On the contrary LD APP submitted that accused persons have been arrested on the identification of PW2 and PW2 have fully supported the case of the prosecution. He further submitted that all the memo's stands proved and the prosecution has proved its case against the accused beyond reasonable doubt.
12. I have heard Ld.APP for State and the ld counsel for the accused at length. I have also carefully perused the entire judicial record.
13. The accused person have been charged for an offence u/s 435/427/34 IPC . Section 435 IPC provides punishment for mischief by fire or explosive substance with intent to cause damage to amount of 100/- or ( in case of agriculture produced ) 10/- Rs. Section 427 IPC provides punishment for mischief causing damage to the amount of 50/- or upwards. In order to prove the said charges the prosecution has examined six witnesses. A bare perusal of the testimonies of prosecution witnesses shows that there is a material contradiction therein (P/8) which definitely given benefit of doubt to the accused person.
14. PW1 Ct. Rajender Kumar deposed that on 07.3.1999 , he alongwith S.I Umesh Malik (PW 6) went to the RAm Bagh Shalimar Bagh where the complainant Hari Om (PW2) Met them. IO recorded the statement of the complainant Hari Om PW2 and FIR got registered. PW1 further deposed that IO made the enquiry from the gardener regarding the accused person but no clue was find. During his cross examination PW1 replied that PW2 Hari Om has not narrated the name of any such person to the IO. PW6 S.I Umesh Malik deposed that he collected the information regarding the person whose names were mentioned in the complaint and later on they were arrested by him. If the PW2 Hari Om has not narrated the name of suspects then, it is not clear as to on what basis the information was collected about the accused persons.
15. PW2 Hari Om deposed that on 07.3.1999, he was going for taking tea . HE heard that some person were talking that " Aaj is Balli aur chadar (P/9) ko ukhar Dete hai aut gira dete hain ". He further deposed that he heard them talking and they have used surnames as Bhalla Sahab and Sindhu Sahab and two other person were referred as Sharma ji and Khandelwal Sahab. He never stated that the accused person were present there , he had seen them and they were the real culprit. Merely on the basis of suspicion , the accused person cannot be convicted for the present offence. During his cross examination PW2 replied that he does not remember whether the police had arrested the accused person at his instance or not . Not only that , PW2 Hari Om failed to identify the accused person even before the court also.
16. PW3 Dr. Subhash Jindal deposed that his Chowkidar Hari OM PW2 informed him that some persons had destructed the Jhuggi and barricades . It means PW2 Hari Om never informed about the identity of the accused person to the PW3 Dr. Subhash Jindal. PW3 deposed that he does not know the accused persons present in the court. During his cross examination by the state , PW3 Dr. Subhash Jindal deposed that PW2 Hari Om had told him about the (P/10) accused person but nothing has been said by the other prosecution witnesses and it creates doubt on the story of the prosecution.
17. As per the story of the prosecution the alleged incident is of 07.3.1999 at about 7:00 am . PW1 Ct. Rajinder during his cross examination replied that it may be possible that incident may have taken place prior to 7:00 am. PW5 ASI Ranbir Singh deposed that he received information at about 7:35 am on wireless that some persons are breaking the wall in BW block. At that time, there was no information about the alleged mischief by fire etc,. If the incident had taken place at on or before 7:00 am then, there was no occasion for breaking the wall at 7:35 am .
18. PW6 S.I Umesh Malik during his cross examination replied that resident of BW were opposing the allotment of the plot in question to the Jindal Charitable society. But he admitted that complainant PW2 Hari Om has stated that only the morning walkers were opposing the said allotment. Even the photographs in question in no way prove the guilt of the accused person beyond shadow of doubt.
(P/11) Further, in the present case, it is an admitted fact that accused person were arrested after one and a half year of the date of the alleged offence. The prosecution has failed to clarify as to why such long time was taken in arresting the accused person which again creates doubt on the story of the prosecution.
19. In my opinion to convict the present accused person for the offence charged there should have been definite evidence that on 07.3.1999 , at about 7:00 am both the accused person were present on the spot and they caused mischief to the temporary jhuggi or they committed mischief by breaking the electricity meter or board etc. The same is failing in the present case.
20. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt but in the present case , I find that the prosecution has failed to achieve this standard . In the present case , the prosecution has miserably failed to prove the contents of the charge as framed against the accused.
(P/12)
21. The testimonies of the prosecution witnesses leads to embiguties and doubts . The nature and degree of the evidence which is on the record is not sufficient to convict the person u/s 435/427/34 IPC. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt but in the present case , I find that the prosecution has failed to achieve this standard .
22. Keeping in view the above observation , facts and circumstances of the case , I hold that prosecution has failed miserably to prove its case beyond shadow of doubt against the accused person . Benefit of doubt is given to the accused Ram Mohan Rai and Ashok Kumar . Thus, I am left with no option but to acquit the accused person. Accused Ram Mohan Rai and Ashok Kumar ,therefore stands acquitted from the charge u/s 435/427/34 IPC . Their bail bond cancelled and surety stands discharged.
(RAJESH KUMAR GOEL) MM/DELHI ANNOUNCED IN the OPEN COURT TODAY I.E 22.3.2007.
(P/13) (P/14)