Delhi District Court
State vs . Mohd. Hasan on 2 February, 2023
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE-01, TIS
HAZARI COURT, CENTRAL : DELHI.
State Vs. Mohd. Hasan
FIR No.396/2022
PS: Paharganj
Registration No.15756/2022
JUDGMENT
(a) Sr. No. of the case 15756/2022
(b) Date of offences 26.08.2022
(c) Complainant HC Rajender Meel
(d) Accused Mohd. Hasan S/o Sh. Mohd.
Pachu, R/o H.No.220/241,
Bakkarwala, J. J. Colony,
Bakkarwala, Delhi.
(e) Offence Under Section u/s 4 of The
Delhi Prevention of Touting &
Malpractice Against Tourist
Act, 2010
(f) Plea of accused person Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 07.12.2022
(i) Date when judgment was02.02.2023
reserved
(j) Date of judgment 02.02.2023
1. Vide this judgment; I shall decide the final outcome in the FIR No. 396/2022, registered at Police Station: Paharganj, wherein alleging the commission of the offence punishable FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 1/10 ACMM-01(CENTRAL)02.02.2023 under section u/s 4 of The Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010 (shall be referred to as 'DPT & MAT Act' in short).
PROSECUTION CASE
2. The prosecution case, in brief, is that on 26.08.2022, at around 09.40 PM, at Munjia Chowk, Near New Delhi Railway Station, Delhi within the jurisdiction of PS Pahargnj, Delhi, accused Mohd Hasan was found touting tourists by offering hotel and food at cheap rates. Hence, the instant FIR was registered against accused.
3. Investigation was conducted. Upon completion of investigation, charge-sheet was filed in the Court on 07.12.2022, against accused for the alleged commission of the offence punishable under Section 4 of the Delhi Prevention of Touting & Malpractice Against Tourist Act, 2010. Four witnesses were cited to be examined to prove its case by the prosecution.
4. On 07.12.2022, cognizance of offence was taken and the accused person was summoned. Accused put in an appearance in the Court. Copy of charge-sheet was supplied to him.
NOTICE
5. On 28.01.2022, notice in terms of section 251 CrPC was served upon the accused for the alleged commission of the offence punishable under Section 4 of the Delhi Prevention FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 2/10 ACMM-01(CENTRAL)02.02.2023 of Touting & Malpractice Against Tourist Act, 2010, to which he pleaded not guilty and claimed trial. ADMISSION AND DENIAL STATEMENT OF THE ACCUSED IN TERMS OF PROVISION OF SECTION 294 CrPC
6. The accused person has admitted the genuiness of the instant FIR, endorsement on rukka and Certificate U/s 65B and Site Plan, marked as EX.A1, EX.A2 and EX.A3. Therefore, the name of DO/ASI Ramtirath, who was the duty officer and registered the instant FIR, was dropped from the list of witnesses.
WITNESSES EXAMINED BY THE PROSECUTION
7. HC Rajender was examined as PW1 and ASI Ranbir Singh was examined as PW2. Prosecution evidence was closed with even date.
STATEMENT OF THE ACCUSED PERSON
8. Statement of the accused person has been recorded in terms of provisions of section 313, Cr.P.C. He stated that he is innocent and falsely implicated in the present case. As stated by him, he is a rickshaw-puller and used to carry the tourists to their destination according to their instructions. He opted not to lead evidence.
FINAL ARGUMENTS
9. Final arguments have been heard. Records have been perused and considered.
FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 3/10ACMM-01(CENTRAL)02.02.2023
10.Ld APP for the State has argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State has also argued that the factum of the accused touting has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, Ld Counsel for accused has submitted that he is innocent and has been falsely implicated. The Ld Counsel has also submitted that the alleged incident took place on a public place but no public witness has been joined and the prosecution has failed to prove the case beyond reasonable doubt. With these submissions, ld counsel has prayed for acquittal of the accused.
PROSECUTION EVIDENCE
11.Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
12.As testified by PW1/HC Rajender, on 26.08.2022, he was posted as Head Constable at PS Paharganj. On that day, he along with Ct. Mukul was on patrolling duty at Munjia Chowk, Beat no.6, New Delhi Railway Station. During patrolling duty when they reached at Entry Gate, New Delhi Railway Station, at about 9:40 pm, they saw the accused inducing foreign and Indian tourists to provide FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 4/10 ACMM-01(CENTRAL)02.02.2023 hotels & food on cheap rate and due to this the tourists were getting annoyed by the act of the accused. He told the accused not to do so and asked the tourist to give the written complaint against the accused but they did not give any complaint against the accused and left the spot. Thereafter, He asked 4-5 public persons but none join the investigation and left the spot without giving their names and addresses. Due to paucity of time he could not serve notice to them. Thereafter, he prepared rukka, Ex.PW1/A, and got the instant FIR registered through Ct. Mukul. Thereafter, Ct. Mukul alongwith ASI Ranbir Singh came on the spot.
13. As further deposed by PW1 and as deposed by PW2/ ASI Ranbir Singh, copy of FIR and original rukka was handed over to PW2. Thereafter, PW2 prepared the site plan, Ex.PW1/B. PW2 interrogated the accused and served a Notice u/s 41A CrPC, Ex.PW2/A, and bound down him vide pabandinama, Ex.PW2/B. Upon completion of investigation, PW2 filed the charge sheet in the Court. EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE AND BRIEF REASON FOR THE DECISION
14.It is a settled proposition of criminal law that the prosecution is required to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence that in order to prove its case, the FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 5/10 ACMM-01(CENTRAL)02.02.2023 prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
15.It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
16.In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the fate of the present case.
17.The PW1 is the eye witness to the alleged incident as per the case of the prosecution. Whereas PW2/ASI Ranbir Singh carried out the investigation after the registration of the instant FIR and he had not seen the occurence of the alleged incident. Therefore, the testimony of PW1 is more relevant to decide the guilt or innocence of the accused.
18.The case of the prosecution is that the accused was touting the tourist. Thus, the victims of the crime were the tourists who were allegedly being touted by the accused. The victim was in better position to depose as to what had happened with her/him. Pertinently, neither any victim has been cited as a witness nor examined by the prosecution.
FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 6/10ACMM-01(CENTRAL)02.02.2023 Had any of the victims been examined the accused would have got the opportunity to cross examine the victim and truth could be elicited on record. The accused has been deprived of this opportunity. For not examining any victim, no plausible explanation has been offered by the prosecution which evokes a suspicion to the case of prosecution.
19.Further, evidently, neither any public witness has been cited in the list of witnesses or examined by the prosecution. The alleged incident of touting is stated to have taken place on a public place i.e Munija Chowk, Near New Delhi Railway Station, Delhi within the jurisdiction of Paharganj that too at around 09:40 PM, Delhi. It is not the case of the prosecution that no public person was available on the spot. In the absence of the examination of the victim, the testimony of the police witnesses needs corroboration from independent witnesses which is lacking in this case. The testimony of official witnesses does not find any corroboration from any independent source. In this regard it is apt to note various observations made by the Hon'ble Courts.
20.In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 7/10 ACMM-01(CENTRAL)02.02.2023 their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
21.In the case of Sadhu Singh Vs. State of Haryana 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
22.In the case of Chanan Singh Vs. State,1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
23.In the cases of Gurbel Singh Vs. State of Punjab, 1991 Crl.Rev. No.504 (P&H) and Dhanpat Vs. State of Punjab, 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
24.In the instant case, no reasonable explanation has been offered by the prosecution for not joining the public witnesses. Thus, in view of the observations made as aforementioned, the non-joining of public witness when even the victim has not been examined causes a dent to the prosecution case. The onus was on the prosecution to remove the shadow of doubt which it failed to do so.
FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 8/10ACMM-01(CENTRAL)02.02.2023
25.It is cardinal principle of law 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 case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
26.In view of the above examination of the evidence and material available on record, it is observed that the prosecution has failed to prove the guilt of the accused of which the accused faced the trial.
Therefore, accused, Mohd Hasan, is hereby acquitted of the offence punishable u/s 4 DPT & MAT Act of which he faced the trial.
FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 9/10ACMM-01(CENTRAL)02.02.2023
27.The bonds accepted in terms of provision of section 437 Cr.P.C shall remain in force for a period of six months.
Announced in the open Court today i.e. on 02.02.2023.
Digitally signed by RAJANIRAJANI RANGA Date: RANGA 2023.02.02 13:05:47 +0530 (Rajani Ranga) ACMM-1/Central: Delhi/02.02.2023 FIR No. 396/2022 State Vs. Mohd. Hasan Page No. 10/10 ACMM-01(CENTRAL)02.02.2023