Delhi District Court
In A Case Law Reported As Anoop Joshi vs State, 1992 (2) on 12 July, 2011
State V. Dalip Etc.
IN THE COURT OF SH. MANISH KHURANA MM/OUTER/ROHINI/DELHI
JUDGEMENT
a) The FIR of the case : 346/99 b) The date of commission of offence : 29.09.99 c) The name of the complainant : HC Patram
d) The name, parentage, address of : 1. Natho, w/o. Shankar, r/o. B accused. Blcok, Jhuggi, Shabad Dairy,
2. Sunil, s/o. Sh. Partap, r/o.
361, Shabad Dairy, Delhi
3. Satto, w/o. Sh.Banwari Lal, r/o. A 648, Shabad Dairy
4. Dalip, s/o. Hari Ram, r/o.
C 5/42, shabad Dairy, Delhi
5. Sunita, w/o. Shashi, r/o. G 4, Sultanpuri Delhi
6. Santosh, w/o.Hai Ram r/o.G4/230, Sultan Puri Delhi
7. Vishal Kumar, s/o. Sh.
Randav Prasad, r/o. A
49/50, Shabad Dairy, Delhi
f) The offence complained of : 147/149/353/186 IPC
g) The plea of the accused : Not guilty
h) Date of Institution : 09.09.2000
i) The date on which the judgement was : 12.07.11 reserved Page 1 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc.
j) The final order : Acquitted
k) The date of such order : 12.07.11 Brief statement of the reasons for the decision:
1. The case of the prosecution is that on 29.09.99 at about 02.05 p.m. Near police chowki, Shabad Dairy, Delhi, all the accused formed an unlawful assembly and used force or violence against HC Pat Ram and Ct. Kuldeep who were on public duty at that time and all the accused in prosecution of their common object obstructed the aforesaid public servants and assaulted the aforesaid public servants and restrained them from doing their duties as a public servant and thereby committed an offence punishable u/s. 147/149/353/186 IPC.
2. The matter was investigated by the police and a charge sheet U/s 147/149/353/186 IPC was filed against the accused persons.
3. From the material on record a charge u/s. 147/149/353/186 IPC was framed against the accused persons by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial.
4. To support its case the prosecution has examined 8 witnesses.
5. PW1 HC Patram, PCR NW Zone deposed that on 29.09.99 while he was posted at PP Shabad Dairy and on receipt of DD no. 9 he reached Shabad Village and he came back at police post after Page 2 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. apprehending one Sita and one Manoj u/s. 107/151 DP Act. Thereafter all the accused persons alongwith other persons came to the PP and started pelting stones on the police post, due to which some window panes got broken and thus more police force was called upon. He further stated that accused persons also manhandled him while he was trying to control them. He however stated that except one Dalip he could not remember the name of other co accused due to lapse of time. He then identified all the accused persons who were present in the court during his evidence and identified them to be the accused persons who were arrested on the spot. He also stated that other people of the mob had, however, escaped. His statement was recorded vide Ex. PW 1/A bearing his signatures at point A. Stones were also seized by the IO and were turned into a pullanda sealed with the seal of BS and were seized vide memo Ex. PW 1/B bearing his signatures at point A. the personal search of the accused Dalip, Sunil, Vishal were conducted vide Ex. PW 1/C, D and E respectively bearing his signatures at point A. All the accused persons were arrested vide arrest memos Ex. PW 1/F1 to F8 bearing his signatures at point A.
6. Thereafter, one plastic bag in unsealed condition was produced before the court by MHC(M) and same was opened and was found containing stones and bricks, which were shown to the witness, who Page 3 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. identified the same having been seized from the spot. The said case property was then exhibited as Ex. P1.
7. During his cross examination on behalf of all the accused, he deposed that he received DD no. 9 at 12 noon and the same was given to him by Munshi. He however could not tell if at that time, Chwoki Incharge was present in the PP or not. He also could not tell as to how many other officials were present in the PP at the time of receipt of DD. He further stated that he had gone to C block on the call of a quarrel. He further stated that he went to the spot on foot and was in uniform. He further stated that the police call was made due to some dispute involving the wife of Dalip, i.e. Sita and Manoj. He further stated that he remained there for half an hour. He could not recollect as to how many persons had collected at the police post. He also stated that he had given a message for calling a lady constable at the spot. However despite waiting for about 15 minutes, no lady Constable reached the spot. He then left and till that time no lady Constable had reached at the spot. He further stated that he did not record the statement when he had gone on another call. He also denied having been obstructed and manhandled by any person while he was attending the call at Shabad Dairy Colony. He also stated that the distance between the Shabad Dairy colony and C Block where he had Page 4 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. gone to attend the call was about half kilometers. He also denied having been followed by the accused persons from C Block and he stated that the accused persons came later on. He came to PP at about 02.30 p.m. He denied having made any arrival entry after attending the call. He also could not tell the number of police officials present at the spot at the time of the incident. He also stated that he and Ct. Kuldeep were in proper uniform at the time of the incident. He however admitted that he did not sustain any injury in the incident. He then voluntarily stated that accused persons had pelted stones on the chowki. He however admitted that no police official sustained any injury in this incident. He then stated that he made arrival entry in the police station but he could not recollect of the DD entry. He also admitted that he had not given the DD to the IO. On his instructions Lady Sita had reached the police post. He further stated that some public persons also sustained minor injuries in the said incident. He also could not remember if the IO had recorded the statement of any of them. He also stated that IO might have taken them for their medical examination to the hospital. He admitted that the bus stand was very near to the police post, but he could not tell if any bus was standing at the bus stand or not. He also stated that building and the window panes of the police post had got damaged and also some Page 5 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. pieces of broken glass were seized by the IO. He also could not remember if any vehicle was parked outside the police post had also got damaged. He though deposed that the Chowki Incharge came at the police post after about 20 minutes of the incident but did not know as to by which conveyance did he reach there and he stated that by then pelting of stones had stopped. He also could not tell the exact number of police official present at the police post at the time of the incident. He also denied the use of tear gas in the incident by the police. He however stated that the duty officer might had called extra force and same reached within 45 minutes. He further deposed that the accused persons were arrested in his presence and he admittedly stated that the time of the arrest of the accused persons were not mentioned in their arrest memos. He further admitted that Ex. PW 1/F1 i.e. the arrest memo bore thumb impression but did not bear the name of the accused. He also admitted that rukka and other documents bore his signatures while some of the memos bore his initials. He further deposed that he put his full signatures on some papers while mere initials on others. He denied to recollect if something was printed on the plastic katta which was used for collecting stones. He also denied to remember the exact number of stones collected by the IO at the spot. He also could not recollect as to Page 6 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. from where the said katta was procured by the IO. He also could not recollect if the IO had recorded his supplementary statement. He further deposed that the said katta was sealed with the seal of BS in his presence, but could not tell as to whom the said seal was handed over after use. He also deposed that IO affixed one seal impression on the said katta, but could not tell the name of other police official who had signed the seizure memos. He also could not recollect the time of depositing the case property in the Malkhana by the IO. He also could not tell the name of the police official who had taken the case property to the police station. He also could not tell the mark on the stones.
8. MHC(M) then produced the case property which was shown to this witness by the Defence Counsel and he replied to his question while admitting that the brick bore white paint on one side while yellow on the other.
9. He further denied having deposed falsely being a police official or that no such incident took place.
10. PW2 ASI Devender Kumar deposed that on 29.09.99 he was posted at PP Shabad Dairy, PS Bawana as Head Constable. On that day he was present at the PP when at about 02.05 p.m. HC Patram and Ct. Kuldeep had come to the PP with one lady and one male person Page 7 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. who were arrested by them. Suddenly 4050 persons including ladies and gents attacked the PP and started pelting stones. This information was immediately transmitted to the police control room and SHO PS Bawana. After about half an hour PCR Van and SHO alongwith police staff reached the PP. On seeing the police force the accused persons started fleeing from there but some accused persons namely Sunita, Satoo, Meena, Santosh, Dilip, Vishal, Nathoo and Sunil were apprehended by the police. All the accused persons except accused Santosh were correctly identified by this witness. He then deposed that a case was registered against the accused persons and stones were collected and were put in a green plastic katta and plastic katta was sealed with the seal of BS and the same was seized and the accused persons were arrested and his statement was recorded by the IO.
11. Thereafter MHC(M) produced a white plastic kata which was opened and was found containing a green plastic katta in unsealed condition. The said green katta was found containing some pieces of bricks and stones, which the witness correctly identified and the same were collectively exhibited as Ex. P1.
12. During his cross examination he stated that he was posted at PP Shabad Dairy since August 1997. He further stated that on the day of the incident his duty hours were from 08.00 a.m. to 08.00 p.m. and at Page 8 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. the time of the incident Lady Ct. Geeta and one or two other Constables were present at the police post. He again said that one of those constables was Ct. Vinod. Generally police staff at PP consisted of one sub inspector who used to be the Incharge, three head constables and 1012 Constables. He further deposed that at the time of the incident Incharge was not present at the spot. When HC Patram reached at the spot he was sitting in the Baraamada. He could not tell the name of the accused persons who were brought to the PP by HC Pat Ram. He further deposed that no lady Ct. was accompanied with HC Pat Ram when he reached at the spot. He did not know whether any arrival entry was made by HC Pat Ram or not. He however admitted that there was a bus terminal near PP and number of buses come and stop there and passengers alight and board the buses from there. HC Patram and Ct. Kuldeep were in police uniform when they came at the PP. He further admitted that no police official at the PP sustained any injuries. He did not know if any vehicle was parked outside the PP or inside the PP. He also could know not say if any vehicle was damaged due to the pelting of stones. He further admitted that no report regarding damage of any vehicle parked at the bus stand due to the said pelting of the stones. He further admitted that no tear gas or firing or lathi charge was used by the police force. He further Page 9 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. admitted that any person from the mob also did not receive any injury. He further stated that no damage to the building of the post was caused. He also could not tell as to from where the said green plastic katta was recovered. He also could not tell as to whom the said seal was handed over by the IO. He further stated that there were arms and ammunition at the PP but same was not used by them. He also stated that he was not having any arm with him. He could not say if any police person was armed or not. He further stated that tear gas bullets were not available at the PP at the time of the incident. He also denied that the accused persons were picked up from their houses or accused were falsely implicated in this case. He further denied that he was deposing falsely.
13. PW3 Ct. Gajender deposed that on 29.09.99, he was posted at PS Bawana, PP Shabad Dairy, as Constable. On that day he was working as DD writer from 08.00 a.m,. to 08.00 p.m. at about 12 noon, a call regarding quarrel was received and same was registered as DD no. 9 and same was handed over to HC Patram who had gone to the spot with Ct Kuldeep and at about 02.05 p.m. HC Patram returned to the police post after having arrested Manoj and Sita. Suddenly a crowd gathered at the PP and started pelting stones. SI Bhagwan Singh instructed him to report this matter to control room and the Page 10 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. matter was reported to control room via wireless. Thereafter his statement was recorded by the IO.
14. Opportunity to cross examine this witness was given to the accused but to no avail.
15. PW4 Wct. Geeta deposed that on 29.09.09 she was posted at PS Bawana as Constable. On that day she accompanied SHO, PS Bawana alongwith police force to PP Shabad dairy where some persons were pelting stones at the PP. On reaching there some persons ran away from there and some persons were apprehended by the police out of whom some were ladies and some were gents. She further stated that SI Bhagwan Singh recorded the statement of HC Patram and got the case registered through Ct. Vinod. IO SI Bhagwan Singh also prepared site plan and pieces of stones and bricks were collected and were put in a green plastic katta. The said katta was then sealed with the seal of BS and was seized by the IO. Accused Maina, Natho, Sunil, Satool, Sunita, Dilip, Santosh and Vishal Kumar were arrested. She further stated that she conducted the personal search of accused Maina, Sunita, Natho, Satoto and Santosh vide memos Ex. PW 4/A to PW4/E bearing her signatures at points A. Further she correctly identified all the accused except Maina, Sunita and Satoo who were then present in the court.
Page 11 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc.
16. Opportunity to cross examine this witness was given to the accused but to no avail.
17. PW5 ASI Jai Singh deposed that on 29.09.99, he was posted at PS Bawana as Duty Officer from 09.00 a.m. to 05.00 p.m. on that day at about 03.40 p.m. he received rukka from Ct. Vinod Kumar sent by SI Bhagwan Singh for registration of the case and on the basis of the same he registered the FIR no. 346/99 u/s. 147/148/149/353/186 IPC in his handwriting which he has exhibited as Ex. PW 5/A bearing his signatures at point A(OSR). He also made endorsement on the rukka at point A to A1.
18. Opportunity to cross examine this witness was given to the accused but to no avail
19. PW6 SI Bhagwan Singh deposed that on 29.09.09 he was posted at PP Shabad Dairy, PS Bawana as Incharge Police Post. On that day he was present at the police post alongwith other police staff when at about 02.00 p.m. a mob gathered outside the police post and started pelting stones on the police post and police staff. He immediately informed the police control room and SHO PS Bawana. Thereafter within ten minutes additional police force alongwith SHO PS Bawana reached the police post and on seeing the additional police force the members of unlawful assembly started running from Page 12 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. there. However, eight persons from the said unlawful assembly were apprehended by the police force. He recorded the statement of HC Patram already exhibited as Ex. PW 1/A and prepared a tehrir, which he exhibited as Ex. PW 6/A. Tehrir was handed over to Ct. Vinod Kumar, who went to the police station got the case registered. Thereafter they returned to the police post and handed over copy of the FIR and original tehrir to him. One private photographer Harish Chander was called at the police post who took photographs from different angles as per his directions. He then prepared site plan which he has exhibited as Ex. Pw 6/B bearing his signatures at point A. Stones and pieces of bricks thrown at the police post and police staff by the members of unlawful assembly were collected and were kept in plastic katta and plastic katta was sealed with the seal of BS and was seized vide memo already exhibited as Ex. PW 1/B. All the accused persons who were apprehended by the police staff from the spot were interrogated and after interrogation they disclosed their names as Suita, Satto, Meena, Santosh, Natho, Sunil, Vishal and Dilip. All the eight accused persons were then present in the court and were correctly identified by this witness. He further stated that all the accused persons were arrested and arrest memo in this regard were already exhibited as Ex. PW 1/F1 to PW 1/F8 respectively. Personal Page 13 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. search of the accused persons were conducted while the personal search of the female accused persons was conducted by Lady Ct. Gita. He has exhibited the personal search memo as already exhibited Ex. PW 1/C, PW 1/D, PW 1/E ,PW 4/A, PW 4/B , PW 4/C, PW 4/D and PW 4/E of all the accused and all the accused were released on bail. Bail bonds and personal bonds in this regard have been exhibited as Ex. PW 6/C to PW 6/K. He then recorded the statement of witnesses. On 08.05.00 he obtained the permission u/s. 190 Cr. P.C. from ACP Narela which he has exhibited as mark X. He completed investigation, prepared the chargesheet and filed the same in the court through SHO.
20. Thereafter, MHC(M) produced a white plastic katta which was found to be containing a badly damaged green plastic katta bearing FIR no. of the case but was in unsealed condition. This witness correctly identified the case property and the same is exhibited as Ex. P1.
21. During his cross examination this witness stated that he was present in the police post since night. He cold not tell his arrival entry into the police post. He admitted that he did not file the DD number of his DD entry with the challan. He stated that beside him HC Pat Ram, Ct. Gajender, Ct. Vinod Kumar, Ct. Kuldeep and HC Devender Page 14 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. with Lady Ct. Geeta were present at the police post. The pelting of stones occurred at 02.00 p.m. but he admitted that none received any injury. He also stated that all the police official were in proper uniform. He also stated that there is a bus terminal near police post and number of buses come and go for their respective places and passengers were coming and going at that time. He further deposed that no complaint was received regarding damage of any vehicle and injury on public persons. He further deposed that no vehicles of police official was parked outside the police post. He also stated that no photograph was taken. He further deposed that the green katta was taken from the Mess of the police post which was functional at the time of the incident. He further stated that at that time he was not having any Govt. Arms and ammunition. The SHO reached the spot at about 02.30 p.m. at that time there was no pelting of stones on the chowki. He further admitted that the he had mentioned the exact number of half bricks. He also admitted that the seizure memo did not contain the description about the half bricks having white wash in yellow colour. He also admitted that the printed material on the green Bag. i.e. Lakshmi Cement in Hindi and other material in red colour was also not mentioned by him. He also admitted that the details like police station, section and other details of the case are not Page 15 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. mentioned on the case property. He however stated that date of seizure of the case property was mentioned in the other part of the katta which was not produced at that time in the court. The seal after use was handed over to the Ct. kaptan.
22. He also deposed that no police official sustain any injury nor any uniform was got damaged in this incident. The glass of the windows of the police post were also not broken but there were some spots on them. No damage was caused to the doors of the police post. There was no plaster on the walls of the police post. He also deposed that no vehicle was got damaged nor any bus standing at the bus terminal near the police post was got damaged. He further stated that accused Santosh got injury on her teeth due to pelting of stones but no medical aid was provided to the accused as she voluntarily refused to receive the medical aid. Accused refused to get her medical examination conducted, so the medical examination was not conducted and her refusal was reduced to writing. He also deposed that the clothes of accused Santosh were also not taken into possession by him. He also admitted having not affixed any duty sip with the challan. He also deposed that no police official was having any arms. He also refused the use of tear gas or bullets at the time of the incident. He further deposed that the case property was deposited Page 16 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. through Ct. Vinod Kumar at PS Bawana which he took in a gypsy of the SHO, the katta was sealed with the seal of BS and the same was handed over to HC Pat Ram. The seal was returned after 5/6 dates. No handing over memo was prepared in this regard. He also could not recollect as how many seal impression were put by him on the plastic katta. He also denied that no stone pelting was committed by the accused persons or that they have been implicated falsely.
23. PW7 Ct. Vinod Kumar deposed that on 29.09.99 he was posted at PP Shabad Dairy, Ps Baana. On that day, he was present at the police post with one lady and one male person who were arrested by them. Suddenly 5060 persons including ladies and gents attacked the police post and started pelting stones. This information was immediately transmitted to police control room and SHO, PS Bawana. Alognwith police staff reached at the police post. On seeing the police force accused persons started fleeing from there. But some accused persons namely Sunita, Satto, Meena, Santosh, Dalip, Vishal, Natho and Sunil were apprehended by the police. All the accused persons are present in the court. IO recorded the statement of HC Patram and prepared rukka and handed over the same was handed over to him. He got the present FIR registered and handed over the copy of the FIR and original rukka to the IO. IO collected the stones from the Page 17 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. spot and were put in a plastic katta and were sealed with the seal of BS and the same were taken into police possession vide seizure memo already exhibited as Ex. PW 1/B. All the accused persons were arrested and his statement was recorded by the IO.
24. Thereafter, the case property was produced in a badly damaged green katta bearing the FIR no. of the case and in unsealed condition and the witness identified the case property correctly and exhibited the same as Ex. P1.
25. During his cross examination he deposed that he signed on 45 documents after going through them. He further stated that he made the departure and arrival entry but did not remember the DD no. for the same. He further deposed that Ct. Gajender, Hc Patram, Ct. Kuldeep etc. were present at the police post at the time of the incident. He could not remember as to whether Chowki Incharge was present there. He however admitted that usually official go to the spot from the police post itself and arms and ammunition are also available for the official. He then stated that SI Bhagwan Singh was the Chowki Incharge at that time. He could not recollect if any lady Constable was present at the post at the relevant time. He also could not tell if HC Patram had lodged his arrival entry or not. He also admitted that some vehicles were parked outside the police post. He also deposed Page 18 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. that nobody received any injury. He also could not remember if any damage was caused to those vehicles parked outside the premises of the post. He also admitted that buses used to ply at a distance of 200 yards from the post but could not remember if any vehicle was damaged or any public person got any injury. He also admitted that no tear gas was used and no lathi charge was ordered. Even no firing/bullet in the air was fired. He also stated that he could not recollect of any damage caused to the building of the police post. Seal after use was deposited in the police post. He also accepted that PW 1/C did not contain name of the accused on the thumb impression. Personal search memo of all the accused persons were prepared. He also denied that no such incident took place as narrated at the relevant time. He also denied that accused were falsely implicated or that he was deposing falsely.
26. PW8 Rupender Kumar DCP Traffic Southern Range deposed that in the year 2000 he as posted as ACP in the Sub Division Narela. He further deposed that IO SI Bhagwan Singh had put file of the present case before him and he had gone through the same and he had filed an application/provision u/s. 195 Cr.P.C. which he has proved as Ex. PW 8/A. Page 19 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc.
27. During his cross examination, he deposed that he could not remember the number of pages which he had checked before he prepared his request u/s. 195 Cr.,P.C. He further deposed that IO had put the case file of the case through proper channel. He also stated that he himself had verified all the facts from the IO. He further deposed that it was the matter of record that the said fact had been mentioned in the report or not. He denied having made request u/s. 195 Cr. P.C. vaguely and without applying his mind.
28. Thereafter, PE was closed and Statements of all the accused were recorded vide which accused persons claimed to be innocent and denied the allegations of the prosecution against them. However, accused persons did not opt to lead evidence in defence.
29. The case of the prosecution is that all the accused persons formed an unlawful assembly and used force or violence against HC Pat ram and Ct. Kuldeep who were on public duty at that time and obstructed them in discharge of their duties as public servant. In the support of its case the prosecution has examined as many as 8 witnesses.
30. I have heard Ld. APP for the State and Ld. Counsel for the accused and have also perused the evidence on record. Perusal of the record reveals that the aggrieved person are the police official and all Page 20 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. the witnesses are also police official and no other public witness to the incident has been examined.
31. As per the deposition of PWs no account of any request to the public persons to join the investigation appears to have been made. It seems that no attempt has been made by the police to join independent public persons in the proceedings despite availability of such witnesses. After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with notice in writing to join the police proceedings inasmuch as at that point of time accused already stood apprehended and there was no possibility of accused escaping his arrest or crime going undetected. At least in the facts and circumstances of the case in my opinion IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them u/s 187 IPC. Facts and circumstance of the case suggest that no sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance is being placed on the following judgments: In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
Page 21 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. "It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
32. Further in case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: '' 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''.
33. Further, there are clear contradictions in the testimony of PWs as PW1 HC Patram who is also the complainant has not deposed in his testimony that he alongwith Ct. Kuldeep was manhandled by the accused persons. However, it is the case of the prosecution that HC Patram and Ct Kuldeep were manhandled by the accused persons. In his cross examination he could not tell as to how many police official were present in the police post. As per his testimony he received DD Page 22 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. no. 9 and he apprehended Sita and Manoj u/s. 107/151 Cr. P.C. and came back at the police post at 12.30 p.m. The distance of the spot of the apprehension of Sita and Manoj was half kilometers away from the police post and during his cross examination, he told his time of return to the police post between 02.0002.30 p.m. further the said DD no. 9 and Kalandara u/s. 107/151 Cr.P.c. was also not filed on record. As per the prosecution case, HC Patram was manhandled on 02.05 p.m.. during his testimony PW Patram has failed to explain as to how he was manhandled in the police post at about 02.00 p.m. when he came back at the police post at 02.0002.30 p.m. Further the said DD no.9 and Kalandara u.s. 107/151 Cr.P.C. was also not filed on record.
34. PW HC Patram has deposed that accused persons manhandled him while they were pelting stones and when he was trying to control them, however, during his cross examination he admitted that he was sitting in the room of Munshi when stone pelting started. Further as per the prosecution case, about 4050 persons attacked police post but all the PWs have admitted during their deposition that none of the police official sustain any kind of injury. Further as per the prosecution story, the stones and bricks were thrown and the glasses of windows of police post were broken, but no seizure memo of the broken glasses were prepared nor any photograph of the building of Page 23 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. the police post which was allegedly attacked has been proved on record. It casts substantial doubt upon the case of the prosecution as the prosecution has failed to prove that the building, property or windows of the police post were damaged. Further none of the police official present in the police post sustain any kind of injury despite a massive attack on the police post by a mob. I fail to understand when a mob of 4050 people attacked the police post, neither the building of the police post sustain any damage nor any police official was injured and admittedly no fire arms, lathi charge or tear gas was used by the police.
35. Further PW HC Patram has deposed in his examination in chief that he apprehended lady Sita from the spot vide kalandara u/s. 107/151 PD Act and brought her to the police post. However, during his cross examination, he stated that Sita reached the police post on his instructions. Further, in his cross examination PW Patram has stated that some public persons also sustained injuries, but some of them might have been medically examined. The prosecution has failed to give any explanation as to why those public persons who allegedly sustained injuries during the incident were not made witness to the present case.
36. PW2 ASI Devinder Kumar has deposed in his examination in Page 24 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. chief that 4050 persons attacked the police post and started pelting stones. However, only 8 of them were apprehended and the present case was registered. However, no police remand of the accused persons was taken and no efforts were made by the IO to search or apprehend the remaining persons who allegedly attacked the police post. Further, in his cross examination PW2 admitted that at the time of incident Lady Ct. Geeta and one or two Constables were present at the police post and there is no mention of name of HC Patram and Ct. Kuldeep who were allegedly manhandled by the accused persons.
37. Further, PW2 admitted that police post was near the bus terminus, but he also admitted in cross examination that no report was received at the police post that any vehicle or bus got damaged due to stone pelting during such massive attack on the police post. Further, as per the deposition of PW2 no firing, lathi charge or tear gas was used by the police during the incident which also cast as substantial doubt upon the story of the prosecution. Further, he has categorically admitted that building of the police post did not sustain any kind of damage due to stone or bricks pelting by the mob.
38. It is highly improbable that police post when attacked by the mob of 4050 persons and stone and bricks were allegedly thrown on the police post and no damage was caused to the doors, windows or Page 25 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. building of the police post and also none of the police official sustained any injury.
39. PW6 SI Bhagwan Singh in his cross examination has admitted that photographs of the police post were not taken. The prosecution has failed to prove on record that any damage was caused to the building of the police post by the alleged attack on the police post and the prosecution has tried to prove its case by producing some stones in one katta which when produced in the court, were also found in unsealed condition and even the case details were not mentioned thereon as admitted by PW6 in his cross examination.
40. PW6 in his cross examination stated that no vehicle was parked in parking of the police post at the time of the alleged attack but PW7 Ct Vinod Kumar, stated in his cross examination that some vehicles were parked in the parking, but none of them receive any damage.
41. PW6 IO SI Bhagwan Singh admitted in his cross examination that the seal of the case property i.e. bag containing stones/bricks was handed over to HC Patram but HC Patram who deposed as PW1 has categorically deposed that he did not remember as to whom the aforesaid seal was given. This also cast substantial doubt upon the alleged case property as when the same was produced for the first time in the court it was in unsealed condition.
Page 26 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc.
42. It would be relevant to mention the judgement titled as "Alarakha K Mansuri V. State of Gujarat, 2002 (I) CRPC 748 (C), it was held that the golden thread which runs through the web of Administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other pointing to innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court, should be to avoid miscarriage of justice.
43. Further no DD entry of arrival or departure of any of the police official has been produced on record to prove their presence in the police post at the time of alleged incident. Also in this case no efforts were made to hand over the seal after use to independent public persons and in such cases in view of SAIFULLA VS STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 4097 (DELHI) benefit of doubt is to be given to the accused. Further in the case in hand, the case property was produced in the court in an unsealed condition, which also cast a substantial doubt upon the case of the prosecution. In this case no public person has been made a witness to the incident, despite admission made by the complainant PW HC Pat Ram that some public persons sustained injuries and were medically examined. But prosecution has failed to Page 27 of pages 28 FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..) State V. Dalip Etc. give any explanation as to why those persons have not been made the witness to the incident. Therefore the testimony of prosecution witnesses examined before the court do not inspire confidence of the court and I am of the considered opinion that prosecution has miserably failed to prove its case against all the abovesaid accused persons.
44. Accordingly all accused i.e Natho, Sunil, Satoo, Dalip, Sunita, Santosh and Vishal Kumar stand acquitted of the offence u/s. 147/149/353/186 IPC.
Announced in the open court (Manish Khurana )
on 12th July 2011 MM/Rohini/Delhi
12.07.11
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FIR NO. 346/99, PS BAWANA, U/S. 147/149/353/186 IPC(Contd/-..)