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Delhi District Court

State vs . Ravinder @ Babloo on 21 December, 2011

      In the Court of Sh. Sunil Kumar, MM, Rohini District Courts, Delhi

                                                     State Vs. Ravinder @ Babloo
                                                                     DD No. 62­B
                                                                53/116 of D.P. Act.
                                                                  PS Jahangir Puri

                                        The date of institution of case: 11.12.2004
                                       The date of reserving the order: 21.12.2011
                             The date on which Judgment pronounced: 21.12.2011

JUDGMENT

Unique Identification No.         :      02404R5980912004
Date of commission of offence     :      10.12.2004
Name of the complainant           :      HC Rajvir Singh
Name & address of accused         :      Ravinder @ Babloo S/o Sh. Rajender.
                                         R/o H1/308, Jahangir Puri, Delhi. 

Offence complained of             :      53/116 of D.P.Act.
Final order                       :      Acquitted
Date of order                     :      21.12.2011

Brief Reasons for Decision:

1. Briefly stated, the prosecution case is that on 10.12.2004, at about 4.10 pm, the accused was found within Delhi whereas the externment order has been passed against him vide order no. 5761­41 Ext. Additional DCP NW, dated 23.09.2004 and he had violated the said order. On the basis of said allegations, the present case was registered against the accused and the accused has been charged with the offences U/s 53/116 of D.P. Act.

DD No. 62­B Page No. 1/8

2. After investigation, kalandara was filed against the accused. Copies were supplied to accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr. PC) and notice U/s 251 Cr.PC was given to him to which he plead not guilty and claimed trial.

3. In support of the version, the prosecution has examined two prosecution witnesses and two court witnesses. It is pertinent to mention here that during the trial, the accused was declared proclaimed offender vide order dated 03.11.2010.

4. The accused was examined U/S 313 Cr.PC and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police. However, he did not opt for leading evidence in her defence.

5. I have heard Ld. Counsel for the accused, Ld. APP for the State and perused the material on record carefully.

6. Ld. Counsel for the accused has submitted that the accused has been falsely implicated in this case by the police officials. It is further argued that the notice of externment was never served upon the accused and he was not in knowledge of the said externment order initiated against him. Even otherwise, the Prosecution could not establish case against accused for the alleged offence beyond shadow of doubt, it is, therefore, prayed that the accused may be acquitted of alleged offence.

DD No. 62­B Page No. 2/8

7. On the contrary, Ld. APP for the State has submitted that the accused was having due knowledge about the externment order against him. He had entered in the territory of NCT of Delhi deliberately and violated the said order. The prosecution has successfully established its case against the accused for the alleged offences. Hence, it is, prayed that the accused may be convicted accordingly.

8. On the careful scrutiny of the testimony of the witnesses reveals that PW1­HC Rajbir Singh during his examination in chief deposed that on 10.12.2004 on receipt of DD No. 15, he along with Ct. Satish reached at opposite Kushal Cinema where the accused was found quarreling with some other person, and on seeing them he tried to escape from there. He further deposed that he apprehended him and on interrogation his name was revealed as Ravinder @ Bablu @ pathan and it also came in their knowledge that externment proceedings had been initiated against him and he had violated the order. He further deposed that the accused was arrested vide memo Ex. PW1/A and personal search memo Ex. PW1/B, he also collected the order of externment mark A. During his cross examination on behalf of the accused, he deposed that when they reached at Kushal Cinema ta bout 3.30 pm, the accused was standing alone there. He further deposed that there were no shops and residence at the spot from where the accused was arrested, however public persons were present there. He further deposed that IO had asked the public persons to join the investigation but none agreed to the same and no one disclosed their names and addresses.

DD No. 62­B Page No. 3/8

PW3­HC Satish Kumar (should be PW­2) also deposed on the same lines as deposed by PW1­HC Rajbir Singh and hence his testimony is not being discussed for the sake of brevity.

9. I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully. The allegations against the accused are that he was found violating the externment order passed by Deputy Commissioner of police against him.

In order to analyze the veracity of the allegations, the testimonies of the witnesses and the material on record are required to be scrutinize carefully.

It has been argued on behalf of the accused that the accused had never been served the copy of externment order by the concerned office or that he was not having the knowledge of any such order passed against him. The said submission of the accused is found to be worthy as there is nothing on the record to suggest that whether the copy of the alleged externment order was served upon the accused or not. In this regard reliance can be taken on the following case law where Hon'ble Supreme Court in AIR 2005 Saupreme Court 2080 in case entitled State of NCT of Delhi and Another Vs. Sanjeev @ Bittoo has categorically ruled that " the Commissioner of Police may by order or in writing duly served on such person, or by beat of drum or otherwise as he thinks fit, direct such person to so conduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself DD No. 62­B Page No. 4/8 outside Delhi or any part thereof by such route and within such time as the Commissioner of police may specify and not to enter or return to Delhi or part thereof, as the case may be from which he was directed to remove himself."

In view of the above mentioned case law there is nothing on the record that by which means the copy of the externment order was served upon the accused. No documentary evidence is there on the record to show whether the said order has been served upon the accused in writing, or by beat of drum or otherwise as the concerned officer thinks it fit.

Applying the above mentioned case law in the facts and circumstances of the present case, it can fairly be concluded that the notice was not served upon the accused in any way.

Further, the prosecution has failed to prove the alleged externment order in the Court. In such cases, it is utmost essential to prove this externment order because the case itself is for violation of this order. However, no official from the concerned office had appeared as a witness to prove the said externment order. Moreover, the record only contains the photocopy of this order which cannot form the basis of conviction where standard of proof should be beyond shadow of doubts. In absence of proof of externment order, accused cannot be held guilty U/s 53/116 of Delhi Police Act.

Further, it is evident from the record that the IO of the case had not joined any public persons during the proceedings despite opportunities to him. PW1­HC Rajbir during his cross examination on behalf of the accused has DD No. 62­B Page No. 5/8 categorically deposed that three were public persons available at the place of apprehension of the accused but despite request none agreed to join and left the spot without disclosing their names and addresses but they remained silent on the aspect as to why the said public persons were not served any notice in writing for non joining the proceedings. Hence, his testimony in this context is not convincing to the Court, as it is highly unnatural that they could not get even a single person to join in the proceeding despite the fact that the place of arrest is a through fair area. The police officials failed to give reasonable excuse as to why no public person was joined in the police proceedings with notice in writing or why they failed to take legal action u/s 187 IPC on refusal of the public persons. This failure on the part of the prosecution creates reasonable doubts in the prosecution story.

In this regard reliance may be placed on the following case laws:­ In case reported as ''1990 CCC 3'', titled as ''Roop Chand Vs. State of Haryana'' the Hon'ble Punjab & Haryana High Court has held that:

''When some witness from the public was available then the explanation furnished by the prosecution that they refused to join the investigation,the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.

In case reported as ''1990 CCC 20'' titled as ''Maluk Singh Vs. State of Punjab'', the Hon'ble Punjab & Haryana High Court has further held that:

''Joining of witnesses in the case of DD No. 62­B Page No. 6/8 excise is not a mere formality, although there is no bar in taking into account the testimony of police witnesses, as they are also good witnesses, but to restore the confidence of general public in the investigating agency it is always desirable that whenever any witness from the public is available, he should be joined to rule out the possibility of plantation''.

In the above mentioned cases, there were no public witnesses who had been joined in the proceedings. It is not necessary in such recovery that public witnesses must be joined but sincere attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses or that they were not available. A stereo­type statement of non­availability or non­agreement on behalf of the witnesses will not be sufficient to serve the purpose.

12. In view of the facts and circumstances of the case it is crystal clear that the Prosecution has failed to prove its case beyond reasonable doubt. There is no convincing evidence on the record which could substantiate any charge upon the accused for the alleged offences and it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offence, as the Prosecution story is highly doubtful and the benefit of doubt is the right of the accused. It is also an established law of the land that the accused should not be convicted in doubtful circumstances. Even, if DD No. 62­B Page No. 7/8 there are two views possible, the view favourable to the accused has to be accepted. Since, the Prosecution has failed to establish a case against the accused Ravinder @ Bablu for the alleged offences beyond reasonable doubt, I am also not inclined to convict the accused in doubtful circumstances. Consequently, by giving benefit of doubt, I hereby acquit accused Ravinder @ Bablu for the offence punishable U/s 53/116 of D.P. Act.

13. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.

14. The file be consigned to record room.

Announced and dictated in the open court today i.e. on 21.12.2011 Sunil Kumar MM/Rohini Courts Delhi/21.12.2011 DD No. 62­B Page No. 8/8