Delhi District Court
State vs . Mukesh @ Budhial on 14 February, 2012
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IN THE COURT OF SHRI PURSHOTAM PATHAK
METROPOLITAN MAGISTRATE : DELHI
Case ID No. 02401R0823802007
State Vs. Mukesh @ Budhial
DD No. 7A dated 10.05.2007
PS : Patel Nagar
U/s 53/116 DP Act
JUDGMENT
(a) Sr. No. of the case : 19/03
(b) Date of commission of offence : 10.05.2007
(c) Name of Complainant : ASI Mahender Singh
(d) Name of the accused : Mukesh @ Budhial,
S/o Late Sh. Madan Lal,
R/o E-17,
New Ranjeet Nagar, Delhi.
(e) Offence complained of : 53/116 DP Act
(f) Plea of accused : Pleaded not guilty.
(g) Final Order : Acquitted
Date of Institution of Case : 12.05.2007
Judgment Reserved for : 14.02.2012
Date of Judgment : 14.02.2012
Brief statement of the reasons for the decision :
1. The accused has been sent for trial on the allegation that on 10.05.2007, at about 9.15 AM, in front of Satyam Cinema, within DD No. 7A dated 10.05.2007 Page no. 1 of 7 -:2 :- jurisdiction of PS Patel Nagar, accused was found present within the territorial limits of NCT of Delhi despite the Externment Order of the Additional DCP dated 30.04.2007, whereby he was ordered to remain out of the limits of NCT of Delhi for a period of four months and thus accused committed an offence U/s 53/116 DP Act.
2. After completion of investigation, kalandra was filed. Accused was summoned and provision of section 207 Criminal Procedure Code was complied with.
3. The particulars of offence were explained to the accused in Hindi language and a notice for offence punishable U/s 53/116 DP Act was framed against accused on 01.09.2010 to which he pleaded not guilty and claimed trial and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined following three witnesses in support of its case.
5. PW 1 HC Ashok Kumar deposed that on 10.05.2007 he alongwith ASI Mahender Singh and Ct. Joginder Singh was on patrolling duty and at about 8.45 PM they saw accused Mukesh standing by the side wall of Satyam Cinema. He stated ASI Mahender Singh knew him before the incident and was also knowing that he was West District Out. ASI Mahender Singh inquired him about his presence in the area of District West but he did not gave any satisfactory reason of his presence and stated that he did not obey such District Out Order. Accused was arrested vide memo Ex. PW1/A. HC Ashok Kumar further deposed that they came to PS Patel Nagar vide DD No. 7A and Kalandra U/s 53/116 DP Act was prepared.
DD No. 7A dated 10.05.2007 Page no. 2 of 7 -:3 :- In his cross-examination, he stated it to be correct that spot of arrest was a populated area but no public person was called from nearby area to become witness in this case. He stated it to be correct that the word certified is not mentioned on the attested copy placed on the file. He denied the suggestion that accused was lifted from Karol Bagh and falsely implicated in the present case as ASI Mahender Singh knew that accused was West District Out.
6. PW 2 Ct. Joginder Singh deposed that on 10.05.2007 he alongwith ASI Mahender Singh and Ct. Ashok Kumar was on patrolling duty and at about 8.45 AM they saw accused Mukesh standing by the side wall of Satyam Cinema. ASI Mahender Singh knew him before the said incident and also knowing that he was West District Out. ASI Mahender Singh asked him about his presence in the area of West District but he did not gave any satisfactory answer. Accused was arrested vide memo Ex. PW1/A and they came to PS vide DD No. 7A and Kalandra U/s 53/116 DP Act was prepared.
In his cross-examination, he stated that the area from where accused was arrested was highly populated and they asked nearby hawkers to join the investigation but none joined by telling their genuine reasons. He stated he cannot say whether the certified copy of the Externment Order is placed by the IO on the file or not.
7. PW 3 ASI Mahender Singh deposed that on 10.05.2007 he alongwith Ct. Joginder and Ct. Ashok Kumar was on patrolling duty and at about 8.45 AM they saw accused Mukesh standing by the side wall of Satyam Cinema. He stated he knew him before the said incident and DD No. 7A dated 10.05.2007 Page no. 3 of 7 -:4 :- also that he was West District Out. He stated he asked the reason of his presence in the area but he did not give any satisfactory reply. Accused was arrested vide memo Ex. PW1/A and they went to PS vide DD No. 7A and Kalandra U/s 53/116 DP Act was prepared.
In his cross-examination, he stated public persons were present there but he did not ask any of them to join the investigation. He stated it to be correct that original/certified copy of Externment Order is not on file and only photocopy is placed on record.
8. Thereafter, prosecution evidence was closed and statement of accused was recorded. In his statement under Section 313 Cr.P.C recorded, the accused denied all incriminating evidence submitting that he was apprehended in Karol Bagh and not in West District. Despite opportunity, he did not opt to lead D.E.
9. I have heard Ld APP for the state as well as Ld. Cl for accused and have also gone through the file.
10. Public witnesses were not joined in investigation though available.
PW 1, PW 2 and PW 3 deposed that public persons were present at the spot. The testimony of official witnesses does not find any corroboration from any independent source. In my view the non joining of public witnesses is fatal to prosecution case particularly when no reasonable explanation has been given by prosecution for not joining public witnesses.
In case titled as Roop Chand Vs. State of Haryana reported as CC cases 3(HC) it was held as that where police has failed to join independent witnesses in investigation despite their availability and further DD No. 7A dated 10.05.2007 Page no. 4 of 7 -:5 :- failed to take action against those who refused to take part in investigation nor their names were noted down by police the explanation for police for not joining independent witness is an after thought and liable to be rejected.
In case of Hem Raj Vs. State of Haryana AIR 2005 SC 2110 it has been observed that :
The fact that no independent witness though available was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in prosecution case amongst the independent witnesses one who was very much in number of things from beginning was not examined by prosecution. Non examination of independent witnesses by itself may not give rise to adverse inference against prosecution. However, when evidence of alleged eye witnesses raise serious doubts on the point of their presence at time of actual occurrence. The unexplained omission to examine the independent witnesses would assume significance.
11. According to section 133 of DP Act - any order or notification published or issued by the Administrator or by the Commissioner of Police or any other police officer under any provision of this Act, and the due publication or issue thereof may be proved by the production of a copy thereof in the Official Gazette, or of a copy thereof signed by the Administrator or Commissioner of Police or other police officer, as the case may be, and by him certified to be a true copy of an original published or issued according to the provisions of this Act applicable thereto.
DD No. 7A dated 10.05.2007 Page no. 5 of 7 -:6 :- According to above section any order or notification published or issued under any provision of this act is to be proved by :
a) production of a copy thereof in Official Gazette; or
b) a copy thereof signed by Administrator or Commissioner of Police and by him certified to be true copy of original.
In this case, both the requirements of proving the Externment Order has not been followed and even the witnesses PW 1, PW 2 and PW 3 deposed that only photocopy of Externment Order is placed on record and original/certified copy of Externment Order is not on record. Here Externment Order itself is not proved. Hence, it cannot be said that accused was District Out from West District.
12. It is the case of the prosecution that accused was arrested at the side wall of Satyam Cinema, within jurisdiction of PS Patel Nagar, West District but in Statement of Accused U/s 313 Cr.P.C, accused stated that he was apprehended from PS Karol Bagh. PW 1, PW 2 and PW 3 have stated that they were on patrolling duty near Satyam Cinema and they arrested the accused from there but DD entry by which they left the PS has not been brought on record.
In my opinion prosecution was under an obligation to prove on record the above said DD entry vide which PW 1, PW 2 and PW 3 left the PS for patrolling so as to prove the possibility of availability of PW 1, PW 2 and PW 3 at the place of apprehension of accused.
DD No. 7A dated 10.05.2007 Page no. 6 of 7 -:7 :-
13. In view of aforementioned facts and circumstances, I am of opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts. I gave benefit of doubts to accused. Accused is accordingly acquitted.
Announced In Open Court (Purshotam Pathak) On 14th February, 2012 MM-Central-07:DELHI. DD No. 7A dated 10.05.2007 Page no. 7 of 7