State vs Ramesh & Ors.
2011 Latest Caselaw 135 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRL.A. 165/1996

%                                                 Reserved on: 11th November, 2010
                                                  Decided on: 11th January, 2011
STATE                                                           ..... Appellant
                                    Through:   Mr. Pawan Bahl, APP.

                           versus

RAMESH & ORS.                                                    ..... Respondents
                                    Through:   Mr. A.K. Singh with Mr. Tauseef
                                               Akhtar, Advocates for Respondent
                                               No.1.
                                               Mr. M.P.S. Chauhan, Advocate for
                                               Respondent No. 2.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               Not necessary

2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported
   in the Digest?                                                Yes

MUKTA GUPTA, J.

1. The prosecution case in nutshell is that on 4 th March, 1985 at about

11.00 A.M., both the Respondents along with 18-20 associates went to the

office of the DCP, Traffic at Police Headquarter, IP Estate. When they

reached the office, the orderly of the DCP, Traffic, Constable Kishore Lal

stopped them and both the Respondents along with their associates forcefully

entered the office. They shouted slogans 'Delhi Police Murdabad',

manhandled and pushed the orderly Constable Kishore Lal. Inside the office,

heated exchange of words took place and chairs were thrown here and there.

The DCP, Traffic Sh. A.S. Khan was also gheraoed. Many police officials

reached there and rescued the DCP, Traffic. PW9, Sh. Neeraj Kumar, the

DCP traffic on 30th April, 1985 accorded the sanction for prosecution under

Section 195 Cr.P.C. On the same day FIR was registered on the complaint of

HC Kishore Lal, PW 6 and after investigation the police filed charge sheet

against both the Respondents. The Respondents were charged for offences

punishable under Sections 186/353/332/451/341 IPC. The prosecution in

support of their case examined 10 witnesses of whom material witnesses are

PW2, the then ACP Kewal Singh, PW3 the then DCP, Traffic AS Khan, PW5

the then Sub-Inspector Ahsan Ullah Siddiqui working as PA to PW3, PW6

HC Kishore Lal orderly of PW3 and the Complainant of the case and PW7 the

then Traffic Inspector, Head Quarter. The Respondents denied the

incriminating circumstances put to them under Section 313 Cr.P.C. and stated

that they had gone to the office of the DCP, Traffic with prior appointment

and by chance some other persons who were owners of Connaught Place

Market wanted to have a talk with the DCP, Traffic in connection with some

problem and it was then they had some heated arguments with the DCP.

Within minutes the local police reached there and as a result of the

misunderstanding and mistaken identity, the Respondents were apprehended

by the police. The Respondents also examined defence witnesses who stated

that only the Respondents had gone to meet the DCP Traffic at the PHQ on

the said day and all others remained standing outside the office and suddenly

15-20 police officers came and they could not understand what had happened

and why the police had come. The learned Trial Court acquitted the

Respondents of the charges framed against them primarily on the ground that

though the incident had taken place at the police headquarter and everybody

claimed that 15-20 persons had gathered however, strangely only two persons

could be apprehended and nobody else could be apprehended by the police.

Moreover, the testimony of the two main witnesses PW2 DCP Kewal Singh

and PW3 DIG A.S. Khan does not make out any offence against the

Respondents. PW2 has not supported the prosecution version and has stated

that there was no gherao of the DCP. Challenging the impugned judgment

dated 10th May, 1996 the present appeal has been filed.

2. Learned APP for the State contends that the learned Trial Court

primarily acquitted the Respondents on the ground that the most baffling point

in the prosecution case is that how the associates of the accused persons

managed to escape from the 9th Floor of the police headquarter despite their

involvement being at par with these two accused persons. As per the

statement of the witnesses, 60-70 police officials were there on the 9th floor of

the Police Headquarter and all the prosecution witnesses have given

unsatisfactory and contradictory versions rendering the whole prosecution

case into an arena of doubt. It is contended that merely because the other co-

accused persons could not be apprehended and the Respondents were the

one's who were identified and apprehended, the Respondents cannot be

acquitted of the charges against them. It is stated that PW2 DCP Kewal

Singh, PW3 Shri A.S.Khan and PW6 HC Kishore Lal, the Complainant are

the eye witnesses who have deposed about the sequence of events and all have

clearly implicated the Respondents. Hence the impugned judgment be set

aside by this Court.

3. Learned counsel for the Respondents on the other hand contends that

the allegations against the Respondents are that on 4th March 1985, at 11.15

A.M. they went to the 9th floor of Police Headquarter along with 18-20

persons manhandled the orderly to DCP, Traffic, entered his office forcefully

and gheraoed the DCP, Traffic. However, the fact is that the Respondents had

taken prior appointment from the DCP, Traffic and thus, there was no

question of forcefully entering the office and gheraoing the DCP. PW3 who

is the main witness, who was allegedly gheraoed and in whose office forceful

entry was made, on being recalled for further examination after Respondent 2

was arrested improved on his earlier version on leading questions put to him

by the learned APP. There is discrepancy in the testimony of witnesses as

some of them have deposed that the incident took place on the 8th floor while

the others deposed that the incident took place on the 9th floor. PW2 also did

not support the prosecution case as he has stated that when he heard the noise,

he went inside and saw people were sitting and there were heated arguments.

The chairs were not lying scattered. Thus there was neither any restrain nor

any act to constitute the offence of criminal trespass on part of the

Respondents.

4. PW5 Ahsaan Ullah Sidiqui, Inspector, Traffic in his testimony had

stated that his office is a public office and moreover, 11.00-12.00 A.M. is the

time for the public to meet the DCP and thus, the offence of trespassing

cannot be said to be made out. PW6 Kishore Lal the Complainant of the case,

the then orderly of PW3 deposed that at about 11.00-11.15 P.M., 15-20

persons came there, some of whom were wearing white Kurta Pyjama, and

they tried to enter into the office of DCP. The witness has identified the

Respondents as the one's whom he had stopped from entering into the DCP

office and had asked them to show the permission to meet the DCP, and also

enquired whether they had any appointment fixed with the DCP to which both

the Respondents stated that this is a public office and no appointment was

required. According to this witness, all the people started shouting slogans

and both the Respondents manhandled him, pushed him and forcefully entered

into the office of the DCP. This testimony of PW6 is totally contrary to PW3

and PW5 the then PA of PW3 who have stated that it is a public office and no

prior appointment was required especially when 11 A.M. to 12 noon was

public time and thus, PW6 as per his own version was unnecessarily stopping

the Respondents from entering the office of the DCP. Moreover, this witness

has not deposed in his examination-in-chief that his dress was torn in the

process. PW3 A.S.Khan has stated that the dress of Constable Kishore Lal

was torn by the mob and not by the Respondents. Strangely, though, 60-70

police officials were present there, however only the Respondents were

apprehended by the local police and no action was taken by the police officers

present in the Police Headquarter. The injuries on PW6 have not been proved

as the MLC has not been exhibited. Thus there is no corroboration to the

testimony of PW 6 and conviction cannot be based on his sole testimony

which is contradicted by all other witnesses.

5. Relying on Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773

it is contended that if two views are possible on the evidence adduced in the

case, one pointing to the guilt of the accused and other to his innocence, the

view which is favourable to the accused should be adopted. It is thus prayed

that the appeal be dismissed being devoid of merit.

6. I have heard learned counsels for the parties and perused the records.

PW3 the then DCP, Traffic A.S. Khan has deposed before the Court that 8-9

years back when he was working as DCP Traffic, he was sitting in his office

at PHQ at about 11.00 A.M.-12.00 P.M., about 20-25 persons entered into his

office and started shouting at him using filthy language. He tried to pacify

them. All of them were opposing the lifting of vehicles by the traffic police

which was obstructing the normal traffic in the area of Connaught Place.

PW3 identified Respondent No.1 as one of the person present on the day of

incident. He has deposed that they started throwing Chairs and sofa sets in his

office and all these persons including the Respondent no.1 was gheraoed and

thereafter, the office staff called the local police and about 2-3 people were

apprehended by the police. This witness in his examination-in-chief recorded

on the 19th December, 1994 does not say about forceful entry or his gherao.

This witness was cross-examined on behalf of Respondent no. 1 and certain

court questions were also put to him. In his cross examination, PW3 admitted

that no register is maintained in his office for the visitors nor it is required to

be maintained because it is a public office. He has further deposed that all

these persons remained in his office and after seeing the local police they ran

away. This witness has not stated anything in his testimony about what had

happened to the orderly who was allegedly manhandled. According to him it

was a public office and people were permitted to come. According to PW3,

PW2 ACP Kewal Singh and PW7, the traffic Inspector were present when the

local police arrived. However, as the Respondent no.2 was absconding so

PW3 was recalled on 4th October, 1995 after the Respondent no. 2 was

available. It is at this stage that the learned APP sought permission to further

record the examination-in-chief of this witness before cross-examination on

behalf of Respondent no. 2. In this examination-in-chief, PW3 improved his

earlier version that he heard some shouting outside his office and some people

were abusing his office orderly and a lot of noise was there. Some people

forced entry into his office and gheraoed him, confined him and abused him.

This materially improved testimony of PW3 cannot be considered in evidence

against the Respondent No.1 as he was not given any opportunity to cross

examine this witness after this materially improved statement. Moreover,

PW 2 the then ACP Kewal Singh has not supported the version of PW3 and

deposed that he heard the noise and when he went to the office of the DCP, he

found that the DCP was sitting on his chair and some other public persons

were also sitting on the chairs and they were discussing something about the

clearance of the traffic. PW2 pointed out towards Respondent No. 1 as one of

the person present at the DCP office and named Respondent No. 2 as present

on the day of incident. According to this witness, they were having heated

arguments. Thus neither the allegations of confinement nor assault have been

supported by this witness. This witness has been cross-examined by the

learned APP however, even in his cross-examination he has denied the

suggestions that the chairs were lying scattered or that the people including

the Respondents were standing in the DCP office or that they had gheraoed

the DCP. Though PW2 could not be cross-examined on behalf of Respondent

No. 2, as he was declared proclaimed offender at that time and was not

recalled for cross-examination, however, the testimony of this witness to the

extent it supports the accused can be looked into.

7. The charges against the Respondents were of trespassing however, all

the witnesses have stated that it was a public office and moreover, 11.00 a.m-

12.00 p.m. was the time for public meeting and hence, from the evidence on

record a charge under Section 451 IPC is not made out. As regards the

allegations of wrongful restraint under Section 341 IPC is concerned, the

material improvements in the testimony of PW3 have been contradicted by

PW2 that when he went to the office everyone was sitting in chairs including

the DCP and there was a heated discussion going on but the DCP was not

gheraoed. Moreover, PW3 has stated this fact in his subsequent testimony

which cannot be considered as no opportunity to cross examine him was

afforded to the Respondent No.1 after this examination-in-chief. Similarly,

the allegations of the offence under Sections 332 and 353, that is, causing hurt

and assault or criminal force to deter public servant from discharge of his

duties has also not been proved as the MLC of the PW6 has not been

exhibited and it has not surfaced that PW6 suffered injuries at the hands of the

Respondents. Also there is no mention of the alleged beating in the

examination-in-chief of PW6 and it is only during his cross examination that

he mentioned that he was beaten by the accused. In his cross examination, he

also stated that it was not mentioned in his complaint that accuseds have torn

his uniform, but during his examination-in-chief, he made specific allegations

that due to manhandling and pushing by both the accused, his uniform got

torn. In view of material contradictions and improvement in the testimony of

PW6, it does not inspire confidence. Moreover, from the testimony of PW6

and that of the other witnesses it is apparent that even if the version of PW 6 is

accepted he was unnecessarily not permitting the Respondents from entering

the office when admittedly it was public meeting time and no prior

appointment was required to meet the DCP, Traffic at that time.

8. I find no force in the contention of the learned APP for the State that the

learned trial court acquitted the Respondents on the ground that the

prosecution failed to give any satisfactory reply as to why the remaining

associates of the two accused were not arrested by the police. Learned trial

court after considering the testimony of all the prosecution witnesses and in

view of the material improvements and contradictions and rejecting the

defence as an after-thought held that the prosecution has not been able to

prove the guilt of the accuseds beyond reasonable doubt.

9. The present is an appeal against acquittal. Interference in the impugned

judgment of acquittal is permitted if the learned trial court has ignored

material evidence or misread the material evidence or ignored statutory

provision. If on marshalling the evidence, two views are possible then this

court will not interfere with the same. I find no infirmity in the finding of the

learned Trial Court arrived at after appreciating the testimony of the

witnesses. Hence, I find no reason to interfere with the impugned judgment

acquitting the Respondents.

10. The appeal is accordingly dismissed.

(MUKTA GUPTA) JUDGE JANUARY 11, 2010 vn