Delhi District Court
State vs . Mohan Singh on 28 January, 2012
-:1:-
IN THE COURT OF SH. PURSHOTAM PATHAK : MM-07:
DELHI
State VS. Mohan Singh
FIR No: 431/98
P. S. : Patel Nagar
U/s : 186/332/353/34 of Indian Penal Code
JUDGMENT
Sl. No. of the case and : 533/2
Date of its institution : 23.09.1999
Name of the complainant : HC Shubh Ram
Date of Commission of offence : 02.07.1998
Name of the accuse : (1) Mohan Singh
S/o Sh.Pritam Singh
R/o C-322,JJ Colony,
Inder Puri, Delhi.
(2) Tulsi Ram
S/o Sh.Roop Chand
R/o D-325, JJ Colony,
Inder Puri, Delhi.
( Expired)
Offence complained of : Under section186/353/332/34 of
Indian Penal Code
Plea of accused : Plead Not guilty
Final Order : Acquitted
Date of Institution of Case : 23.09.1999
Judgment Reserved : 28.01.2012
Date of Judgment : 28.01.2012
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. The present case was registered against aforesaid accused Mohan Singh and Tulsi Ram on the allegation that on 02.07.1998 at about 6:30 AM at Naraina Phase-II, in front of A17, the accused State Vs Mohan Singh Page No. 1 of 9 -:2:- persons voluntarily obstructed HC Shub Ram in discharge of his public function and assaulted him while discharging his official duty and voluntarily hurt him while he was discharging his duties as public servant. During the course of trial one of the accused Tulsi Ram expired and proceedings against him was abated.
2. Charge sheet filed in the court and in compliance of Section 207 Cr.P.C. copies of the documents were supplied. Thereafter charge Under Section 186/332/353/34 Indian Penal Code was framed against the accused on 08.02.2006 to which accused pleaded not guilty and claimed trial.
3. Thereafter, in order to prove its case, the prosecution has examined following witnesses.
4. PW1 HC Jai Prakash deposed that on 02.07.1998 he was posted as driver at PCR DL1V-3652. He stated on that day he was on duty from 8 p/m to 8 a.m. and at around 6:15 a.m. he proceeded towards Loha Mandi for the purpose of cleaning the police Gypsy. When he reached near Naraina Phase II he saw three-four young persons standing near a tempo no. DLILB-2730. At the directions of HC Subh Ram, he went near the tempo and found large quantity of Katta of liquor lying in the tempo. He stated two-three persons who were taking out the katta from the tempo on seeing him, fled away. At around 6:30 a.m. One person came on motorcycle followed by 12/14 other persons on scooters and motorcycles. They made Gherao of the Gypsy and one of them called two other to take the tempo with them. When he and HC Subh Ram objected to them they took out both of them from the Gypsy. Accused snatched away the mike from HC Subh Ram and restricted him to send the message to control room. Accused along with their associates assaulted them and by using criminal force they kept them on one side. He stated one person State Vs Mohan Singh Page No. 2 of 9 -:3:- took away the tempo and remaining followed him. When they tried to follow them in their Gypsy stones were thrown on them. HC Subh Ram gave message to power-4 about the said incident and SI Manjar Khan along with one Constable came to the spot. SI Manjar Khan recorded his statement.
5. PW2 W/HC Vidhya Devi, deposed that on 02.07.1998 she was working as Duty officer and at about 11:00 AM she received one rukka from SI Manzhar Khan and as per rukka FIR was registered.
6. PW3 ASI Subh Ram deposed that on 02.08.1998 he was posted at I/C Van power A along with Driver Jai Prakash and on that day he was on duty from 8 p.m to 8 a.m. He stated at around 6:15 p.m. they were going to Loha Mandi for cleaning the Gypsy and when they reached Phase II Naraina, they saw 3-4 young person standing with tempo NO. DL1LB-2730. He directed Ct. Jai Prakash to go near the tempo. Large quantities of Katta of illicit liquor were found in the tempo. He stated 2-3 persons were taking out those kattas from the tempo and on seeing them they fled away. At around 6:30 a.m. Accused Mohan Singh came on motorcycle followed with 12-14 persons on scooter and motorcycle. They made Gherao of the Gypsy and from them one person called two others to take the tempo with them. When he and HC Jai Prakash objected they took them out from the Gypsy and manhandled with them. Accused snatched away the mike from his hand, restricted him from sending the message to control room. Accused along with his companions assaulted them and by using criminal force kept them on one side. He stated one person took away the tempo and remaining followed him. When they tried to follow them in their Gypsy stones were thrown on them. He gave message to power-4 about the said incident and SI Manjar Khan along with one Constable Bhagwan Singh came to the spot. SI Manjar State Vs Mohan Singh Page No. 3 of 9 -:4:- Khan recorded his statement. On 17.06.1999, he went to PS Patel Nagar for his own work and saw that the accused were present in the reporting room. He recalled that both these persons were involved in incident happened on morning of 02.07.1998 and one who disclosed his name as Mohan Singh was the person who intimated and assaulted them on 02.07.1998 and took away the tempo. Another person who disclosed his name as Tulsi Ram was also co-accused involved in crime on that day.
7. PW4 SI Rajinder Singh deposed that on 25.05.1999 the present case was handed over to him for further investigation. On 17.06.1999 both the accused Mohan Singh and Tulsi Ram were present in PS and meanwhile the complainant HC Subh Ram also came at the PS. On seeing both the accused he told him that these are the persons who were present at the spot on the date of incident on 02.07.1998. On this he recorded the supplementary statement of HC Subh Ram. He also collected the complaint u/s 195 Cr.PC from the office of ACP.
In his cross examination he stated that he do not know the DD entry made by HC Subh Ram on 17.06.1999.
8. PW 5 SI Manjar Khan deposed that on 02.07.1998 on receiving DD entry no. 37 A he along with Ct. Bhagwan Singh reached at the spot. He recorded the statement of HC Subh Ram regarding the recovery of illicit liquor in FIR no. 430/98. In that statement he had stated that some people forcefully took a tempo filled with illicit liquor. Thereafter, accused person Tulsi and Mohan Singh were arrested vide personal memo Ex. PW5/B and Ex. PW5/C.
9. PW6 Kuldeep Singh deposed that in the year 1998-99 police official from PS Patel Nagar came to his house and took him to PS. They asked him about his tempo no DL1LB-2730 and he stated to State Vs Mohan Singh Page No. 4 of 9 -:5:- them that his aforesaid tempo was taken by his driver Sanjay and he used to drive it. As witness resiled from his statement, he was cross examined by Ld. APP in which he stated that he cannot say that on 11.03.1999, he handed over his tempo to police officials. He stated it to be incorrect that on 02.07.1998 his tempo was being driven by Mohan Singh and Tulsi Ram was helper on it. He stated to be incorrect that he produced Mohan Singh and Tulsi Ram before the police officials and they were arrested in his presence.
10. PW7 Emil Lakra deposed that on 14.06.1999 he was posted at JCB West Zone and on 1-02/07/98, HC Subh Ram along with staff was on duty at power 8. On the said date some persons obstructed them and gave beating to them while they were performing their official duties. He made a complaint u/s 195 Cr.P.C.
In cross examination he deposed that duty register was signed by him and before making the complaint he checked the said duty register.
11. After recording the evidence of this witness, the prosecution evidence was closed. The accused Mohan Singh was examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to him where he denied the allegations raised against him and he choose not to lead defence evidence.
12. I have heard the Ld. APP for State and counsel for accused and perused the record.
13. It is argued by the Ld. APP for State that the case has been proved against the accused persons and there are no contradictions and dents in the testimony of witnesses and in view of the same there is no impediment in convicting the accused persons.
14. On the other hand it has been argued by the defence counsel that police officials were not at duty at the time of incident and State Vs Mohan Singh Page No. 5 of 9 -:6:- Section 332 is not made out as hurt is not proved and Section 353 is also not made out .
15. I have heard submissions of both the Ld.Counsels And Ld.APP for State and perused the records of the case.
16. The accused is charged with three different kinds of offences.
I will deal with all of them one by one.
Firstly, I come to the offence u/s 186 Indian Penal Code . Section 186 Indian Penal Code read as under :
Regarding the offence u/s 186 Indian Penal Code, it says that; Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Prosecution has not been able to prove that PW1 HC Jai Prakash and PW3 Ct.Shubh Ram were on duty on the date and time of incident as no DD entry regarding their arrival or departure has been brought on record. Prosecution has not brought anything to prove that complainant was discharging his official duty as complainant himself has stated that he was proceeding towards Lohamandi for purpose of cleaning the Gypsy.
The prosecution has not proved the possibility of presence of PW1 HC Jai Prakash and PW 3 ASI Shubh Ram at the place of incident through some piece of reliable evidence or by proving/ producing the arrival entry of said persons . The failure of prosecution to prove either of above has made it difficult to believe that said persons were discharging their duties. Thus offence U/S 186 Indian Penal Code is not made out .
17. Secondly, I come to the offence u/s 332 Indian Penal Code .State Vs Mohan Singh Page No. 6 of 9 -:7:-
Section 332 Indian Penal Code read as under :
Regarding the offence u/s 332 Indian Penal Code, it says that; Voluntarily causing hurt to deter public servant from his duty-Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
PW6 Kuldeep Singh, the owner of the tempo, is the person who could have proved that it was accused who was driving the said Tempo on the date of incident but he has turned hostile and denied the suggestion that on 02.07.1998 accused Mohan Singh was driving the tempo and Tulsi Ram was helper in it. Thus, when presence of accused as well as complainant at the time of incident is not proved , offence U/S 332 IPC is not made out .
18. Thirdly, I come to the offence u/s 353 Indian Penal Code.
Section 353 Indian Penal Code read as under :
Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.State Vs Mohan Singh Page No. 7 of 9 -:8:-
19. Here in this case, the presence of accused and complainant at the spot at the date and time of incident is not proved. The prosecution has not been able to prove that HC Jai Ram and Shubh Ram were discharging thier official duty on the date of incident.
Beside this, prosecution has not been able to prove the presence of accused and use of criminal force by him. In this case accused was not arrested on spot but he was arrested while he was on a visit to P.S. Even the owner of tempo has not supported the case of prosecution that accused Mohan Singh was driving the vehicle with helper Tulsi Ram on the date of incident.
20. For all the offences U/S 332 and 353 Indian Penal Code, it is important to make out that hurt U/S 332 and assault and criminal force U/S 353 was to deter public servant from discharge of his public duty .
21. The prosecution has not been able to prove that it was accused who caused injury to HC Shubh Ram . Even if it is believed hurt was caused , it cannot be said that it was the accused who caused him hurt as not a single witness has come on record to corroborate his testimony which on itself is strange enough to believe that it was a public place.
22. The testimony of official witnesses does not find any corroboration from any independent source although place of incident was a public place. 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 of 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 failed to take action State Vs Mohan Singh Page No. 8 of 9 -:9:- 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 :
23. 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. Non examination of independent witnesses by itself may not give rise to adverse inference against prosecution. However, the unexplained omission to examine the independent witnesses would assume significance.
24. Thus, in view of the facts and circumstances and the discussion made hereinabove, I am of the considered view that the prosecution has failed to prove its case against accused Mohan Singh beyond reasonable doubt. Hence, the Accused Mohan Singh is acquitted from the offence U/S 186/332/353/34 of Indian Penal Code.
Announced in the Open Court ( Purshotam Pathak) today on the 28th January 2012 MM-07, Central, Delhi State Vs Mohan Singh Page No. 9 of 9