Delhi District Court
Inderjit Chhabra vs State on 31 March, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
CA No.20/09
Inderjit Chhabra
S/o Sh. Ram Lal Chhabra,
R/o 47, Avtar Enclave,
Paschim Vihar, Delhi. .....Appellant
Versus
State,
Govt. of NCT of Delhi
Through its Public Prosecutor .....Respondent.
AND
CA No.21/09
Gurcharan Singh,
S/o Sh. Sewa Singh,
R/o 6/18, Old Rajinder Nagar,
New Delhi. .....Appellant.
Versus
State,
Govt. of NCT of Delhi
Through its Public Prosecutor .....Respondent.
AND
CA No.22/09
Surender Mohan,
S/o Sh. Sher Jung,
R/o AH52, Shalimar Bagh, Delhi. .....Appellant.
Versus
State .....Respondent.
Page No. 1 of pages 12
J U D G M E N T
1. By this common judgment, I shall dispose off the following three appeals filed by three different appellants:
(a). CA No.20/09 titled as Inderjeet Singh Chabra Vs. State,
(b). CA No.21/09 titled as Gurcharan Singh Vs State,
(c). CA No.22/09 titled as Surender Mohan Vs. State.
2. All the aforesaid appellants are impugning the judgment and order on sentence dated 15.05.2007 & 17.05.2007 respectively, passed by Ld. MM/Delhi, whereby all the appellants were held guilty U/s 353/34 IPC in the case bearing FIR bearing no.250/97 PS Bara Hindu Rao U/s 353/186/34 IPC titled as State Vs. Inderjeet Chabra etc. and accordingly were convicted therein under and awarded sentence of R.I for the period of five months and fine of Rs.1,000/ each and in default of payment of fine, the appellants were to under go simple imprisonment for the period of one month. However, the appellants were acquitted for the offence U/s 186/34 IPC.
3. Succinctly stated the facts of the case necessary for the disposal of the appeal are that on 24.09.1997, Sh. Pritam Singh, Asst. Sanitary Insp. (ASI) lodged a complaint with SHO PS Bara Hindu Rao, interalia alleging that he alongwith other officials of MCD were present at Hathi Khana Safai Nirakshan Karyalaya, Sadar Pahar Ganj, Zone83, where Sh. B.D. Sahni, General Magistrate was about to hold a mobile court. It was alleged that at about 11.30 a.m., one Inderjeet Chabra of Azad Market, came there, alongwith other shop keepers of the area and the said persons grappled with the MCD official present there and used abusive language due to which, the complainant Pritam Singh received Page No. 2 of pages 12 minor injury, but he refused to get himself medically examined. The said persons also raised slogans and surrounded the officials and by doing so they created obstruction in the discharge of official duties. On these allegations the FIR bearing no.250/97 U/s 353/186/34 IPC was registered at PS Bara Hindu Rao and the investigation was initiated. After the completion of investigation, charge sheet was filed in the court and charge U/s 186/34 & 353/34 IPC was framed on 10.05.2000, to which all the appellants pleaded not guilty and claimed trial. Thereafter, as many as 12 witnesses (PW7 was allocated to two witnesses namely Sh. Prem Kumar and Sh. K.K. Gaur) were examined by the prosecution in its support then all the three accused persons were examined U/s 281 Cr. P. C, wherein they denied the case of the prosecution and claimed innocence and however they preferred not to lead any evidence in their defence. Then after hearing the arguments, the Ld. Trial Court vide the impugned judgment dated 15.05.2007 held the appellants guilty U/s 353/34 IPC and awarded the above mentioned sentence to the appellants, however all the appellants were acquitted U/s 186/34 IPC. The appellants feeling aggrieved by the said judgment and order, preferred the present appeal for setting aside the said judgment of conviction and order on sentence.
4. The appellants Inderjit Singh Chabra and Gurcharan Singh have challenged the impugned judgment and order on the grounds that the same is based on surmises and conjunctures and Ld. Trial Court has decided the case arbitrarily and without applying its judicial mind. It has not properly appreciated the material on record and it has gravely erred in not appreciating the fact that the offence U/s 186 and U/s 353 Page No. 3 of pages 12 IPC are intricately interconnected with each other. The facts of the case of the prosecution was so interwoven that they can not be segregated in as much the allegation of insult from the so called assault are merged in one another and the complainant has only resorted to the device of Section 353 IPC which is a camouflage in order to evade the provisions of Section 195 Cr.P.C. The Ld. Trial Court has further failed to appreciate the fact that as the prosecution has failed to prove the complaint U/s 195 Cr.P.C, not only the offence U/s 186 IPC goes, but the other camouflage Section of 353 IPC also go. Further, the Ld. Trial Court has not appreciated that the complainant himself has improved his case in order to give colour to his falsified story. In case the complainant has received injury, he should have himself medically examined to prove the truth and in the absence of any such medical evidence the inference has to be drawn against the prosecution. Further, the complainant had improved his case by alleging that the persons present there, had thrown the file which were placed before the court. This was never the case of the prosecution in the complaint Ex.PW2/A. Thus these improvement rather go to show that the complainant was hell bent upon to prejudice the mind of the court and to seek conviction by hook or crock. The Ld. Trial Court did not appreciate that in case the files were thrown or torn, the investigation agency ought to have taken into custody and produced in the court. The absence of such a crucial evidence, falsify the case of the prosecution. The Ld. Trial Court further gravely erred in not appreciating the fact that Special Executive Magistrate Sh. B.D. Sahni was not examined in the Court. The complainant in the present case has failed to explain as Page No. 4 of pages 12 to what duties were being discharged by Sh. Sahni at the relevant time and hence, any hindrance such a duty which is not defined can not be said to have been proved. The Ld. Trial Court did not appreciate the fact that all the other so called officials present there, did not support the case of the prosecution at all. Ld. Trial Court had adopted the method of pick and choose from the statements of the hostile witnesses and in this way, Ld. Trial Court lost the sight of the law laid down by Hon'ble Apex Court and Hon'ble High Court in respect of the fact that the statement of the witness, who is declared hostile is either to be believed as a whole or discarded as a whole. If the Ld. Trial Court thought it to be lawful to extract certain portion from the statement of the hostile witnesses, it ought to have also relied upon the fact that all these witnesses had not identified any of the accused in the court. Thus the conclusion arrived at by Ld. Trial Court is erroneous. It is also claimed that Ld. Trial Court further gravely erred in not appreciating the fact that the appellant was not arrested in the presence of the complainant or any of the prosecution witnesses and as such the prosecution ought to have put the appellant to test identification pared to fix his identity and more specifically when the parentage and address of the appellant was not given by the complainant in the complaint. The complainant even has admitted in the court during his evidence that the appellant was not known to him prior to the occurrence. Thus the appellant is entitled to acquittal on this ground alone, as the identification of the appellant in the court for the first time in evidence is meaningless. Further the prosecution has been failed to produce material documents on record. It is also stated that Ld. Trial Court did Page No. 5 of pages 12 not realize that the appellant is senior citizen and a patient of serious ailments. he has already faced trial for the period of ten years and the sentence of imprisonment was very harsh. Ld. Trial Court has acted in a haste manner.
5. The appellant Surender Mohan while challenging the impugned judgment and order on the aforementioned grounds, has also claimed that Ld. MM/Delhi has erred in law while failing to see whether the prosecution has proved its case beyond the reasonable doubts as Ld. MM/Delhi has not appreciated that the appellant has neither been named in the FIR nor he was arrested from the spot and even he was arrested on 20.10.1997 i.e. after 26 days of incident at the instance of one Pritam Singh and further the prosecution has failed to explain the aforesaid delay. No PCR was called at the spot and even the Municipal Magistrate Sh. B.D. Sahni did not lodge any complaint which itself creates doubt on the entire prosecution case. He further claimed that FIR was registered on the complaint of Pritam Singh ASI, who allegedly suffered injuries from the incident, but no injury was proved as no MLC of said Pritam Singh was ever prepared by any doctor at any point of time. Ld. MM/Delhi did not appreciate the fact that the incident took place at about 11.30 a.m. but the complaint was lodged at about 2.20 p.m. and the delay in lodging the aforesaid complaint has not been explained. Ld. MM/Delhi erred by holding that the appellant was guilty of the offence U/s 353 IPC despite of the fact that all the eye witnesses were hostile witnesses and they have not supported the prosecution version except one Pritam Singh. The conviction and sentence passed by the Ld. Trial Court is against the facts and law and is purely based on Page No. 6 of pages 12 conjunctures and surmises and is not supported by any worthy evidence which could bring home the alleged guilt of appellant herein. The testimony of PW2 Pritam Singh has material contradictions and even in the said testimony itself, he has not assigned any specific role of the appellant and the said fact has totally been ignored by Ld. Trial Court. The main material witness i.e. Sh. B.D. Sahni, Municipal Magistrate has not been examined by the prosecution and no plausible explanation was given for his non examination. Prosecution has further failed to explain that as to why the complaint was not lodged by the Ld. Municipal Magistrate when he was very much present at the spot. Ld. Trial Court did not appreciate while passing the impugned order and judgment that there are material contradictions in the statements of prosecution witnesses as PW1 Ct. Jyoti Shankar has stated that on 25.09.1997, SI Narender Tyagi telephoned to Inderjeet Singh and called him to the P.S., who came to PS alongwith 2530 persons. SI Narender Tyagi arrested Inderjeet Singh and conducted his personal search. On the other hand PW11, SI Narender Tyagi has stated in his examination before Ld. Trial Court that on 25.09.1997, Inderjeet Chabra accused now present in the court alongwith 2025 persons came to PS Bara Hindu Rao and asked me as to why the present case was registered against him. Ld. MM/Delhi did not appreciate while passing the impugned judgment and order that the accused persons have been discharged from the charges of under Section 186 IPC, on the other hand the accused persons have been convicted under Section 353 IPC, however, the ingredients of both the sections are almost interalia same and both are running section. Ld. MM/Delhi failed to appreciate while Page No. 7 of pages 12 passing the impugned judgment and order that no independent witness from the public or the persons i.e. the persons who were challenged were not examined by the IO or before the Ld. Trial Court and the files and file's cover which were torn were not seized.
6. I have carefully heard the rival submissions of the counsels for the parties. I have also perused the entire material placed on record particularly the impugned order and judgment, the contents of the appeals specially the grounds taken therein as well as the record summoned from the Trial Court.
7. As per submissions of Ld. counsels for the aforesaid appellants, the impugned judgment is not sustainable in the eyes of law as the offence U/s 186 and U/s 353 IPC are intricately interconnected with each other and once it is held that offence U/s 186 IPC is not made out than offence u/s 353 IPC also can not go. Since prosecution has failed to prove the complaint U/s 195 Cr.P.C, so not only the offence U/s 186 IPC goes but the other camouflage Section of 353 IPC also goes. In their said contention they have placed reliance upon a judgment reported as 1996 JCC 535 (DHC). It is also added that since in this case the appellants were not arrested in the presence of complainant or any of the prosecution witnesses and as such the prosecution ought to have put the appellants to Test Identification Parade to fix their identity and more so when the appellant Gurcharan and Surender Mohan were not named in the FIR and the parentage and address of the appellant Inderjit Chhabra had not even mentioned in the complaint. The complainant even has admitted in the court during his evidence that the appellants were not known to him prior to the occurrence and as Page No. 8 of pages 12 such on this sole ground the appellants are entitled to acquittal as the identification of the appellants in the court for the first time in evidence is meaningless. Further, B.D. Sahni, Municipal Magistrate has not been examined by the prosecution before the Ld. Trial Court without any explanation despite the fact that his name has been mentioned in the challan in the list of witnesses and his statement U/s 161 Cr.P.C has been recorded by the investigating officer and non examination of the said witness is certainly a serious infirmity on the part of prosecution. It is also added that all the witnesses except Pritam Singh have turned hostile in the matter. Further the FIR was registered on the complaint of Pritam Singh, who allegedly suffered injuries from the incident but no injury was proved as no MLC of said Pritam Singh was prepared as the said witness was not willing to get himself medically examined. This fact itself creates a big doubt in the mind about the involvement of the applicants in the alleged incident. The testimony of Pritam Singh is also suffered from material contradictions and improvements and the said fact has totally been ignored by Ld. Trial Court.
8. On the other hand, as per Ld. Addl. PP for the state the appeals as filed by the aforementioned appellants are devoid of merits as it has failed to point out any material defect or illegality in the impugned judgment. Ld. Trial Court has correctly appreciated the facts and evidence brought on record. It is specifically urged that the offences U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint U/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for offence U/s 353 or 332 IPC is not barred. In her said submissions, she has placed reliance upon a judgment reported as 2002 (1) JCC 436. Page No. 9 of pages 12
9. After giving thoughtful consideration to the rival submissions of both the sides and perusing the relevant material, I find myself in complete agreement with the claim of Ld. Addl. PP for the State that the offences U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint U/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for offence U/s 353 or 332 IPC is not barred.
In Pankaj Aggarwal & Ors. Vs. State of Dehi & Anrs. 2001 (3) Crimes 361 (SC) their Lordships of the Supreme Court after referring to the earlier decision in Durga Charan Nayak Vs. State of Orissa AIR 1966 SC 1775 held that the offence U/s 186 and 353 or 332 IPC are distinct and in the absence of a complaint u/s 195 Cr.P.C regarding the offence U/s 186 IPC, trial for the offence U/s 353 or 332 IPC is not barred.
In AIR 1966 SC 1775 (supra), it was held that the provisions of Section 353 IPC and Section 186 IPC are distinct offences and the quality of the offence is also different.
In view of the afovesaid settled preposition of law, the position is clear that the plea as raised by Ld. counsels for the appellants that the offences U/s 186 and 353 IPC go side by side and they run together and if offence U/s 186 IPC is not made out and the complaint U/s 195 Cr. P. C is not proved, then other offence U/s 353 IPC also can not run, has no force in it and the offence U/s 353 IPC can be tried separately and as such for the Trial Court there was no bar to proceed U/s 353 IPC. However, I am fully convinced with the submissions of Ld. counsels for the appellants that since the prosecution was failed to prove its case against any of the accused persons beyond the shadow of reasonable Page No. 10 of pages 12 doubts, so all the appellants deserve an order of acquittal in their favour on account of benefit of doubt.
First of all, in this case the appellants were not arrested in the presence of complainant or any of the prosecution witnesses and as such the prosecution ought to have put the appellants to judicial Test Identification Parade to fix their identity and more so when the appellant Gurcharan and Surender Mohan were not named in the FIR even and the parentage and address of the appellant Inderjit Chhabra was not mentioned in the complaint. The complainant even has admitted in the court during his evidence that the appellants were not known to him prior to the occurrence and as such on this sole ground the appellants are entitled to acquittal as the identification of the appellants in the court for the first time in evidence is meaningless. Further, Sh. B.D. Sahni, Municipal Magistrate has not been examined by the prosecution before the Ld. Trial Court and no explanation has been given for his non examination. It is certainly a big dent in the case of the prosecution as it has not been explained as to if Sh. Sahni was the main sufferer then why instead of filing the complaint by him, the same was preferred by ASI Pritam Singh, whose statement too suffers from material contradictions and improvements. It is also not explained as to if ASI Pritam Singh had suffered injury in the incident then why he refused to get himself medically examined and in this manner, the injuries suffered by him could not be proved and this very fact creates a doubt even about the occurrence of alleged incident itself. In the case where, all the witnesses except Pritam Singh have turned hostile, Ld. Trial Court has preferred to rely upon the statement of Pritam Singh, Page No. 11 of pages 12 who had improved his case by alleging that the persons present there, had thrown the file which were placed before the court. This was never the case of the prosecution in the complaint Ex.PW2/A. Thus, the appellants deserve that they should be given the benefit of doubt. Accordingly, I hereby allow the appeals and set aside the impugned judgment of conviction dated 15.05.2007, whereby all the appellants were held guilty U/s 353/34 IPC and order on sentence dated 17.05.2007, whereby they were awarded sentence of R.I for the period of five months and fine of Rs.1,000/ each and in default of payment of fine, the appellants were to under go simple imprisonment for the period of one month. Resultantly, the appellants Inderjit Chhabra, Gurcharan Singh and Surender Mohan are acquitted of the charge U/s 353 IPC by giving them benefit of doubt. The appellants are at liberty to get back the amount of fine paid, if any, upon moving of an appropriate application.
10. One copy of judgment be placed in each of the files bearing CR No.20/09, 21/09 and 22/09.
11. TCR (lying in the file bearing CA No.20/09) alongwith the copy of judgment be sent back to the Ld. Trial Court.
12. Appeal files be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 31.03.2009) ASJ04 (NORTH)/DELHI
Page No. 12 of pages 12