Delhi District Court
State vs . Sumit Kumar on 12 October, 2022
IN THE COURT SH. KAUTUK
METROPOLITAN MAGISTRATE - 04 : NORTH : ROHINI COURT
NEW DELHI
Cr. Case 5287511/2016
STATE Vs. SUMIT KUMAR
FIR No. 691 /2006
Digitally signed
PS Prashant Vihar
by KAUTUK U/s 186/353/332 IPC
KAUTUK Date:
2022.10.13
17:04:14 +0530 JUDGMENT
A Registration Number 5287511/2016
B Name of the State
complainant
C Name of the accused & Sumit Kumar
his parentage and S/o Sh. Yashpal
address R/o F-10/4, Sector 15, Rohini, Delhi
D Offence Complained of 186/353/332/323 IPC
E Date of commission of 25/08/2006
offence.
F Date of Institution 18/08/2007
G Offence Charged 186/353/332 IPC
H Plea of the accused Pleaded not guilty.
person
I Order Reserved on 27/06/2022
J Date of 12/10/2022
Pronouncement
K Final Order CONVICTED U/s 332/353 IPC
ACQUITTED U/s 186 IPC
Vide this judgment the accused is being convicted of the offence
punishable under Section 353/332 IPC (hereinafter referred to as "the
act") in this case FIR No. 691/2006 Police Station Prashant Vihar for the
reasons mentioned below.
Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 1 of 16
1.CASE OF PROSECUTION :
Briefly stated, the case of the prosecution is that the complainant had visited the premise of accused on 25.08.2006 and found that the accused was indulged in illegal construction. It is further alleged that upon the direction for stopping the illegal construction the accused had abused and had beaten the complainant as well as the staff accompanying with complainant, thereby obstructing the complainant and the co-employees of the complainant from carrying out their official duty. It is alleged that the accused had entered the office of the complainant, on the same date, and had beaten the complainant with stick on the head of the complainant. As such, it is alleged that the accused committed the offence punishable u/s 186/353/332/323 IPC for which FIR No. 691/2006 was registered at Prashant Vihar PS, New Delhi.
2. Charge:
In compliance of the procedural mandate u/s. 173 CrPC, chargesheet against accused was filed in the present matter, upon completion of investigation.
Accused person was summoned to face trial and was supplied with the copy of the chargesheet as per s. 207 CrPC.
On the basis of the chargesheet, a charge for the offences punishable u/s 186/353/332 IPC was framed against the accused person, to which he pleaded not guilty and claimed trial. Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 2 of 16
3. Prosecution Evidence:-
3(a). PW-1 HC Rishi Parkash has proved the registration of FIR, which is Ex. PW-1/A and the endorsement on Rukka is Ex. PW-1/B. It is further submitted that FIR and the original Rukka was handed over to Ct. Ravi Parkash for giving it to 2nd IO/ASI Ishwar Singh.
3(b). PW-2 Surender Singh has deposed that on 25.08.2006 at about 10:30 pm he had reached the place of incident and saw that one person was encroaching the government land by constructing platform with the wall on the government wall, at the said time accused Sumit Kumar was also present. It is submitted that upon the direction for stopping the encroachment, accused scuffled with PW-2 and his staff and did not stop the encroachment. It is further deposed that on the same date when the complainant had returned to his office, accused came with his stick in his hand and had hit the complainant with the stick 3-4 times. In pursuance to which complaint was made and the present FIR was registered. PW-2 has further deposed regarding of his statement which is Ex. PW-2/A. In his cross-examination done by the Ld. APP, PW-2 had admitted preparation of site plan at his instance and arrest of the accused vide arrest memo Ex. PW-2/B. In his cross-examination done by Ld. Counsel for accused, PW- 2 has admitted that his official work included to see drain work, road work, development of park to save the land or encroachment etc. It has been Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 3 of 16 denied that looking after encroachment is exclusive work of land and building department. PW-2 has further denied the suggestion that he had taken some articles of the accused and had further refused to release the said articles upon the application of the accused. It is further submitted that PW-2 was sitting alone in the room while the alleged incident took place. It is submitted that the accused had entered the office at around 11:15 am. It is submitted that at the said time PW-2 was preparing bill for one Mr. Sh. Satbir Goyal. PW-2 has stated in his cross-examination that though he did not know who is the actual owner of the flat F-16/113, as the accused claimed himself to be the owner, however, accused was encroaching the Government flat in front of the shop. PW-2 had denied all the other suggestions made to him during the cross-examination.
3(c). PW-3 Satbir Singh has deposed that on 25.08.2006 at about 10:00 am he had visited the office of PW-2 for getting his bills prepared. It is submitted that PW-2 and Baljeet Singh entered the office and while PW-2 was preparing the bills one person came inside the office and started abusing in filthy language against PW-2. PW-2 had further deposed that the said person used one wooden stick with which he started beating PW- 2 on his head and PW-2 tried to protect himself using his hand. After the said incident a call was made at 100 number. It is submitted that PW-2 while leaving for the hospital had told PW-3 that the person who had beaten him was named Sumit and it was further told by PW-2 that Sumit Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 4 of 16 had beaten him as he had restrained Sumit from making an illegal construction on Government land.
PW-3 could not identify the accused person and further in his cross-examination conducted by the Ld. APP has stated that he could not identify the accused, due to lapse of more than 10 years. 3(d). PW-4 A.K. Jain has proven the complaint made to the SHO which is Ex. PW-4/A. It was deposed by PW-4 that he had gotten information about the alleged incident and further, the name of the assailant was told to him by PW Surinder singh and PW Satbir singh. It is in pursuance to the same he had made a complaint to SHO.
3(e). PW-5 HC Ravi has deposed regarding the receipt of DD No. 25 by HC Dayanand, pertaining to quarrel at F-16/113. It is deposed that after collection of the report and preparation of the Rukka PW-5 had gone to PS Prashant Vihar for registration of the present FIR. 3(f). PW-6 Baljeet Singh has deposed that he along with PW-2 had gone for inspection on 25.08.2006 near shop number F-16/113, Sector 15, Rohini, wherein, it was found that accused Sumit had encroached over the MCD land in front of his shop. It is deposed that PW-5 along with PW-2 had removed the illegal encroachment done by the accused and because of which accused had started the quarrel with PW-2. It is submitted that Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 5 of 16 accused was obstructing from removal of the illegal encroachment. It is further deposed that after returning from the site while PW-5 was drinking tea outside the MCD office, he saw accused running outside the MCD office with a danda in his hand. It is submitted that PW-5 did not see the alleged quarrel inside the MCD office. PW-5 has correctly identified the accused.
In his cross-examination done by Ld. APP, PW-5 has admitted that he had not seen the accused entered the office and the beating of PW-2 by accused, and he came to know about these facts later on.
In his cross-examination conducted by Ld. Counsel for accused, PW-5 has stated that he does not remember as to the persons accompanying siting inspection. It is deposed that illegal encroachment was done on the foot path situated in front of shop by putting glasses and installing angles and pipes and by further construction of shed over there. It is admitted that the said articles and the shade was removed and taken to MCD office. It is further deposed that there was no other staff except the JE and contractor Satbir at the time of the incident. 3(g). PW-7 SI Dayanand has deposed regarding the receipt of DD No. 25 Ex. PW-7/A, preparation of Rukka Ex. PW-7/A and has deposed that the same has handed over to Ct. Ravi for registration of FIR. 3(h). PW-8 W/ASI Jamna Devi has proved the recording of DD No. 25 Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 6 of 16 which is Ex. PW-7/A. 3(i). PW-9 Sh. Laik Ram has deposed that on 25.08.2006 he was on patrolling duty with PW-2 and other staff and had reached at shop no. F- 16/113, where illegal encroachment was found to be done by accused Sumit. Further, accused started the scuffling and beating of PW-2 upon being asked to remove the encroachment. It is further deposed that accused later on came to the MCD office and gave beating to PW-2 due to which he sustained injuries.
PW-9 was not cross-examined by the accused.
3(j). PW-10 SI Ishwar Singh has deposed that on 25.08.2006, after the registration of FIR the present case was marked to him. PW-10 has deposed regarding the preparation of site plan, which is Ex. PW-10/A, arrest of the accused vide memo Ex. PW-2/B and has deposed regarding obtaining the requisite complaint U/s 195 CrPC from the competent authority.
In his cross-examination PW-10 has submitted that he had asked the passer byes to join the investigation, however, none has joined the investigation.
3(k). PW-11 Dr. Sumit Kumar has proved the MLC, which is Ex. PW-11/A. Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 7 of 16
4. STATEMENT OF ACCUSED:
In order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that he is innocent and has been falsely implicated in the present case. The accused has further lead defence evidence.
5. DEFENCE EVIDENCE:
5(a). DW-1/Accused while deposing as defence witness has submitted that on 25.08.2006 at 10:00 am Sh. Surender Chikkara had visited F-16/113 and had demanded money from him and upon failure of accused to give the said money Sh. Surender Chikkara had removed all the articles from his shop.
At this juncture, it would be pertained to record that despite the multiple opportunities having been granted to the accused, neither the defence witness could be examined nor the prosecution got an opportunity to cross-examine the said witness.
6. APPLICABLE LEGAL PROVISIONS:
6(a). Section 186 IPC prescribes punishment for causing obstruction to any public person in discharge of his public functions and the punishment prescribed is imprisonment up to three months or fine which may extend Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 8 of 16 to Rs.500/- or both.
6(b). Section 332 IPC prescribes punishment for voluntarily causing hurt to deter a public servant from his duty. The essential ingredients to constitute an offence under this Section are: -
1. Voluntarily causing hurt to any person being a public servant in discharge of his duty as such public servant.
2. There should be an intention to prevent that person or any other public servant from discharging his duty.
6(c). Section 353 IPC prescribes punishment for voluntarily causing assault or criminal force to deter a public servant from discharging of his duty. The essential ingredients to constitute an offence under this Section are: -
1. Voluntarily causing assault or criminal force to any person being a public servant in discharge of his duty as such public servant.
2. There should be an intention to prevent that person or any other public servant from discharging his duty.
3. Or in consequences of anything done or admitted to be done by that person in lawful discharge of his duty as such public servant.
7. This being the factual, evidentiary and the legal position of the present case, let us analyse whether the prosecution has been able to successfully prove the guilt of the accused persons on the touchstone of "beyond reasonable doubt".
Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 9 of 167(a). Allegation qua offence u/s. 186 IPC:
Perusal of the documents attached with the charge-sheet reflects that IO has filed the complaint made by PW-4 to SHO as "complaint u/s.195 CrPC". A bare perusal of the said complaint reflects that the concerned public servant of MCD has made the complaint regarding the alleged incident to the SHO concerned. Thus, the uncontroverted factum which arises from the record is that no complaint has been made to the magistrate for the purposes of s. 195(1)(a) CrPC.
At this juncture, it would be expedient to discuss the law pertinent to the present issue. S. 195(1)(a)CrPC mandates as a prerequisite for taking cognizance, that for the offence enumerated therein the complaint has to be made by the public servant in writing. The word "complaint" would formulate its ambit and scope from s. 2(d) of the CrPC, which specifies that the same means "any allegation made orally or in writing to a Magistrate". It is clear from this discussion that the requisite complaint was required to be made to the magistrate and the complaint made to SHO would not satisfy the mandate of S. 195(1)(a) CrPC.
The effect of non-compliance has been elaborately dealt by the Hon'ble apex court in the case of Saloni Arora v. State (NCT of Delhi): (2017) 3 SCC 286, wherein it was held that noncompliance of S. 195(1)(a) CrPC would render the trial void ab intio.
This being the factual and legal position the accused per- son stands acquitted qua offence u/s. 186 IPC.
Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 10 of 167(b). Allegation qua offence u/s. 332 and s. 353 IPC:
It would be pertinent to mention that the want of requisite complaint u/s.195 CrPC would not have any bearing upon the trial of the accused u/s. 332 and 353 IPC. The issue in this regard has been categorically settled by the Hon'ble Supreme Court in the case of Durgacharan Naik And Ors vs State Of Orissa, (See:1966 AIR 1775), wherein it was held: -
"It is true that most of the allegations in this case upon which the charge under section Section 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that section 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is State v. Harphool Singh etc. U/s 186/353/332/34 IPC FIR No. 412/98 PS Paschim Vihar 16/23 not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well- established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."
The upshot of the above discussion, is that there is no embargo to the trial of the accused u/s.353/332 IPC in the absence of complaint to the magistrate.
8. Now, it would be expedient to analyze whether the prosecution has been able to establish the ingredients of the offences with which accused has been charged.
Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 11 of 168(a). Testimony of the eye witness:
PW-2, deposed as the sterling witness for the prosecution. deposed that on the date of the incident when the complainant had returned to his office, accused came with his stick in his hand and had hit the complainant with the stick 3-4 times. It has further appeared in the cross-examination of PW-2, that at the time of incident he was doing official work and was preparing bill for one Mr. Sh. Satbir Goyal.
It appears from the cross-examination of PW-2, that the defence has relied heavily upon the factum of demolition being legal/illegal and the conduct of the victim preceding the alleged act of the accused. The said act, may at best, ascribe the motive or falsify the motive behind the commission of the act, but would not in itself impinge upon the main act which lead to the registration of the FIR.
The testimony of this witness has remained consistent and the defence has not been able to shake the veracity of his statement or to impeach his credibility.
PW-3, is stated to be the other eye witness to the alleged incident. It was deposed by PW-3 that while PW-2 was preparing the bills one person came inside the office and started abusing in filthy language against PW-2. PW-2 had further deposed that the said person used one wooden stick with which he started beating PW-2 on his head and PW-2 tried to protect himself using his hand.
PW-3 has failed to identify the accused and has resiled from Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 12 of 16 his previous statement, qua the identification of the accused. It was deposed upon the cross-examination by Ld. APP, that he is unable to identify the accused as more than 10 years have elapsed since the commission of the offence. Thus, the witness had turned hostile qua the aspect of identification of the accused. In order to understand the relevancy of the testimony of a hostile witness it would be expedient to refer to the decision of the Hon'ble apex court in the case of Attar Singh vs. State of Maharashtra (See: 2013 (11) SCC 719) as under:
"14. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on the appellant is based. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the appellant-accused. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross- examination, there is no ground to reject his testimony in toto as it is well settled by a catena of decisions that the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this Court in Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59], whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety.
16. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 13 of 16
Thus, the upshot of the above discussion is that the testimony of a hostile witness could be relied upon for basing conviction if the same is corroborated by other evidence. In the present case the deposition made by PW-3 corroborates in material aspect as to the commission of the alleged offence. It can be safely concluded from the deposition of PW-3 that on the date of the alleged incident a person had entered the place of incident and had beaten the victim, while he was carrying out his official work. It is pertinent to record that the defence has not cross-examined the witness on this aspect and thus the testimony of PW-3 to this extent is unrebutted. The alleged act was carried out by the accused/identity of the accused can be said to be 'proved' considering the material corroboration of the deposition of PW-2, PW-6 and PW-9.
8(b). Other circumstantial evidence:
• PW-9 has deposed that accused started the scuffling and beating of PW-2 upon being asked to remove the encroachment. It is further deposed that accused later on came to the MCD office and gave beating to PW-2 due to which he sustained injuries. It would be pertinent to record that the defence failed to conduct the cross- examination of the witness despite the opportunity granted. Thus, the deposition of PW-9 stands unrebutted.
• PW-6 resiled from his previous statement that he had witnessed the alleged incident and it is submitted in his cross-examination that he Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 14 of 16 had only heard about the said incident from someone else. PW-6 has deposed that after returning from the site while PW-5 was drinking tea outside the MCD office, he saw accused running outside the MCD office with a danda in his hand. PW-5 has correctly identified the accused. The deposition of PW-6 corroborates the version of PW-2 and PW-3, as far as the presence of the accused at the place of incident is concerned.
• PW-11 has proved the MLC of the victim as per which the nature of the injury inflicted upon the victim is "simple" in nature. 8(c). Defence evidence:
Accused while deposing as DW-1 has stated that the victim had asked for some money from him and upon failure to pay the same, he had taken certain articles from his shop. Despite the multiple opportunities granted to the accused, defence failed to bring forth the accused for cross-examination. It is a settled principle of law that where the prosecution did not get the opportunity to cross-examine the witness, the weightage attached to such deposition shall be very feeble.
9. CONCLUSION:
It has been proved that the accused person has used criminal force and obstructed the public servant/PW-1, while he was discharging Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 15 of 16 his public duties and also caused injury, and has thereby committed offence u/s.332/353 IPC.
Thus, the unequivocal conclusion that comes forth is that the prosecution has succeeded in establishing beyond any reasonable doubt of the culpability u/s.332/353 of the IPC. Accordingly, accused Sumit Kumar stands convicted of the offence culpability u/s 332/353 of the IPC and is acquitted of the offence u/s 186 IPC.
Copy of this judgment be given dasti to the parties. Digitally signed
Announced in open court by KAUTUK
KAUTUK Date:
2022.10.13
on 12.10.2022 17:04:21 +0530
(KAUTUK)
MM-04 (North) Rohini Courts
Delhi/12.10.2022
Certified that this judgment contains 16 pages and each page bears my signature.
(KAUTUK) MM-04 (North) Rohini Courts Delhi/12.10.2022 Cr. Case 5287511/2016 STATE Vs. SUMIT KUMAR FIR No. 691 /2006 Page 16 of 16