Delhi District Court
Fir No. 94/2010 State vs . Chandervir Singh Etc Page No.1 Of 31 on 21 December, 2018
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS)
KARKARDOOMA COURTS, DELHI
Case No. 795/2016
FIR No.94/2010
U/s 186/353/332/333/427/34 IPC
PS Gandhi Nagar
State
Versus
(1) Chandervir Singh s/o Sh Badan Singh
(2) Hamender Singh s/o Sh. Chandervir Singh
Both R/o
4057, Gali No.16, Shanti Mohalla
Main Market Gandhi Nagar
Delhi
(3) Parmeshwar s/o Chandervir Singh
(4) Yateshwar @ Naresh s/o Chandervir Singh
(5) Ramwati w/o Chandervir Singh
(6) Kumari Chanchal D/o Chandervir Singh
(7) Kumari Nandini D/o Chandervir Singh
Sr.No.3 to 7 are residents of:
9/5171, Old Seelampur
Gandhi Nagar, Delhi
........... Accused
Date of Institution: 08.06.2011
Reserved for Judgment on : 03.12.2018
Judgment pronounced on: 21.12.2018
JUDGMENT
The facts of the prosecution case in brief are that on FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.1 of 31 22.04.2010 at about 12.30 p.m, SI Arvind Kumar alongwith Ct. Kuldeep had come to H.No. 4057 Gali no.16, Main Market, Shanti Mohalla, Gandhi Nagar, Delhi in connection with an inquiry on the complaint of one Devender Jain. When an enquiry about the complaint was made, accused Parmeshwar @ Polti who met them at the gate of the house, called his brothers, father and other family members. Accused Parmeshwar alongwith his family members, whose name came to be known later on as Yateshwar@ Naresh, Hemender Singh @ Hemu, Chanderbir, Ramwati, Chanchal and Nandini started abusing them. ASI Arvind tried to make them understand but they all started manhandling with him. It is further the case of the prosecution that accused Parmeshwar forcibly pushed ASI Arvind Kumar and also gave fist blow on his chest due to which ASI Arvind fell down. Remaining accused manhandled with Ct. Kuldeep. There was huge crowed gathered on the road. It is further the case of the prosecution that accused Yateshwar tore the uniform of ASI Arvind and his name plate was broken which fell down. When ASI Arvind got up, accused Hemender @ Hemu again pushed him and made him fallen on the ground. Other family members including ladies and Chanderbir rebuked them and manhandled them. ASI Arvind sought help of public persons and one Manoj Jain, Neeraj Jain, Chiraj Jain, Sanjay Kumar etc. came for the help of police officials but they were also rebuked and pushed by the accused persons. It is further the case of the prosecution that ASI Arvind took the mobile of someone and FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.2 of 31 informed at PS. On receipt of the information, ASI SP Singh alongwith staff reached at the spot. Finding a chance, accused Parmeshwar @ Polti and Yateshwar @ Naresh ran away from the spot. However, Chanderbir and Hemender @ Hemu were apprehended at the spot with the help of police staff. It is further the case of the prosecution that accused Hemender @ Hemu broken the glasses of government gypsy by giving danda blow on it. Both the accused were apprehended at the spot. Public persons were also in anger and thus, manhandling took place there due to which both the accused had suffered invisible injuries and abrasions by falling at the spot. Public persons also manhandled with the accused and beaten them. ASI SP Singh recorded the statement of ASI Arvind. All the accused persons have deterred the police officials from performing their official duties, used criminal force against them,caused injuries and also broken the government vehicle. On the statement of ASI Arvind, present case was registered. Site plan was prepared at the instance of ASI Arvind. Shirt alongwith broken name plate, govt.vehicle and danda were seized. Accused Chanderbir and Hemender @ Hemu were arrested. Seized articles were deposited in the malkhana. Both the accused were produced before the Court and remanded to JC. Further investigation was conducted by ASI Pritam Singh, who deposited the MLC for opinion. Remaining accused were granted anticipatory bail by the court and they were formally arrested and released on bail. Doctor has opined the nature of injury as grievous and section 333 IPC was FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.3 of 31 added. After completion of the investigation, chargesheet was filed before the Court for trial.
2. After compliance of section 207 Cr.P.C, charge u/s 186/332/333/353/427/34 IPC was framed against all the accused persons on 14.03.2012 to which all the accused pleaded not guilty and claimed trail. Hence, the case was fixed for prosecution evidence.
3. In order to prove its case, prosecution has examined as many as 19 witnesses. PW1 is HC S.S.Khade. He is the FIR recorder. He recorded the FIR Ex.PW1/B, endorsement on rukka is Ex.PW1/A. He also recorded DD no.17A Ex.PW1/C.
4. PW2 is Dr. Rajiv Gupta. On 22.04.2010, he examined the Xray plate of complainant ASI Arvind Kumar and opined that advanced degenerative changes seen with old healed lesions of 3rd and 5th metacarpal bones. Dislocation of inferior radio ulna joint seen but no fresh fracture seen. Xray plate and report are Ex.PW2/A and Ex.PW2/B.
5. PW3 is ASI Arvind and PW4 is Ct. Kuldeep. PW3 is the complainant and injured of this case and PW4 was with him at the time of incident. Both the witnesses have deposed more or less the same as stated in para '1' of the Judgment and the same is not FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.4 of 31 being repeated for the sake of brevity.
6. PW5 is Sanjay Kumar. He has stated that he does not know between whom the quarrel had taken place, however, he had seen police officials taking away accused Chanderbir and his son. Police did not enquire him nor recorded his statement. This witness was again examined as PW9 wherein he had stated that by the time he reached at the spot, the quarrel had already finished. He was declared hostile by the prosecution and cross examined by Ld. Addl.PP but he denied each and every suggestion put to him.
7. PW6 is Dr. A.K.Kulshetra. On 03.05.2010, he examined the MLC, Xray reported by Dr. Rajeev Gupta of injured ASI Arvind and on the basis of same he found dislocation of inferior radioulnar joint. No fresh fracture was seen. He opined the nature of injury as grievous. He comments are Ex.PW6/A.
8. PW7 is ASI Yashpal. He accompanied ASI SP Singh and other staff to the spot on receipt of DD no.17A in gypsy no. DL 1CG 6405 where ASI Arvind and Ct. Kuldeep met who were surrounded by the public persons/crowd namely Parmeshwar, Yateshwar, Hemender, Chanderbir, Ramwati and two young girls Chanchal and Nandini who were rebuking them. They tried to pacify the matter but they all started scuffling with ASI Arvind, Ct. Kuldeep and with them also. He deposed that accused Hemender FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.5 of 31 damaged the right side and backside glass of gypsy. He deposed that they requested the accused persons not to scuffle and go to PS if they had any problem and the public persons gathered at the spot also helped the police party. Accused Chanderbir and Hemender were apprehended at the spot and rest of the accused had run away. Both the apprehended accused were made to sit in the Government Gypsy. Statement of ASI Arvind was recorded by ASI SP Singh, rukka was prepared and it was given to Ct. Vinod for the registration of the case. The wooden danda was taken from accused and the same was taken into possession vide memo Ex.PW3/D. The torn shirt of ASI Arvind was converted into pullanda and sealed with the seal of SPS and seized vide memo Ex.PW3/B. Damaged gypsy was also taken into possession. Seizure memo Ex.PW3/C. The shirt is Ex.P1 and danda is Ex.P2.
9. PW8 is Retired SI S.P.Singh. PW7 accompanied him to the spot. PW8 has also deposed more or less on the lines of PW7 and thus, the same is not repeated here for the sake of brevity. He proved the endorsement Ex.PW8/A made by him on the rukka.
10. PW10 is Neeraj Jain. PW11 is Virag Jain. PW12 is Devender Kumar Jain. PW13 is Manoj Jain. They are the public witness. None of them have supported the case of the prosecution. They were declared hostile by the prosecution and cross examined by Ld. Addl.PP but nothing fruitful could be extracted during the FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.6 of 31 cross examination of these witnesses.
11. PW14 is SI Pritam Singh. Further investigation of the case was entrusted to him. He arrested accused Parmeshwar and Yateshwar vide memo Ex.PW14/A and Ex.PW14/B and conducted their personal search vide memo Ex.PW14/A1 and Ex.PW14/B1. On 02.06.2010, he formally arrested accused Ramwati, Chanchal and Nandini vide memo Ex.PW14/C, Ex.PW14/D and Ex.PW14/E and released them on bail. On 26.05.2010, he collected the MLC of injured ASI Arvind and placed the same on file.
12. PW15 is ASI Sudesh Kumar. He deposed that he reached at the spot with ASI SP Singh alongwith his team where ASI Arvind and Ct. Kuldeep were found gheored by the accused persons. He deposed that when police party tried to apprehend accused Hemu, he had taken out a wooden danda and started damaging the government vehicle and rear and driver side mirror were damaged. Accused Hemu and Chanderbir were apprehended at the spot. Danda was seized vide seizure memo Ex.PW3/D, uniform was seized vide memo Ex.PW3/B and gypsy was also seized vide memo Ex.PW3/C.
13. PW16 is Dr. Pankaj Kumar Nagar. He deposed that MLC no.854/10 of ASI Arvind and MLC no. 855/10 of Ct. Kuldeep were prepared by the doctor which are Ex.PW6/A and Ex.PW16/A. FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.7 of 31 PW17 is Mannu Gautam. He produced the record of MLC no.854 and 855/10.
14. PW18 is ASI Rajesh Kumar. He is the then MHCM. He made entry no.2031 Ex.PW18/A regarding deposit of case property in the malkhana.
15. PW19 is Sh Romil Baniya, the then ACP. He accorded sanction u/s 195 Cr.P.C which is Ex.PW19/A.
16. Statements of accused persons u/s 313 Cr.P.C were recorded wherein accused persons have stated that they are innocent. They have been falsely implicated in this case. Accused Chandervir has stated that on 22.04.2010, the police officials have forcibly entered in his house and caused injuries to him and his son Harmender and thereafter, they had forcibly taken them to the PS Gandhi Nagar and in the PS ASI Arvind, Ct. Kuldeep and other police officials had mercilessly beaten him and his son Hemender and caused injuries to them and thereafter, the police officials had produced them before the doctor and doctor has got prepared their MLCs. He, his sons and other family members had not committed any offence against ASI Arvind and Ct. Kuldeep and other police officials neither caused any injury to them nor torn the uniform of ASI Arvind. His son had not damaged the government gypsy as FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.8 of 31 alleged. The allegations levelled by ASI Arvind and Ct. Kuldeep are concocted, false and vague because they had caused the injuries to them and they had created a false story about the beatings etc. The doctors and staff of the hospital had manipulated the Medical record of ASI Arvind and Ct. Kuldeep at the instance of ASI Arvind. ASI Arvind had an old injury in his hand. IO SI SP Singh had also prepared all false documents in the PS, in this case at the instance of ASI Arvind and he had obtained their signatures on many papers in the PS and subsequently he had written the same as a part of file. ASI Arvind & other police officials of PS Gandhi Nagar had falsely involved him and his family members in this case. Other accused have also similarly stated in their statements. Accused persons have opted to lead the defence evidence in this case and examined two witnesses u/s 315 Cr.P.C.
17. DW1 is Chandervir. He is accused. He deposed that on 22.04.2010, some construction work was going on at his house. At about 11.30 a.m., he alongwith his son Hemender were present at the said house. ASI Arvind alongwith 23 police officials came in civil dress there and asked his name and name of his son and thereafter, asked them to go to police station and when they objected for the same, then ASI Arvind alongwith all the said police officials started beating him and his son Hemender by giving fists and leg blows. Thereafter, they forcibly brought him and his son to PS Gandhi Nagar and there also they had beaten them. ASI Arvind FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.9 of 31 alongwith the said police officials also forced him and his son Hemender to sign on some blank papers and at about 8.00 p.m., they both were got medically examined at SDN Hospital. Their MLCs were also got manipulated by the said police officials through the doctors concerned and in their MLCs minor injuries were shown in connivance with the police officials by the doctors concerned whereas they both were seriously injured with the beatings caused by the said police officials. He and his son Hemender did not misbehave in any manner with the said police officials nor caused them any injury and they did not tear the uniform of the said police official nor had broken the name plate nor damaged their officials vehicle.
18. DW2 is Hemender Singh. He has deposed as per the version of DW1 regarding the incident.
19. Arguments have been heard from the Ld. Addl. PP as also from the Ld.Counsel for accused persons. Ld. Addl.PP has argued that both the police witnesses who went for enquiry of complaint have deposed on the lines of prosecution story and have corroborated to each other. It is also stated that the police officials who reached at the spot after receipt of information at the PS have also deposed as per the case of the prosecution and corroborated ASI Arvind and Ct. Kuldeep. It is stated that the defence could not impeach testimonies of said witnesses during cross examination and FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.10 of 31 therefore, prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. Ld. Additional PP also referred to the relevant portions of the testimonies of police witnesses who went for enquiry of complaint and who reached later on receipt of information about quarrel in order to buttress the aforesaid submissions made by him before the Court. He submitted that the prosecution has been successful in proving its case against the accused persons.
20. Ld. Counsels for accused persons submits that the case of the prosecution is doubtful. It is stated that the the person whose complaint was to be investigation by ASI Arvind has clearly stated that he had made no complaint and thus, there was no occasion for ASI Arvind to visit the spot. He referred to DD no.17A and submitted that the said DD does not find mention about the injuries sustained by ASI Arvind. He further argued the the MLC of ASI Arvind was prepared after about 10 hours. Thus, there is consideration delay in medical examination of injured. ASI Arvind also did not name the accused persons in the alleged history. Police gypsy has not been mechanically inspected and that complaint u/s 195 Cr.P.C was given after about 10 months of incident. None of the police officials have stated that they were obstructed by the accused while performing their officials duties. No DD entry has been proved for the departure of the police officials. Ld. Counsels has drawn the attention of the Court on the testimony of each FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.11 of 31 witness and submitted that the case of the prosecution is full of contradiction and thus, request has been made that the accused persons may kindly be acquitted in this case. Ld. Counsel has relied upon the case law State Vs. Dheeraj @ Sonu, Crl. A 865/16, State Vs. Sunil Kumar @ Sagar @ Rahul & Anr Petition no.8/13, Sachin Kumar & Anr. Vs State Crl.Petition No.149/15, State of Maharashtra Vs. Sayyed Umar Sayed Abbas & Ors.2016 Vol.2 JCC 1423 Supreme Court of India, Jagir Singh Vs. State 1975, S.C.C (Cri) 129, Devender Vs. State of Haryana AIR 1997 SC 454 and Shivaji Dayanu Patil Vs. State of Maharashtra AIR 1989 SC 1762.
21. In the present case, PW3 ASI Arvind and PW4 Ct. Kuldeep allegedly reached at the spot in connection with an enquiry on complaint made by one Devender Jain. PW7 ASI Yashpal, PW8 SI S.P.Singh and PW15 ASI Sudesh Kumar reached at the spot on receipt of information from ASI Arvind. The prosecution has also examined public witnesses i.e. PW5(again examined as PW9) Sanjay, PW10 Neeraj Jain, PW11 Virag Jain, PW12 Devender Kumar Jain and PW13 Manoj Jain. Firstly, the testimonies of these public witnesses have been perused. Perusal of their statements revealed that all these witnesses have not supported the case of prosecution from any angle. They were declared hostile by the prosecution and cross examined by the Ld. Addl.PP but nothing FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.12 of 31 fruitful could be extracted against the accused persons. No evidence has come on record against the accused persons from the testimonies of public witnesses. Thus, from the testimonies of these witnesses, it can be inferred that no incident of any kind had taken place at the spot.
22. As per the case of the prosecution, PW3 ASI Arvind Kumar alongwith PW4 Ct. Kuldeep had gone to the spot in connection with an inquiry on the complaint of one Devender Jain. The prosecution has examined said Devender Jain as PW12 in this case. He deposed that he has been running a cloth shop for last about 25 years and that on 22.04.2010 at about 10.30 a.m., some hot discussions took place between him and accused Chanderbir on the issue of scooter/motorcycle parking in front of his shop. He went to PS Gandhi Nagar and matter was pacified between him and Chanderbir. The police had taken his signatures on some blank papers in the PS and thereafter, he came back to his home. Later, he came to know that some quarrel had taken place in front of his shop between some persons. He knows all the accused being his neighbourers. He was declared hostile and cross examined by the Ld. Addl.PP wherein he denied that he gave a complaint to SHO on 22.04.2010 stating that for the last about many days, accused Chanderbir, his sons who have shop infront of his shop were regularly threatening him after coming to his shop and that on 21.04.2010, they threatened him to give Rs.10,000/ p.m if he FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.13 of 31 wanted to continue his cloth business and if he does not pay the said amount, they would kill his son within three days and when the public persons tried to pacify, they also threatened them with dire consequences. PW12 has denied each and every suggestion put to him by the Ld. Addl. PP during cross examination. He also stated that police never recorded his statement nor he gave any statement to the police on 16.02.2011 regarding the incident. He denied the suggestion that on 22.04.2010 at about 12.15 p.m, he was present at the spot and that ASI Arvind and Ct. Kuldeep had come there in the enquiry of his complaint and then all the accused persons had assaulted them and tore their uniform and broken their name plate. The alleged complaint made by Devender Jain (PW12) is Ex.PW3/I. However, complainant (PW12) has denied having made such complaint before the Police. Though, he admitted having gone to PS Gandhi Nagar regarding dispute about parking of scooter/motorcycle, however, he has stated that the matter was pacified between him and accused Chanderbir. He stated that his signatures were obtained by the police on some blank papers. Perusal of alleged complaint Ex.PW3/I revealed that it was received at the PS on 22.04.2010 at about 12.15 p.m. It was received by duty officer who must have put up before SHO. SHO had then marked the same to ASI Arvind. This process must have taken some time and said complaint must have reached the SHO after 12.30 p.m. However, during cross examination Ld. Addl.PP has put a suggestion to PW12 which he answered "it is wrong to suggest that FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.14 of 31 on 22.04.2010 at about 12.15 p.m., he was present at the spot and that ASI Arvind and Ct. Kuldeep had come there in the enquiry of his complaint and then all the accused persons had assaulted them and torn their uniform and broken their number plate. As per this suggestion, PW12 was present at the spot at 12.15 p.m. However,as per the complaint received in PS, at 12.15 p.m, the complainant made the said complaint. Thus, he could not have been available at both the places at the same time. Further, PW3 SI Arvind Kumar reached at the spot at about 12.30 p.m alongwith PW4 Ct. Kuldeep. The complaint was received in the PS by Duty Officer at about 12.15 p.m and then it was placed before SHO who marked the same to PW3. Considering the time taken for this process, it was impossible for the PW3 to reach at the spot at about 12.30 p.m. The said complaint was made at 12.15 p.m. There was nothing very serious mentioned in the complaint but the police official reached at the spot within 15 minutes. Be that as it may, PW3 has admitted in cross examination that he had gone through the contents of complaint. He admitted that cognizable offence was made out from the complaint of Devender Jain. He admitted that he did not lodge any FIR on the said complaint. As per PW3, to whom the complaint Ex.PW3/I was marked has neither registered any FIR nor investigated the said complaint further though, the offence was a cognizable one which creates doubt about the said complaint. In view of the above discussions, this Court is of the view that prosecution has failed to prove that PW3 SI Arvind Kumar FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.15 of 31 alongwith PW4 Ct. Kuldeep had gone to the spot for enquiry of the complaint in question at the alleged time.
23. As per prosecution case, PW3 SI Arvind and PW4 Ct. Kuldeep had reached the spot. Neither PW3 nor PW4 have mentioned the DD number by which they left the PS. In cross examination, PW4 has stated that departure entry was made at about 12.30 p.m and arrival entry was made at about 9 p.m. Perusal of record reveals that prosecution has not placed on record any Departure Entry for leaving of PW3 & PW4 to the spot. The witness should have produced the relevant records showing their arrival and departure and should have proved by documentary evidence that they were in the investigation of some case by producing DD entry for the same as per Chapter 22 Rule 49 of the Punjab Police Rules which are reproduced as under: "Chapter 22 Rule 9 Matters to be entered in Register No. II. The following matters shall amongst others, be entered: (c ) the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.16 of 31 seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
24. Neither PW3 nor PW4 has deposed as to by what entry in register No. II, they left the PS for investigation in the particular area. The relevant entries regarding the arrival and departure of PW3 and PW4 have not been proved on the record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that:
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
25. In the present case, neither PW3 nor PW4 have stated FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.17 of 31 the DD number by which they left the PS. In cross examination, PW4 has stated that departure entry was made at about 12.30 p.m and arrival entry was made at about 9 p.m. Even if it is believed that DD entry was made at 12.30 p.m., it was impossible for PW3 & PW4 to reach at the spot at 12.30 p.m.itself. Thus, the material on record is contradictory. The prosecution has failed to produce any entry on record and non production of entries creates a reasonable doubt in the prosecution version.
26. PW3 & PW4 reached at the spot and from there PW3 got lodged DD no.17A Ex.PW1/C. The contents of said DD is as under: "Samay 1300 hrs per darj hai ki ASI Arvind Kumar ne bajriye telephone itlah di hai ki mai braye daryaphat shikayat Shri Devender Jain main road, Shanti Mohalla, Gandhi Nagar ki daryafat ke liye Jain Market,Main Road, Shanti Mohalla, Gandhi Nagar aya tha, jahan per Chandervir va uske ladke Parmeshwar, Hemu and Naresh ne mere saath durvyabhar va sarkari duty mai badha pahuchai hai. Mauka per aur force bheji jave tatha halaat SHO sahab ke notice mai dale jaye, hasab amad itlah darj rojnamcha ki gai. Halat Janabh SHO sahab ko batlaye gaye jinhone mauka per aur force bhejne ka aadesh diya. Jo ASI SP Singh mai FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.18 of 31 sarkari gadi gypsy mai driver Ct. Ravinder, HC Yashpal, Ct. Vinod, Ct. Surender, HC Sudesh and Ct. Sonu mauka ravaana kiya gaya, wakalam HC DO".
27. As per the case of the prosecution, ASI Arvind and Ct. Kuldeep (PW3&4) were deterred to perform the official duties and they were also assaulted and caused injuries. PW4 Ct Kuldeep admitted in cross examination that by the time ASI Arvind made call to the duty officer, the incident was over. Thus, the call was made by PW3 ASI Arvind after the incident. His version has been recorded in DD no.17A. Perusal of the contents of DD reveals that he has nowhere reported that he and PW4 were assaulted and caused injuries. He only reported that Chandervir and his sons namely Parmeshwar, Hemu and Naresh had misbehaved with him and deterred him in the performance of official duties. He did not name the ladies accused in this case. As per the version of PW3, above accused persons had only misbehaved with him. He did not report that they were also assaulted and caused injuries by the accused persons. He also did not explain in the DD as to how the accused persons had deterred him in the performance of official duties. Further, the DD is not only with regard to the information supplied by PW3 but it also finds mention about leaving of other police officials to the spot. The said DD does not find mention that PW3 and PW4 were assaulted and caused injuries.
FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.19 of 31
28. In his statement recorded by ASI SP Singh, PW3 SI Arvind has stated that on his information ASI SP Singh alongwith staff came at the spot and then Parmeshwar @ Polti and Yateshwar @ Naresh ran away from the spot. However, PW7 ASI Yashpal has stated before the court that he alongwith staff reached at the spot and saw that ASI Arvind and Ct. Kuldeep were surrounded by the public persons/crowd namely, Parmeshwar, Yateshwar, Hemender, Chanderbir, Ramwati, Chanchal, Nandini and they were rebuking them and when they tried to pacify the matter, they all started scuffling with ASI Arvind, Ct. Kuldeep and with them also. Considering the statement of PW7 accused Parmeshwar @ Polti and Yateshwar @ Naresh were present at the spot when PW7 alongwith staff reached there however, rukka finds mention that they had already run away from there.
29. PW3 had gone for the investigation of complaint at H.No. 4057 Gali no.6 Main Market Shanti Mohalla Gandhi Nagar. The complainant has not disclosed the house number of the accused persons in his complaint. The complainant is resident of H.NO.X/3470 Shanti Mohalla and he was also running his shop from the said address. Site plan remained unexhibited in this case. Thus, site plan of the place of incident could not be proved by the prosecution. Though, site plan remained unexhibited, however, perusal of the same reveals that there is some distance between the FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.20 of 31 house of complainant and accused persons. Since no number of the accused persons has been mentioned in the complaint, PW3 and PW4 firstly must have gone to the house of complainant and then to the house of accused persons alongwith complainant. But complainant has not stated that any untoward incident had taken place at the spot. In the site plan also point 'A' is shown where man handling took place with ASI Arvind and at point 'B' glasses of government vehicle have been damaged. No point has been shown where the police officials were assaulted, caused injuries and obstructed in performance of their duties. Thus, it seems that no such offence had been committed.
30. PW8 Retired SI SP Singh stated that he had taken into possession the damaged gypsy bearing no. DL 1CG 6405 vide seizure memo Ex.PW3/C. As per the case of the prosecution, gypsy was allegedly damaged at the spot and it was also seized by PW8. Perusal of the statement of all the witnesses revealed that the said gypsy has not been produced before the Court.
31. In the present case, uniform (Shirt), gypsy and danda were seized vide memo Ex.PW3/B, Ex.PW3/C and Ex.PW3/D respectively. PW4 HC Kuldeep stated that his statement was recorded at about 2.00 p.m by ASI SP Singh at the spot. Statement of ASI Arvind was also recorded at that time. He further deposed that when he made statement to ASI SP Singh, he had signed all the FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.21 of 31 memos prior to his statement. ASI Arvind had also signed all the memos prior to recording of his statement. PW3 stated that recovery memo of his uniform shirt was prepared at the spot at about 2.00/3.00 p.m prior to registration of the FIR. No addition or subtraction was made in the recovery memo after his signature. He also admitted that no public witness was made in the seizure memos. Evidence on record shows that the seizure memos were prepared prior to registration of the FIR in this case. Perusal of seizure memos Ex.PW3/B, Ex.PW3/C and Ex.PW3/D revealed that these bears the FIR number. As per PW3, no addition or subtraction was made after preparation of the said seizure memos. The FIR was registered after preparation of seizure memos. Thus, it is not understood as to how FIR number bears on the said seizure memos. Further, the public persons were admittedly present at the spot. As per the case of the prosecution, they had even helped the police officials there. But the said seizure memos have not been witnessed by any of the public person. Thus, there seems to be some manipulation in this respect and it seems that the documents were prepared while sitting in the PS.
32. I have perused the arrest memos of the accused persons namely Chandervir Ex.PW3/F and Hemender Ex.PW3/E. Perusal of the same revealed that the same have been filled by different persons. Both the arrest memos shows that column no.3,4 and 7 have been filled up with a different pen. These arrest memos have FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.22 of 31 also not been witnessed by the public persons though available at the spot and who admittedly helped the police officials. It seems there the arrest memos were also not prepared at the spot. No explanation has been given as to why the arrest memo bears the writing with two pens and as to why the public witnesses have not witnessed the same, though available.
33. In the present case, charge has been framed u/s 186/353/332/333/427/34 IPC. It is needless to mention here that in order to bring home the charge in respect of offence U/s 186/34 IPC, the prosecution was required to prove the following ingredients:−
a). That the complainant and/or any other aggrieved person was/ were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
34. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court.
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35. In the present case, PW19 Sh Romil Baniya has given complaint u/s 195 Cr.P.C. The date of incident of present case is 22.04.2010. Perusal of complaint Ex.PW19/A reveals that the complaint was filed before the Court on 18.02.2011. Thus, there is delay of about 10 months in filing the complaint. There is no explanation from the prosecution as to why such a long time has been taken to file the complaint u/s 195 Cr.P.C. Though, the complainant is the public servant withing the meaning of section 21 IPC, however, prosecution has failed to prove that the complainant alongwith Ct.Kuldeep were performing the official duty at the spot as there is no reliable and cogent evidence in this respect being the complainant of that case not supported the case. PW3 ASI Arvind stated that he had gone to the spot in the investigation of complaint made by one Devender. PW12 Devender Kumar is the complainant of said complaint Ex.PW3/I and he has not supported the case of the prosecution in this respect. He denied having made any complaint before the police. Thus, there was no occasion for PW3 and PW4 to visit the spot. Further, as discussed in the preceding paragraph regarding time of receipt of alleged complaint in the PS and time of reaching of PW3 & PW4 at the spot creates doubt in the case of the prosecution.
36. Section 353 IPC contemplates - Assault or criminal FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.24 of 31 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 .......
37. Reverting back to the facts of the present case, PW3 and PW4 reached at the spot on receipt of complaint made by one Devender. However, PW12 Devender has not supported the case of the prosecution from any angle. Other Public witnesses i.e. PW9 Sanjay, PW10 Neeraj Jain, PW11 Virag Jain and PW13 Maoj Jain have also not supported the case of the prosecution. It is the case of the prosecution that these witnesses helped the police officials at the spot. But none supported the case of the prosecution. Their signatures does not bear on any document. They have not alleged that any criminal force was used against PW3 and PW4 or that they were assaulted at the spot. There is no cogent evidence available on record to show that any of the accused either assaulted or used criminal force to any of the public servants while they were discharging their duties as public servants or with intent to prevent or deter them from discharging their duty. Rather, it has come on record during cross examination of PW4 Ct. Kuldeep that he has no injury when reached in the hospital. He stated that he had seen injuries on both the accused at the PS. DD no.17A got recorded by PW3 ASI Arvind does not find mention that he or Ct. Kuldeep was assaulted by the accused persons. There is no cogent piece of FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.25 of 31 evidence on record showing that any of the accused had used any sort of criminal force against any of those police officials or had any intent to prevent them from discharging their duty. That being so, Court is in agreement with the contention raised on behalf of accused persons that prosecution has failed to establish their guilt in respect of offence punishable U/s 353/34 IPC.
38. Section 332/333 IPC contemplates voluntarily causing simple hurt and grievous hurt respectively to deter public servant from his duty - Whoever voluntarily causes simple/grivous hurt to any person being a public servant in the discharge of his duty as such public servant.......
39. In the present case, MLC Ex.PW16/A of Ct. Kuldeep shows that he had no external injury on his person. Even PW4 Ct. Kuldeep has also admitted in cross examination that he had no injury when reached in the hospital. Since there was no injury on the person of Ct. Kuldeep, as is revealed from the MLC, section 332 IPC is not made out in this case qua him. As far the injury to PW3 ASI Arvind is concerned, I have perused evidence on record. In cross examination, PW3 has admitted that he did not disclose in his DD Ex.PW1/C about receiving of injuries during the occurrence. He did not disclose about tearing of his uniform. He also did not disclose that accused Paremeshwar had pushed him and caused FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.26 of 31 injuries on his chest due to which he had fallen on the road. He also did not state that accused persons had committed dhaka mukki with Ct. Kuldeep. He further admitted in cross examination that he had not gone to the hospital from them spot. He admitted that he went to hospital at 9.30 p.m. PW8 SI SP Singh stated that he and Ct. Kuldeep returned to PS at about 9.30 p.m. He admitted that till that time ASI Arvind and Ct. Kuldeep were not sent for medical. In the present case, the alleged incident had taken place in between 12.30 to 1.00 p.m. PW8 received DD at about 1.05 p.m and thereafter he reached at the spot. PW3 and PW4 met him at the spot. It is in evidence that PW3 & PW4 went to the hospital after 9.30 p.m. Had they sustained any such grievous injury they should have been sent to the hospital immediately after PW8 and other police officials reached at the spot. There is no explanation as to why PW3 & PW4 were sent to the hospital after about nine hours of the incident, which creates doubt in the case of the prosecution. Further, PW15 ASI Sudesh Kumar has stated that they had reached at the spot at about 1.30 p.m. He did not notice any injury on the person of ASI Arvind at that time. MLC of ASI Arvind Kumar Mark 'A' and opinion regarding nature of injury shows that nature of injury has been opined as Grievous. Admittedly PW15 reached at the spot after the incident. However, PW15 has clearly stated that when he reached at the spot, he did not notice any injury on the person of ASI Arvind. This create doubt in the version of prosecution that ASI Arvind has been caused any injury at the spot. Further, as per MLC FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.27 of 31 Mark A, on local examination, pain and tenderness of left wrist, mild/minor scratches on right forearm has been mentioned. However, the nature of injury has been opined as grievous. PW6 Dr.AK Kulshetra has examined the Xray plate of PW3 ASI Rajeev and on the basis of same he found dislocation of inferior radioulnar joint. However no fresh fracture was seen. Thus, it is emphatically clear that no fresh fracture was sustained by PW3 ASI Arvind and it can be easily inferred that the injury sustained by PW3 was old one and this injury cannot be attributed to have sustained in the alleged present case incident. Thus, the medical evidence available on record cannot be safely vouched for when read together with the evidence of the public witnesses coupled with the fact that the police officials went for their medical examination after about 9 hours of the incident. Thus, under these circumstances the medical conditions of the aforesaid police officials reflected in the MLC is also highly doubtful and cannot be safely associated with the alleged incident. Thus, under these circumstances, neither section 333 IPC nor section 332 IPC is made out in this case.
40. Charge has also been framed u/s 427 IPC in this case for damaging the government vehicle no.DL 1CG 6405. It has been alleged that accused Hemender had broken the glasses of vehicle with a danda. PW8 SI SP Singh has admitted in cross examination that such like dandas are easily available in the market. He also sated that broken pieces of glasses of gypsy were not seized. PW7 FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.28 of 31 has also stated that broken pieces of glasses of gypsy were not seized. Admittedly,no mark of identification has been put on the danda. Broken pieces of glasses of gypsy has not been seized by the IO. Importantly, mechanical inspection of vehicle in question was not got done. Also the seized vehicle has not been produced before the Court at any time. Seizure memos of vehicle and danda have not been witnessed by any public person though available at the spot. Photographs of the vehicle, though available on record could not be proved by calling the photographer. Perusal of photograph of vehicle revealed that there is an extra tyre kept at the back of the vehicle and on the said tyre two half bricks are lying, one iron rod also seems to have been lying near the rear tyre of the vehicle. The said photographs suggests that the glasses of vehicle in question were not broken with alleged danda used by accused Hemender but with the said bricks and iron rod. Thus, prosecution could not prove that the government vehicle was damaged by the accused persons. Therefore, section 427/34 IPC is also not made out in this case against the accused.
41. In the present case, accused Chandervir and Hemender have also sustained injuries. PW8 SI SP Singh admitted that accused Chandervir and Hemender had injuries on their persons at the time of arrest. He got them examined in SDN Hospital. However, their MLCs have not been placed on record. There is no explanation as to why their MLCs have not been placed on record. It is the case of the FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.29 of 31 prosecution that accused Chandervir and Hemender were beaten by the public persons at the spot. However, the police did not take any action against the persons who beat them. PW7 ASI Yashpal Singh stated in cross examination that he did not notice any injury on the person of Hemender and Chandervir till he remained at the spot. PW8 who arrested the accused had seen injuries on their persons but PW7 who was with PW8 had stated that he did not see any injury. From the statement of PW7, it can be inferred that public persons had not beaten the accused persons at the spot and that they may have been beaten later on. There is no explanation in this case as to how the accused person had sustained injuries in this case.
42. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the FIR No. 94/2010 State Vs. Chandervir Singh etc Page No.30 of 31 conviction of an innocent".
43. In view of the aforesaid discussions, the case of the prosecution is highly doubtful. It is well settled law that benefit of doubt is always given to the accused. Therefore, all the accused persons are entitled to be given the benefit of doubt. Accordingly, benefit of doubt is given to accused Chandervir Singh, Hemender Singh, Parmesehwar Singh, Yateshwar @Naresh, Ramwati, Kumari Chanchal and Kumari Nandini and they are acquitted in this case for the commission of offence punishable u/s 186/353/332/333/427/34 IPC. However, they shall furnish a personal bond in the sum of Rs.20,000/ each with a surety of the like amount u/s 437A Cr.P.C.
File be consigned to record room after the requisite bonds are furnished.
Digitally signed by AJAYAnnounced in the open AJAY GUPTA
Location: Karkardooma
Court
court on 21.12.2018 GUPTA Date: 2018.12.21
17:05:48 +0530
(AJAY GUPTA)
Addl. Sessions Judge02(East)
Special Judge (NDPS)
KKD COURTS, DELHI.
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