Delhi District Court
Anil Rathi vs . State (Nct Of Delhi) In Crl. App. ... on 24 August, 2015
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 20/97
P.S. : Shalimar Bagh
Unique ID No. : 02401R0036241997
State
Vs.
Manju W/o Vishwanath
R/o Jhuggi no. 292, near Ayurvedic Hospital,
Village Haider Pur, Delhi.
Date of institution of case :
Date of reserving the judgment :20.08.2015
Date of pronouncement of judgment :24.08.2015
JUDGMENT
1. S. No. of the Case: 136/2/SB 2. Date of Commission of Offence: 08.01.1997 3. Date of institution of the case: 4. Name of the complainant: SI Narender Khatri. 5. Name of the accused: Manju 6. Offence complained or proved: 186/332/353 IPC 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 24.08.2015 FIR No. 20/97 PS Shalimar Bagh Page 1 of 12 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 08.01.1997 at about 1.00 p.m. at Gali No. 10, Village Shalimar Bagh, accused Manju voluntarily obstructed, assaulted and voluntarily caused hurt to SI Narender Khatri (complainant), a public servant in the discharge of his public duty. Accused was arrested and upon completion of investigation, challan was prepared u/s 353/186/332 IPC and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to the accused in due compliance of Section 207 Cr.P.C..
3. Prima facie case having been made out, charge for offence 353/186/332 IPC was framed against both the accused on 18.08.1998 to which she pleaded not guilty and claimed trial and the case was adjourned for recording of prosecution evidence.
4. In order to prove its case, the prosecution has examined the following witnesses:-
PW-1 SI Narender Khatri is the complainant in the present case. PW-2 Mohinder Singh is the eye witness of the present case and saw that accused surrounded her arm on SI Narender Khatri.
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PW-3 HC Azad Singh accompanied the IO during the investigation of the present case. He accompanied SI Narender Khatri to the hospital for his medical examination and MLC was handed over to the IO.
PW-4 SI Mahavir Prasad is the IO of the present case. Site Plan Ex. PW 4/B was prepared by him at the instance of SI Narender Khatri.
PW-5 ASI Rajbir was the duty officer who proved the FIR Ex. PW 5/A and endorsement on the rukka Ex. PW 5/B. PW-6 HC Usha Devi was also the eye witness in the present case. The accused was apprehended by her and personal search was conducted by her vide memo Ex. PW 1/C. PW-7 W/SI Parveen Arora is also the eye witness of the incident but her testimony has not been concluded.
5. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
6. The accused Manju in the present case is charged u/s 186/353/332 IPC on the facts that that on 08.01.1997 at about 1.00 p.m. at Gali No. 10, Village Shalimar Bagh, she voluntarily obstructed SI Narender Khatri complainant, a public servant FIR No. 20/97 PS Shalimar Bagh Page 3 of 12 in the discharge of his public duty. It is also the case of the prosecution that accused assaulted and voluntarily caused hurt to SI Narender Khatri while he was discharging his duty as a public servant.
7. The brief facts of the prosecution story are that on 08.01.1997 PW-1 SI Narender Khatri, PW-6 HC Usha Devi, PW-7 W/SI Parveen Arora alongwith DDA Staff were on demolition duty and at about 1.00 p.m. accused Manju came at the spot and started abusing PW -1 SI Narender Khatri. She was tried to be pacified but she continued abusing. She slapped PW-1 SI Narender Khatri and also caught hold of him from his neck due to which PW-1 sustained abrasions on his neck and the collar of his uniform shirt was torn. PW-7 W/SI Parveen Arora alongwith public persons Ram Singh and PW-2 Mohinder Singh separated her and apprehended her.
On receiving DD no. 14 A IO PW-4 SI Mahavir Parsad alongwith Ct. Ram Singh and Ct. Ramesh Kumar went to the spot i.e. Gali no. 10, village Shalimar Bagh and found that accused Manju was protesting against the demolition. PW-1 SI Narender Khatri narrated the incident to the IO and IO recorded his statement Ex. PW 1/A and prepared rukka Ex. PW 2/A and handed it over to Ct. Ramesh Kumar for registration of the case.
PW-5 ASI Rajbir was the DO who received the rukka from Ct. Ramesh and FIR No. 20/97 PS Shalimar Bagh Page 4 of 12 recorded the FIR Ex. PW 5/A and made endorsement Ex. PW 5/B on the rukka. After registration of the case, Ct. Ramesh Kumar came back at the spot and handed over the rukka and copy of FIR to IO PW-4 SI Mahavir Parsad. Thereafter IO prepared the site plan Ex. PW 4/B at the instance of SI Narender Khatri. The accused was arrested and her personal search was conducted by PW 6 W/Ct. Usha Devi vide memo Ex. PW 1/C. It is further in evidence against the accused that PW-6 W/Ct. Usha Devi went to HR Hospital and got the accused Manju medically examined and also obtained the MLC of accused Manju and thereafter returned to the PS. PW-1 was sent to medical examination to Hindu Rao Hospital alongwith PW-3 HC Azad and after medical examination they came back at the spot and MLC was handed over to the IO.
8. The relevant sections u/s 353/186/332/34 IPC are reproduced below for reference:
Section 353. 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 FIR No. 20/97 PS Shalimar Bagh Page 5 of 12 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. Section 186 IPC Obstructing public servant in discharge of public functions. 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.
Section 332 IPC 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.
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9. To prove the case against the accused the prosecution was obliged to prove the following ingredients:-
--That accused assaulted or used criminal force to SI Narender Khatri, public servant to desist him from his duty as such public servant;
-That accused caused the hurt to SI Narender Khatri
-That she voluntarily obstructed the SI Narender Khatri, a public servant in the discharge of his public functions;
10. To prove the case the prosecution has examined seven witnesses. PW-1 SI Narender Khatri is the complainant. PW-2 Mohinder Singh is the eye witness. PW-3 Azad Singh has accompanied the IO. PW-4 SI Mahavir Prasad is the IO. PW-5 ASI Rajbir was the duty officer who recorded the FIR. PW-6 HC Usha Devi was also the eye witness. PW-7 W/SI Parveen Arora is also the eye witness of the incident but her testimony has not been concluded and it could not be read in evidence.
11. Thus, PW-1 SI Narender Khatri, PW-2 Mohinder Singh & PW-6 HC Usha Devi are the material prosecution witnesses on which the case hinges upon. Lets appreciate the testimonies of these witnesses.
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12. PW-1 SI Narender Khatri has stated that on 08.01.1997 he was on demolition duty with police and DDA staff and at about 1.00 p.m. when the demolition was going on accused came to the spot abused him and slapped him 2-3 times and caught hold of him from the neck due to which he sustained abrasions on his neck. He also stated that she torned the collar of his uniform shirt. He further stated that ASI Parveen Arora and public persons Ram Singh and Mahender Singh separated her. PW-1 is the complainant and the main witness of the prosecution. Though he has stated that his uniform was torned by the accused and his examination was deferred for producing the case property i.e. shirt, however, on the next date of hearing, PW-1 stated that no shirt has been seized by the IO and there is no seizure memo for the same. If the uniform was torned by the accused, then there is no reason why the same has not been seized in the present case. The torn uniform was the vital piece of evidence to corroborate the prosecution version but the same has not been seized and produced for the reason best known to the prosecution. Further, PW-1 had stated that the accused has abused, slapped and caused abrasions on his neck. This fact has not been corroborated by any other person. PW-1 has further stated that DDA staff and several public persons were available at the spot but interestingly, no DDA staff has been examined to corroborate the version of PW-1.
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13. PW 2 Mohinder Singh is apparently an independent public witness. He has stated that he does not remember the date and the month but in the year 1997, DDA staff was doing demolition in gali no. 9 and at about 1 p.m. accused Manju abused ASI Narender Khatri and thereafter she was taken in the police van and that she has surrounded her arm on SI Narender Khatri. He did not state that the accused abused or slapped the complainant SI Narender Khatri. He only stated that accused had surrounded her arm over SI Narender Khatri. He also did not depose that accused had caused abrasions over the neck of SI Narender Khatri. He stated that around 100 people were present at the spot and one more Ram Singh was also present. The other witnesses present at the spot and Ram Singh have not been examined.
14. PW-6 HC Usha Devi deposed that on that day she was present alongwith SI Narender Khatri, Ct. Azad Singh, Ct. Ramesh and other police staff at Shalimar village where the demolition work was going on and in the meanwhile the accused Manju came near them and started using filthy language. She further deposed that accused caught hold of the uniform of SI Narender Khatri and slapped him. During cross-examination, PW-6 Usha Devi admitted that the accused did not assault the police officials in her presence and that she does not remember whether there were any nail marks on the body of SI Narender Khatri. She also does not remember whether the uniform of SI Narender Khatri was torn or not. Thus, it is clear that she FIR No. 20/97 PS Shalimar Bagh Page 9 of 12 is not the eye witness of the incident and her testimony is of no benefit to the prosecution. The prosecution has posed PW-6 as eye witness but the same stands falsified.
15. From the testimony of the witnesses, it transpires that there is no consistency in the statements and does not offer corroboration to the prosecution story. The version of complainant SI Narender Khatri do not find any corroboration from other material witnesses. There were admittedly several DDA persons and public persons but none of them has been examined to substantiate the prosecution story. The torn shirt has not been admittedly seized in the present case.
16. The basic requirement to attract the penal provisions of Section 186/353/332 IPC is that the victim must have been discharging his "official duty" at the time of incident. As per the prosecution, the complainant SI Narender Khatri was present alongwith the DDA staff for demolition work. No demolition order has been proved or produced in the present case. No DD entry regarding the police assistance given to DDA Staff for demolition has been proved on record. The prosecution has also not proved the arrival and departure entries of PW-1 SI Narender Khatri or other police officials who were deputed for the assistance of DDA staff in demolition work. Nothing has been shown to prove that SI Narender Khatri was discharging FIR No. 20/97 PS Shalimar Bagh Page 10 of 12 his official duties at the time of the incident.
17. In addition, the offence u/sec. 186 IPC cannot be established in absence of the complaint in writing of the public servant or to whom he is administratively subordinate according to Section 195 Cr.P.C. No complaint u/sec. 195 Cr.P.C. has been proved on record. The Hon'ble High Court of Delhi in ANIL LUSANA @ ANIL RATHI vs. STATE (NCT of DELHI) in Crl. App. 656/2007, Date of Decision: 23.10.2009 observed as follows:
"Moreover, even otherwise the conviction of the appellant herein under Section 186/34 and 353/34 IPC is not sustainable in the eyes of law since the complaint under Section 195 Cr.P.C. filed on behalf of Sh. Ashok Chand, DCP, Special Cell, Delhi for prosecuting the appellant herein by taking cognizance of the case, was never proved during trial."
18. In the light of above, this court finds that it is unsafe to convict the accused on the basis of the uncorroborated testimony of the complainant. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable FIR No. 20/97 PS Shalimar Bagh Page 11 of 12 evidence to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof. The prosecution has failed to prove the case against the accused and therefore, the accused is entitled to be exonerated.
19. In the light of above discussion and observations, the accused Manju is hereby acquitted for the offence u/s 186/353/332 IPC in the present case. Bail bonds are cancelled and surety is discharged. Documents, if any be returned after cancellation of endorsement on the same.
20. File after necessary compliance be consigned to record room.
Announced in open court ( SUSHIL ANUJ TYAGI )
24th day of August 2015 Metropolitan Magistrate,
Rohini Courts: Delhi
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