Delhi District Court
State vs . Mohit Jain on 3 May, 2013
IN THE COURT OF SH. GAGANDEEP SINGH, METROPOLITAN
MAGISTRATE, DELHI
FIR NO: 220/97
U/S: 186/353/332 IPC
P.S: TIMAR PUR
STATE VS. MOHIT JAIN
:JUDGMENT:
Sl. No. of the case 100/2
Date of commission of offence 20.05.1997
Name of the complainant Ct. Sunil Kumar No.
696T, Traffic Circle Civil
Lines Zone, Delhi.
Name, parentage and address Mohit Jain
of the accused. S/o Sh. Ashok Jain
R/o H. No. C4/89, Yamuna
Vihar, Delhi53.
Offence complained off U/s 186/353/332 IPC
Plea of accused Pleaded not guilty
STATE VS. MOHIT JAIN FIR NO.220/97
1/17
Final order Convicted
Date of order 03.05.2013
Date of final arguments heard 03.05.2013
BRIEF FACTS AND REASONS FOR DECISION :
1. The story of the prosecution in brief is that on 20.05.1997 at about 9.45 am on Outer Ring Road, Burari Chowk, Delhi within the jurisdiction of Police Station Timar Pur, Ct. Sunil Kumar alongwith Ct. Nafe Singh were on traffic duty at Burari Chowk. The accused thereafter came in a Tata Sumo bearing No. DL6C7317 from Wazirabad side. He stopped his vehicle in the middle of the road. The traffic official Ct. Sunil Kumar asked him to go back at the stop line upon which the accused came out of his jeep. He thereafter assaulted Ct. Sunil Kumar and caught hold his neck. He also damaged the police uniform worn by Ct. Sunil Kumar. The accused also used filthy language against the traffic official. The other home guard official Ct. Nafe Singh and one public person Anwar rescued Ct. Sunil Kumar. The accused ran away from the spot and was arrested on the next day. Thereafter the accused Mohit Jain was booked for an offence of punishable u/s 186/353/332 of IPC.
2. That after completion of investigation the challan against the accused was filed on 25.07.1997 and the accused was summoned. The charge STATE VS. MOHIT JAIN FIR NO.220/97 2/17 u/s 353/332/504 of IPC was framed against the accused on 21.05.1998, to which he pleaded not guilty and claimed trial. The accused was discharged for the offence punishable u/s 186 IPC as no separate complaint u/s 195 Cr.PC was filed.
3. The prosecution has examined only six witnesses in the present case, in order to prove their case.
4. The PW1 Ct. Sunil Kumar is the star witness/complainant. He has deposed that on 20.05.1997 at 9.45 am he alongwith home guard Ct. Nafe Singh were present at Burari Chowk. He was controlling the traffic at the chowk and meanwhile a Tata Sumo bearing No. DL6C7317 came from the Wazirabad side. He had to take the turn towards the Burari side. But he stopped his vehicle in the middle of the chowk. He asked him to go back behind the Zebra crossing but he did not pay any heed to his request. He came towards him and hold his cap. He used filthy language against him and also caught hold of his neck. He had broken his two buttons and torn off his pocket. He received some scratches on his neck. One public person came there. That with the help of the home guard and that public person he was rescued. Accused ran away from the spot. Then he gave message to Traffic Control Room. IO came on the spot who recorded his statement. His shirt was handed over to the IO. He was medically examined at Hindu Rao Hospital. His statement is Ex. PW1/A. His shirt was seized vide seizure memo Ex. PW1/B. He was cross examined by the Ld. counsel for accused.
STATE VS. MOHIT JAIN FIR NO.220/97 3/17
5. The PW2 Dr. Manisha Sharma has deposed that on 20.05.1997 she medically examined Sunil Kumar vide MLC No. 6397/97 and prepared it. The MLC is Ex. PW2/A. She referred the injured to EMO (S).
6. The PW3 Anwar has deposed that he was running the shop of scooter repairing at the pavement of Burari Chowk. It was about 11.00 to 11.30 am. There was red light at the crossing of Burari Chowk and the accused had taken his Tata Sumo ahead of the stop line in the turning direction. That due to this some rebuking (tutu maimai) took place between the accused and policeman. Accused came out from the sumo and scuffle (hathapai) took place between the accused and the policeman. The button of shirt of the policeman broke down. The accused left the sumo and his father on the spot and left for Sant Nagar. The police recorded his statement. He was also cross examined by the accused.
7. The PW4 HC Sunita is the duty officer. The carbon copy of the FIR is Ex. PW4/A.
8. The PW5 Ct. Ranjit Singh has deposed that on 20.05.1997 he was posted at Police Station Timar Pur. On that day on receiving call regarding quarrel he alongwith ASI Dharam Pal reached at Burari Chowk. Accused was not at the spot as he fled away after leaving his vehicle No. DL6CA3317 the Tata Sumo. The vehicle was sent to traffic circle by Traffic Inspector. Then he alongwith SI went to Hindu STATE VS. MOHIT JAIN FIR NO.220/97 4/17 Rao Hospital. There SI recorded the statement of Ct. Anil Kumar No. 696T. The shirt of the constable which he was wearing was sealed with the seal of DP in a parcel. The seal after use was handed over to him. The parcel was seized vide memo Ex. PW1/B. IO handed over the rukka to him which he took to the Police Station, got the case registered. He came on the spot and handed over the original rukka and copy of FIR to IO. He returned to the Police Station and handed over the vehicle to IO. In Police Station the seizure memo was prepared and same is Ex. PW5/A.
9. The PW6 SI Dharam Pal is the IO who has deposed that on 20.05.1997 he was posted at Police Station. On that day on receipt of DD No. 7A regarding quarrel, he alongwith Ct. Ranjeet went to Burari Chowk, Outer Ring Road. There he came to know that the injured constable has been shifted to Hindu Rao Hospital. The vehicle Tata sumo had been taken away by the Traffic Inspector. He went to Hindu Rao Hospital and obtained the MLC of Ct. Sunil Kumar who was fit for statement. He recorded his statement Ex. PW1/A and he had taken uniform shirt of the constable which was torn at pocket of left side and the buttons were broken. He prepared a parcel of it and sealed with the seal of DP and seized vide memo Ex. PW1/B. The endorsement is Ex. PW6/A. On the statement of Ct. Sunil he prepared rukka and gave it to Ct. Ranjeet for registration of the case. He prepared the site plan at the instance of Ct. Nafe Singh. The site plan is Ex. PW6/B. He had summoned the vehicle Tata sumo from traffic Inspector and seized vide memo Ex. PW5/A. He had examined Ct.
STATE VS. MOHIT JAIN FIR NO.220/97 5/17 Nafe Singh and one Anwar. On 21.05.1997 he had arrested accused Mohit Jain. He was released on bail vide bail bond Ex. PW5/C and the vehicle Tata Sumo was released on superdari to Ashok Jain vide superdarinama Ex. PW5/D. He had obtained the complaint u/s 195 Cr.PC. He had examined the witnesses and recorded their statement.
10.That on 10.05.2011 the prosecution evidence was closed as the matter was pending since the year 1997 for evidence only. Thereafter, the statement of the accused was recorded u/s 313 r/w Section 281 Cr.PC on 27.06.2011. All the incriminating evidence was put to the accused wherein he denied all the allegations levelled against him and stated that he has been falsely implicated by the traffic police officials as they were seeking bribe from him. The defence evidence was led by the accused. The DW1 is the accused himself. He denied that he assaulted Ct. Sunil Kumar, on the other hand Ct. Sunil abused him and he was forcibly taken to the Police Station. The DW2 is the Ashok Kumar Jain the father of the accused. He also stated that his son never assaulted Ct. Sunil Kumar but on the other hand Ct. Sunil Kumar abused him and his son was forcibly taken to the Police Station.
11.The first and the second charge framed against the accused is regarding the assault and use of criminal force on the person of Ct. Sunil Kumar the public servant. Also voluntarily causing hurt to him in order to obstruct him in discharging his duties as public servant. That in order to prove their case prosecution was required to prove following ingredients: STATE VS. MOHIT JAIN FIR NO.220/97 6/17
(i) The public servant
(ii) Assault and use of criminal force upon the public servant voluntarily causing hurt
(iii) Assault while he was discharging his duty
(iv) That with the intent to deter him from discharging his duty as public servant.
12.The accused in the present case himself entered into the witness box and was examined as DW1. His examination is quite relevant in order to narrow down the facts in issue in present case. The accused himself admitted that on 20.05.1997 he was driving the Tata Sumo bearing No. DL6CA7313 and was stopped at Burari Red Light. There Ct. Sunil of Traffic Police came at the spot and forcibly took out the key of his car. He was thereafter falsely implicated. Thus the accused admitted the fact that Ct. Sunil Kumar of Traffic Police was on duty at Burari Red Light on 20.05.1997. Thus the only question which needs to be decided is as to whether accused assaulted Ct. Sunil Kumar who was on duty and prevented him in discharge of duty.
13.The star witness examined by the prosecution in the present case is PW1 Ct. Sunil Kumar who was assaulted. He is also the injured and the complainant on whose complaint the present FIR Ex. PW4/A was registered. That with respect to the testimony of PW1 Ct. Sunil Kumar it was argued by the Ld. counsel for accused that his testimony is not reliable and cannot be believed. The MLC Ex. PW2/A shows the malafide intention of PW1 as he gave the history as "stranuglated by STATE VS. MOHIT JAIN FIR NO.220/97 7/17 the driver of the four wheeler on crossing". The said history is against the record as well as the testimony of PW1. It was further argued that the MLC of PW1 shows that he was in perfectly normal condition without having any fresh injury. He was discharged on the same day without any treatment.
14.The material witness PW1 is the public servant himself who was on duty on 20.05.1997 at Burari Chowk. He has deposed on the lines of his earlier statement Ex. PW1/A. He was thoroughly cross examined by the Ld. counsel for accused and in the cross examination apart from the minor contradictions regarding the investigation/seizure of shirt no other contradiction has been brought about with respect to the main incident involving assault upon him. On the issue of history recorded in MLC Ex. PW2/A it was argued that the said manipulation makes PW1unreliable witness. The said history was recorded by PW2 to whom no question was put in her cross examination by accused. It is also a well known fact for which the judicial notice can be taken, the manner and circumstances in which the MLC's are prepared at the hospital. The history which has been recorded in the present case has to be seen in that context. The doctors at government hospitals in emergency are over burdened. Therefore writing down of exact words by the doctor concerned as narrated to them by the patient cannot be presumed. That regarding the other argument of PW1 being normal after the incident also cannot be accepted. The PW1 himself admitted that he only received the scratches on his neck. So there was no need for him to get the medicine for the simple scratch on the neck suffered STATE VS. MOHIT JAIN FIR NO.220/97 8/17 by him.
15.The other material witness examined by the prosecution for proving their case is PW3 Anwar who was present at the spot. It was argued on behalf of Ld. counsel for accused that in the cross examination of PW3 he exonerated the accused and in turn levelled allegations against PW1. The PW3 is the public witness who was present at the spot when the incident occurred. His presence at the spot and he being eye witness to the incident was never disputed by accused. His examination in chief was recorded on 16.11.1999 in which he supported the version of the prosecution. He categorically stated that the accused came out from the Tata Sumo and "Hatha Pai" took place between them. The police person suffered scratch on his neck and his uniform got torned. Subsequently his cross examination was deferred at the request of Ld. counsel for accused. His cross examination was conducted on 19.10.2001 in which he turned hostile and denied that accused ever assaulted the PW1 the police official. The Ld. APP did not even care to reexamine the said witness. Thus the question which has to be decided in the present case whether to believe his examination in chief or to consider his version in cross examination. It is admitted fact that the cross of examination of PW3 was conducted after about three years of his examination in chief. Initially in his cross examination he supported the version of the prosecution. But later on to the leading questions put to him he turned hostile and supported the version of the accused. Thus the possibility of PW3 being won over by the accused during the said period cannot be ruled out. His STATE VS. MOHIT JAIN FIR NO.220/97 9/17 examination in chief recorded on 16.11.1999 is in consonance with his previous statement recorded u/s 161 of Cr.PC. The Judgment of Hon'ble Delhi High Court in case titled as "Bijender Singh @ Vijay Fauji Vs. State" 2012 III AD (Delhi) 178 wherein the appreciation of evidence of such witness has been discussed is quite relevant in the present case. The Hon'ble High Court of Delhi observed that the court cannot surmise what was the cause for the volte face, the reasons are not hard to see. The witness was either won over by the inducement or threatened. Yet the consistency as far as his statement to the police on the one hand and his statement recorded during his examination in chief makes him reliable, rather then his later deposition. In the present case in hand also the consistency of PW3 in his chief and his initial cross examination has to be considered. Therefore the version of PW3 in his examination in chief has to be accepted as true which also corroborates the version of PW1.
16.The other corroborating evidence in the present case is the MLC of PW1 is Ex. PW2/A. It was argued on behalf of Ld. counsel for accused that as per the MLC only one injury has been recorded i.e. scratch on the front of neck of PW1. The age of said scratch mark has not been recorded and the said injury could also be self inflicted. The prosecution has also failed to obtain the forensic evidence so as to prove that the said injury mark matched with the nail of the accused. The MLC in the present case was prepared by PW2. She was examined on 29.01.1999. No question was put to PW2 regarding the age of the injury or whether it can be self inflicted by the accused. Similarly, no STATE VS. MOHIT JAIN FIR NO.220/97 10/17 such question was again put to the IO PW6 as to whether he had obtained the opinion as to the age of the injury or it can be self inflicted. The MLC Ex. PW2/A shows that PW1 was examined on the date of incident at about 11.30 am and he was brought to the hospital by the PCR officials. On local examination by PW2 she found scratch mark on the neck in front. She also found tenderness on the neck. On the left portion of the MLC PW2 recorded that there was black mole on lateral side of left eye brow. The said recording was the body identification mark on the PW1. The scratch mark was found by PW2 on local examination of the patient and hence the said mark can be assumed as recent injury. The tenderness on the neck also proves the said fact. The said MLC thus corroborates the version of the PW1 regarding the injury suffered by him in the incident.
17.The defence which has been taken by the accused at the stage of recording of statement 313/281 Cr.PC is that he has been falsely implicated by the traffic police officials as they used to seek bribe from him for running the vehicles in the area. The said defence taken by the accused is bald defence without any foundation. No such suggestion was ever put to the material witness PW1 nor any question was put to him in this regard. The accused also never lodged any complaint regarding the said act on the part of traffic police officials to any higher authority or to the court. Further no such question was put to the IO PW6 nor any suggestion was given to him in this regard. Therefore the defence raised by the accused being a bald defence cannot be accepted. The last argument which was raised on the behalf STATE VS. MOHIT JAIN FIR NO.220/97 11/17 of accused was that the prosecution in the present case has failed to produce any forensic evidence in order to prove their case. The scratch mark suffered by PW1 was never got matched with the size of the nails of the accused. No doubt the forensic evidence could have been collected by the prosecution but the said default does not effect their case due to clear and cogent evidence of PW1. The ocular evidence produced by the prosecution proves their case beyond reasonable doubt with respect to the offence punishable u/s 353/332 IPC.
18.The third charge which has been levelled against the accused is for offence punishable u/s 504 IPC. As per the prosecution, the accused abused PW1 Ct. Sunil Kumar intentionally with intent or knowledge that such provocation will result in break down of the public peace. Again for proving the said charge the material witness is PW1 who stated that the accused used filthy language against him. The Ld. counsel for accused has argued that the mere use of filthy language does not prove the ingredients of offence punishable u/s 504 IPC. The Judgment of Hon'ble Supreme Court in "V R Meena Vs. Mangal Dass"
1988 CRLR 285 SC is relevant to decide the charge. It was held that mere utterance of abusive words does not constitute the offence punishable u/s 504 IPC. The said insult must give provocation to any person and further the said person should have knowledge that such provocation will result in breach of public peace. In the present case also the accused merely used filthy language against the PW1. The ingredients of provocation and knowledge on the part of accused are STATE VS. MOHIT JAIN FIR NO.220/97 12/17 missing in the present case. Hence, no offence punishable u/s 504 IPC is made out.
19.In view of above said discussion, I am of considered view that the prosecution has been able to prove their case successfully beyond reasonable doubt against the accused Mohit Jain u/s 353/332 IPC. In view of the above said reasons, accused Mohit Jain is convicted for the offence punishable u/s 353/332 IPC. Arguments on sentence to be heard separately.
(Announced in the open court)
Dated: 03.05.2013 (GAGANDEEP SINGH)
MM07/CENTRAL
TIS HAZARI : DELHI
STATE VS. MOHIT JAIN FIR NO.220/97
13/17
IN THE COURT OF SH. GAGANDEEP SINGH, METROPOLITAN MAGISTRATE, DELHI FIR NO: 220/97 U/S: 353/332 IPC P.S: TIMAR PUR STATE VS. MOHIT JAIN 16.05.2013.
ORDER ON SENTENCE Present: Ld. APP for the State (substitute).
Convict Mohit Jain in person with Ld. counsel Sh. A K Bhardwaj.
The report on behalf of Probation Officer filed. Same is taken on record and perused.
Vide my separate detailed judgment dated 03.05.2013, accused Mohit Jain has been convicted for the commission of offence punishable u/s 353/332 IPC.
Arguments on the point of sentence heard.
Record perused.
Ld. APP (substitute) has argued that accused is liable to be given maximum punishment for having been found guilty for the offence u/s 353/332 IPC.
STATE VS. MOHIT JAIN FIR NO.220/97 14/17 The convict on the other hand submits that he is not habitual offender. This is his first criminal involvement. Further he has a wife and children to maintain and he is the only earning member for their family.
Ld. counsel for convict has also submitted that a lenient view may be taken against the convict. It is requested that convict may be released on probation as he has already been moved an application u/s 4 of Probation of Offenders Act.
The report of the Probation Officer in terms of the act has been filed. As per the report no other involvement of the convict has been reported. His conduct after the present case has been stated to be satisfactory. It has been further submitted that the present case is fit case for grant of probation.
Heard. After hearing both the parties and perusal of the record and keeping in view the fact that accused is not previous convict and he has a family. He has faced trial for the last 15 years and no purpose will be served by sending him to jail. He deserves a lenient view in sentence.
In the circumstances of the case, convict is allowed to be released on probation on furnishing of probation bond for a sum of Rs. 10,000/ for a period of one year. Further directions that in the first week of every month he will report to the probationary officer of the District. The period of probation will be one year from today. The Probation Officer may report immediately if conduct of accused is not satisfactory. Copy of the order be sent to the Probation Officer and also to SHO concerned for necessary information. That with these directions accused be released on probation. The probation bond is furnished and STATE VS. MOHIT JAIN FIR NO.220/97 15/17 accepted.
Further, u/s 5 of Probation Offencer Act convict is directed to deposit legal cost of Rs. 10,000/. Legal cost has been deposited by the convict in the court.
File be consigned to Record Room.
(Announced in the open court)
Dated: 16.05.2013 (GAGANDEEP SINGH)
MM:CENTRAL(07)
TIS HAZARI DELHI
STATE VS. MOHIT JAIN FIR NO.220/97
16/17
CC/FIR No. 220/97
P.S. TIMAR PUR
STATE VS. MOHIT JAIN
16.05.2013
Present: Ld. APP for the State (substitute).
Convict Mohit Jain in person with Ld. counsel Sh. A K Bhardwaj.
Vide my separate detailed judgment dated 03.05.2013, accused Mohit Jain has been convicted for the commission of offence punishable u/s 353/332 IPC.
The Probation bond in terms of order of sentence has been submitted and accepted. Legal cost amount has been deposited by the convict. Previous bail bond and surety bond stands discharged. Original documents be returned as per rules.
File be consigned to Record Room.
(GAGANDEEP SINGH)
MM07/CENTRAL/DELHI
16.05.2013
STATE VS. MOHIT JAIN FIR NO.220/97
17/17