Delhi District Court
State vs Amit Kumar Etc on 26 February, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT, NEW DELHI.
FIR No.: 561/2001
PS: Najafgarh
U/s: 186/332/34 IPC
Case no. 428983/2016
State
Vs.
Amit Kumar
S/o Sh. Vishwanath Singh
R/o H. No. 65A, Ranaji Enclave, New Delhi. ..... Accused
a) S. No. of the case : 428983/2016
b) The date of offence : 23.10.2001
c) The name of the complainant : Ct. Om Prakash
d) The name of the accused : Amit Kumar
e) The offence complained : 186/332/34 IPC
f) The plea of the accused : Pleaded not guilty
g) Argument heard on : 15.02.2024
h) The date of order : 26.02.2024
i) The final order : Acquitted
Brief Facts
1. Tersely put, the facts of the present matter are that on 23.10.2001 Ct Om Prakash was posted at PS Najafgarh and was on duty at beat No 5 Ranaji Enclave. During patrolling he reached near the house of one K N Singh and saw four boys digging road and laying water pipe. On enquiry qua any permission the said boys started abusing him and gave beatings to Ct Om Prakash and also torn his uniform. The information of the alleged accident was received PCR and PS was informed qua the incident. ASI Amrit Lal reached the spot and custody of accused Amit was handed over to ASI Amrit Lal by complainant. FIR No 561 of 2001 of the alleged incidents was registered by SI Rani Devi on receipt of rukka from Ct Raj Kumar sent by FIR No.: 561/2001 State versus Amit Kumar Page no. 1/15 ASI Amrit Lal. The investigation of the case was carried out by ASI Amrit Lal.
2. The investigation was set into motion and chargesheet was filed under Section 186/353/332/341 IPC. The copy of the chargesheet as well as annexures were supplied to the accused persons in compliance with Section 207 Crpc and Charges under section 186/332/34 of IPC were framed against all the accused persons i.e. Amit Kumar, Guddu @Sunil, Pappu and Appu on 11.10.2012 to which the accused persons pleaded not guilty and claimed trial. During the course of the trial accused Guudu @ Sunil expired and proceedings against him stood abated vide order dated 27.01.2023.
3. A total of 9 witnesses were examined mentioned in the list of witness.
Witness at Serial No 2, 3 & 8 i.e. Ct Raj Kumar, HC Duli Chand and ASI Amrit Lal/IO, respectively, expired during the course of trial, thus were never examined by the prosecution. Witness at Serial No 4 Mohinder Singh was duly served, however, he never appeared and resultantly was dropped from the list of witness.
4. The prosecution, therefore, examined Witness at Serial No 1, 5, 6, 7 & 9 as prosecution witnesses.
5. Statement under Section 294 CRPC was recorded of all the accused persons and they admitted the genuineness of Arrest Memo Ex B1 and B 2, personal search memo Ex B3 and Ex B4 and DD No 14A and 15 B dated 23.10.2001 Ex B5 and Ex B6.
Prosecution Evidence
6. To bring home the guilt of the accused persons, prosecution examined the following witnesses and placed reliance on the documents:
a) Ct Om Prakash was examined as PW 1. In his examination he stated that on 23.10.2001 he was posted at PS Najafgarh as Constable. At that time he was having duty at beat No 5 Ranaji Enclave. On that day FIR No.: 561/2001 State versus Amit Kumar Page no. 2/15 during patrolling in the neat area at about 1 pm he reached near house of Pradhan K N Singh Ranaji Enclave and saw that four boys were digging the road and laying the water pipe. He went near them and asked them whether they had any permission to dig or lay the water pipers on the road or not. They replied angrily "ki tum poochane wale kaun hote ho"
and started abusing him in filthy language. They all four caught hold of him. Two of them were having broken pipes in their hands. They started gaving beatings to him. They tore his uniform, buttons were removed during the beatings by the accused persons. His pocket was torn. Then he immediately called 100 number. PCR van arrived at the spot. He also informed at the PS regarding the incident. ASI Amrit Lal reached at the spot. He managed to caught hold of one of the accused persons namely Amit. Remaining fled away from the spot. He handed over the custody of accused to ASI Amrit Lal. Thereafter, he was taken to RTRM Hospital where his medical examination was conducted. He returned to the spot. The four boys were namely, Amit, Appu, Pappu and Guddu. All the accused persons were resident of his beat area and they are known to him. IO recorded his statement Ex PW1/A nearing his signature at point A. IO prepared the site plan at his instance. Accused Amit was arrested vide arrest memo Ex PW1/B bearing his signature at point A. His personal search was conducted vide memo Ex PW1/C bearing his signature at point A. He handed over his torn uniform to IO/ASI Amrit Lal who sealed the same with the seal of ASL and seized vide seizure memo Ex PW1/D. All the accused persons are present in court today and correctly identified by the witness. (At this stage MHCM produced sealed pullanda sealed with seal of ASL. Seal is broken and case property i.e. police uniform is found present. The uniform is having the name plate of OM Prakash and having badge of FIR No.: 561/2001 State versus Amit Kumar Page no. 3/15 Delhi Police on shoulder. Both the pockets of the uniform are torn. Three upper buttons and one button at the bottom are not present. Uniform is also torn on upper left side. Witness correctly identified the same by saying that this is the same uniform he was wearing at the time of the incident and same was handed over by him to IO vide memo Ex PW1/D.)
b) In his cross-examination PW 1 stated that he has not given any document regarding his presence on duty on 23.10.2001 i.e. date of incident. He denied the suggestion that he was not present on duty on that day and that is the reason why the IO has not placed any document regarding the same. He affirmed that there is no document on record regarding his presence in the said beat on the date of incident as Beat officer. He was on patrolling on his private bike. He affirmed that he did not tell registration number of his bike or gave any document to the IO regarding the same. He voluntarily stated that he was patrolling by foot in that area. He denied the suggestion that he was not on duty on that day and he visited the place of incident unofficially and that is the reason he did not tell registration number of his bike either in his statement or to the IO. He affirmed that he was patrolling alone. The digging work of road was being done in front of house of K N Singh Pradhan. He cannot say in whose house the work was going on as the pipes were lying on the road and the road was dug. He inquired from the accused persons regarding the digging of road to which they replied "Aap Puchhne wale kon Hote Ho" (Who are you to ask this question).
He tried to inquire about the digging but the accused persons did not allow him to do so by stopping him to enter their house and at that time accused Pappu came and stopped him. There are four houses of the accused persons in the same locality and the family members of the said FIR No.: 561/2001 State versus Amit Kumar Page no. 4/15 house pf accused persons were standing there when the incident took place. He do not remember how many houses are there in the said locality. Again said, there are about 3-4 houses other than the houses of accused persons. He denied the suggestion that there were many houses and no incident of stopping him had taken place that is why no public witness had given statement under Section 161 CRPC. From the locality no call was received by him. He himself went at the spot by walking. No complaint received regarding the said digging from Delhi Jal Board, MCD or other authorities.
c) He denied the suggestion that digging of the road was not going on but repairing work of pipe line was under process on road. He also denied the suggestion that the said repairing work was going on in front of the house of one Bablu. He voluntarily stated that the said work was not of repairing the road but they were digging the road.
d) The following question was put to the witness by the Counsel for the accused: I put to you that whether IO has seized any equipment i.e. Kulhari, Phawda, Chheni Geti used for digging purpose in front of you? The witness answered: NO. He voluntarily stated that he went to the hospital for treatment.
e) That he do not remember whether any equipment of digging was seized by IO later on during investigation. He denied the suggestion that there were no articles present on the spot and that is the reason no equipment were seized. He called at number 100 from his own mobile phone but the same is not mentioned in his complaint or statement. He denied the suggestion that he did not call at number 100. He do not remember whether he made any complaint before Delhi Jal Board, MCD or any other authorities. He also denied the suggestion that there was no digging work was going on and that is the reason he never gave FIR No.: 561/2001 State versus Amit Kumar Page no. 5/15 any complaint before Delhi Jal Board, MCD or any other authorities. He do not remember whether the said road was Kacha road or pukka road. (At this stage Defence Counsel has shown the photographs of the spot to the witness which are now Ex PW1/X (total 20 photographs) (Colly). The witness correctly identifies these photographs as the photographs of the spot where the digging was carried out by the accused persons.) These photographs were not taken by him but by the IO. IO has prepared the site plan which is now Ex PW1/Y. He affirmed that the side plan does not bear his signatures. He denied the suggestion that the site plan was not prepared at his instance or in his presence and that is why it does not bear his signature. That he went to the hospital after 2.00 pm. He affirmed that accused Amit was apprehended by him at the spot and handed over to the IO. He do not remember whether he told the Doctor that the accused persons gave beating to him. He denied the suggestion that he influenced the Doctor to prepare false MLC. He affirmed that the Doctor immediately treated him once he reached the hospital.
f) Defence Counsel put the question to the witness i.e. I put to you that as per the MLC, date and time of examination is mentioned by the Doctor at 4.50 PM/23.10.2001. Whether it is correct or not? The witness stated that he cannot say as the MLC is not made by him and the same is made by Doctor. He denied the suggestion that no quarrel took place between him and the accused persons. He denied the suggestion that he demanded Rs 2000/- as extortion from Bablu Manjhi S/o Deen Dayal Manjhi R/o H. No 37 Ranaji Enclave, Najafgarh, New Delhi who was doing the repairing work of the pipe line and when the accused persons along with some other persons objected to the same, hot talks took place between the accused persons and that is why to teach them a lesson a FIR No.: 561/2001 State versus Amit Kumar Page no. 6/15 false case was registered against them. He denied the suggestion that he falsely implicated the accused persons. He told the Doctor about his injuries as he was hit by accused Pappu on his face. He also told the Doctor that accused Amit and Guddu caught hold of him from behind. (At this stage the witness is shown complaint Ex PW1/A and asked whether the fact of hitting by accused Pappu on his face or accused Amit and Guddu caught hold of him from behind to which witness replied that these specifics averments are not mentioned in Ex PW1/A. He voluntarily stated that the fact i.e. four accused persons caught hold of him and started beating him and torn his uniform is mentioned. The said fact is from point B1 to B2.)
g) He denied the suggestion that he was never beaten by accused persons. He also denied the suggestion that accused persons did not tear his uniform. He affirmed that he had swelling on his face due to injuries caused by the accused persons. He affirmed that he did not sustain any other injuries other than the injuries mentioned in the MLC. He denied the suggestion that no quarrel took place between him and accused persons or that accused persons did not give him beatings or that accused persons did not tear his uniform. He denied the suggestion that he have falsely implicated the accused persons in the present case.
h) SI Rani Devi was examined as PW2. She stated that on 23.10.2001 she was posted in PS Najafgarh as duty officer with duty hours from 8 am to 4 pm and on that day at about 2.55 pm she received rukka through Ct Raj Kumar sent by ASI Amrit Lal. On the basis of the same she recorded FIR in the present case carbon copy of which is Ex PW2/A bearing her signatures at point A. The endorsement on rukka is Ex PW2/B. After registration of the FIR she handed over copy of the FIR and original rukka to Ct Raj Kumar. In her cross examination she FIR No.: 561/2001 State versus Amit Kumar Page no. 7/15 denied the suggestion that FIR is ante-dated and ante-time. She also denied the suggestion that FIR was registered under the influence of SHO as complainant ins a police officer.
i) During course of trial an application under Section 311 CRPC was moved on behalf of the accused persons which was allowed and PW 1 was further cross examined. In his cross-examination PW 1 affirmed that the pipeline repairing work was going on for Bablu Manjhi and in front of his house. He also affirmed that he has asked questions regarding the permission for carrying out pipeline repairing work from the concerned Authority and for the same he had arguments with him due to which he torn his uniform. That after his family members were also involved in the fight and started beating him. He affirmed that the name of the assailants was mentioned to him by the public persons and he personally have no knowledge about the same and parentage of those persons. He affirmed that due to the fight between him and Bablu Manjhi many public persons gathered at the alleged spot. He also affirmed that one person was caught by the public and handed over to PCR whose name and identity was not known to him. He also affirmed that accused has not quarrelled with him during aforesaid hindrance. He affirmed that he cannot identify the persons who gave him beating along with Bablu Manjhi.
j) Dr Atar Singh Yadav was examined as PW 3. He stated that presently he is posted as a CMO RTRM Hospital. In the year 2001 he was posted as a doctor in RTRM Hospital during that period. He have worked with Dr Sanjay Kumar and he is acquainted with the handwriting of Dr Sanjay Kumar. MLC of Om Prakash vide MLC No 1354 was prepared by Dr Sanjay Kumar. He hereby verified the handwriting and signature of Dr Sanjay Kumar on the abovesaid MLC Ex PW-3/A bearing his FIR No.: 561/2001 State versus Amit Kumar Page no. 8/15 signature at point A. Opportunity was given to accused persons to cross examined the witness, however, no cross examination was conducted.
k) KK Sharma, Retired ACP was examined as PW 4. He stated that he was posted at PS Najafgarh as SHO. He made complaint under Section 195 CRPC (Ex PW4/A and bearing his signature at point A to Additional CMM, New Delhi of the present case. After completion of the investigation, he filed the chargesheet of the present case. Opportunity was given to accused persons to cross examined the witness, however, no cross examination was conducted.
l) Thereafter, an application under Section 311 CRPC was filed by Ld APP to re-examine PW 1. The same was not opposed by the Ld Counsel for the accused and was allowed.
m) In his re-examination PW 1 affirmed that deposition made by him in his examination in chief on 16.07.2013 is correct. Ld APP put the question i.e. Whether the deposition made by you in examination in chief on 16.07.2013 is correct or facts stated by you in your cross examination on 30.10.2023? The witness stated that facts stated in his cross examination dated 30.10.2023 is correct. (At this stage Ld. APP seeks permission of Court to cross examine the witness as he is resiling from his earler statement in examination in chief given on 16.07.2013.) He denied the suggestion that he have deliberately taken the name of Bablu Manjhi to save the accused persons. He denied the suggestion that he have settled the matter with the accused persons outside the Court or have deposed new facts in his cross examination on 03.10.2023 to save the accused persons or that he have deliberately revealed the facts in his cross examination on 03.10.2023 or he have deposed falsely in his cross examination on 03.10.2023. Opportunity FIR No.: 561/2001 State versus Amit Kumar Page no. 9/15 was given to accused persons to cross examine PW 1, however, no cross examination was carried out.
7. PE was thereafter closed and statement of accused Amit, Appu and Pappu under Section 313 CRPC was recorded on 04.01.2024. They denied the allegations levelled against them and stated that they have not given any beatings to Om Prakash and the present is a false case. They chose not to lead their defence evidence, thus DE stood closed.
8. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughtful consideration to the matter.
Discussion/Findings
9. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favor of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
10. The offences under which the accused persons are charged are Section 186/332/34 IPC.
11. Section 186 IPC read as under:
"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 FIR No.: 561/2001 State versus Amit Kumar Page no. 10/15 for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
12. Section 332 IPC reads as under:
"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."
13. Thus, the essential requirement or the sine qua non, so to say, for invocation of the offences under Section 186 IPC and Section 332 IPC are "in the discharge of his public function" and "in discharge of his duty as such public person", respectively.
14. The events of the incident germinate on 23.10.2001 when PW 1 Ct Om Prakash, who as per the case of the prosecution, was having duty at beat No 5, Ranaji Enclave, and during patrolling he reached near the house of one K N Singh and saw four boys i.e. accused persons, digging road and laying water pipe. That on enquiry qua any permission, the accused persons started abusing him and gave beatings to him and also torn his uniform.
15. As per the case of the prosecution PW 1 was having duty at beat No 5 at the time of incident i.e. 23.10.2001. Thus, the first essential fact which has to be proved by the prosecution is PW 1 having duty at beat No 5. The same also becomes quintessential for establishing the condition of Section 186 IPC and Section 332 IPC i.e. "in the discharge of his public function" and "in discharge of his duty as such public person", respectively. However, nothing has been brought on record by the prosecution which could prove that PW 1 FIR No.: 561/2001 State versus Amit Kumar Page no. 11/15 was assigned the duty in beat No 5, Ranaji Enclave. PW1 in his cross examination also stated that he has not given any document regarding his presence on duty on 23.10.2001 i.e. the date of incident. PW 1 further in his cross examination affirmed that there is no document on record regarding his presence in the said beat on the date of incident as Beat Officer.
16. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution qua PW 1. Further, no document has been brought on record by the prosecution which could prove that PW 1 was assigned patrolling duty at Beat No 5. In absence of the departure and arrival entry of the police official i.e. PW 1, his presence at the spot cannot be believed and benefit of the same ought to be given to the accused persons. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"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 FIR No.: 561/2001 State versus Amit Kumar Page no. 12/15 creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
17. Additionally, even if for the sake of arguments, the presence of PW 1, who is a police official, is to be believed, the onus of proving the essential fact that PW 1 was at the spot in furtherance of discharge of his duty still rested on the prosecution. However, no document has been brought by the prosecution which could prove that PW 1 was assigned the duty at beat No 5 on the date of the incident and in furtherance of the same he was patrolling the place where the alleged incident took place. The abovesaid further creates a dent in the case of the prosecution.
18. Thus, non-proving of the fact that PW 1 was assigned duty of patrolling at Beat No 5 on 23.10.2001 is a major lacuna in the case of the prosecution and rests the case on a weak footing from the starting itself.
19. Another discrepancy in the case of the prosecution is qua the preparation of the site plan. PW 1 in his cross examination stated that the IO prepared the site plan which is Ex PW1/Y. PW 1 further affirmed that the site plan does not bear his signature. PW 1 denied the suggestion that the site plan was not prepared at his instance or presence. However, PW 1 failed to give any explanation that if the site plan was prepared at his instance, why the same does not bear his signature. In the present matter, the complainant is a police official. He is not a layman who is not aware about the procedures when the documents are prepared during the course of investigation. No such explanation was given by PW 1 regarding absence of his signature in site plan Ex PW1/Y. The accused also did not have any opportunity to cross examine the IO who prepared the site plan since the IO had already expired. Perusal of the site plan Ex PW1/Y reflects that it bears only the signature of the IO Amrit Lal. In fact, Ex PW1/Y was introduced during the cross examination of PW 1 and was not brought on record by the prosecution.
FIR No.: 561/2001 State versus Amit Kumar Page no. 13/15 Thus, doubt gets created regarding the preparation of the site plan by the IO. It cannot be said that the same was prepared by the IO at the instance of PW 1 at the place of incident. In other words, it cannot be ruled out that the same was not prepared in the Police Station and thus, the benefit of the same tilts in favour of the accused persons.
20. Further, during the course of the trial, PW 1 in his cross examination affirmed that pipeline work was going on for Bablu Manjhi. This is in contradiction to the case of the prosecution wherein PW 1 saw four boys digging road and laying water pipe and on enquiry qua any permission the said boys started abusing him and gave beatings to him and also torn his uniform. The perusal of the examination in chief of PW 1 along with his cross examinations reflects that PW 1 has been inconsistent qua his testimonies. Thus, placing reliance on the testimony of PW 1 who is also the alleged victim of the incident is inherently incredible. At one hand he claims to have suffered injuries from the accused persons whereas on the other he changed his position and put the blame on one Bablu Manjhi. At one end he denied the suggestion in his cross examination that Bablu Manjhi was doing the repairing work of the pipe line whereas on the other hand he affirmed the suggestion that the pipeline work was going on for Bablu Manjhi and he had arguments with him. Further, in his cross examination he affirmed that one of the accused Amit was apprehended by him at the spot and was handed over by him to the IO, however, again in his cross examination he stated that one person was caught by the public and was handed over to PCR whose name and identity was not known to him. Thus, PW 1, who is also the star witness, has been inconsistent in his submissions qua the facts of the case as well as the accused persons and creates a doubt in the case of the prosecution. Therefore, reliance cannot be placed on the sole testimony of PW 1 to arrive at a conclusion that the prosecution has been able to establish FIR No.: 561/2001 State versus Amit Kumar Page no. 14/15 their case beyond reasonable doubt and that the accused persons were the perpetrators. The doubt so created benefits the accused persons and tilts the scales in favour of the accused persons.
21. Further, on an application under Section 311 CRPC moved by Ld APP, specific question was put by the Ld. APP qua his examination in chief dated 16.07.2013 and cross examination dated 30.10.2023 to which PW 1 stated that the facts which were stated by him in his cross examination 30.10.2023 were correct vis-à-vis his examination in chief. The Ld APP then cross examined PW1 and suggestion were put to him. However, despite cross- examination by the Ld. APP for the State, nothing beneficial to the prosecution emerged out of the same. In the present case, the evidence available on record is not sufficient to help the prosecution at all.
22. Thus, in the opinion of this court, there is no cogent evidence on record to connect the accused persons with the commission of the offences and to prove their guilt beyond reasonable doubt.
23. In view of the above discussion, the prosecution has failed to prove the case beyond reasonable doubt against the accused persons. The accused namely Amit Kumar, Guddu @ Sunil, Pappu and Appu are, therefore, hereby acquitted of the offence charged, i.e., u/s 186/332/34 IPC.
Announced in the open court on 26.02.2024. HARSHAL Digitally signed by
HARSHAL NEGI
NEGI Date: 2024.02.27
15:20:39 +0530
(Harshal Negi)
MM-02/Dwarka Court,
New Delhi, 26.02.2024
It is certified that the present judgment runs into 15 pages and Digitally signed by each page bears my signature. HARSHAL HARSHAL NEGI NEGI Date: 2024.02.27 (Harshal Negi) 15:20:46 +0530 MM-02/Dwarka Court, New Delhi, 26.02.2024 FIR No.: 561/2001 State versus Amit Kumar Page no. 15/15