Delhi District Court
State vs . : Dharmender Kumar on 12 October, 2022
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTHWEST)
DWARKA COURTS: DELHI
State vs. : Dharmender Kumar
FIR No. : 43/2015
U/sec : 186/353 IPC
P.S. : Dwarka South
Unique ID No. : DLSW020004632017
1. Date of commission of offence : 14.01.2015
2. Date of institution of the case : 10.01.2017
3. Name of the complainant : Ct. Tejbir Singh
4. Name of accused, parentage &
Address : Dharmender Kumar, S/o Sh
Girjesh,R/o Village Moriya Ghat, PS
Moli District Sant Kabir Nagar, U.P.
5. Offence complained of : 186 IPC
6. Plea of the accused : Pleaded not guilty
7. Final order : Acquitted
8. Date of final order : 12.10.2022
FIR No. 43/2015 State vs. Dharmender Kumar Page 1 of 11
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 14.01.2015 at about 11:15 a.m. at main road, Dwarka, sector511 picket, near sports complex, Dwarka, the accused Sh. Dharmender Kumar obstructed the public servant of Delhi police in discharging of their public functions. As such, it is alleged that the accused has committed the offence punishable under section 186 and 353 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 43/2015 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARNACE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The Ld. Predecessor of this court took the cognizance against the accused and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 186 of IPC was framed against the accused on 14.02.2015. The accused pleaded not guilty and claimed trial.
FIR No. 43/2015 State vs. Dharmender Kumar Page 2 of 11PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: ORAL EVIDENCE PW1 Ct. Rajesh PW2 Ct. Anil PW3 ASI Maha Singh PW4 SI Shiv Naresh Mishra PW5 Retd. SI Ali Ahmad Khan DOCUMENTARY EVIDENCE Ex. PW1/A Arrest Memo of the accused Ex. PW1/B Seizure Memo Ex. PW3/A DD No. 10A Ex. PW3/B Copy of FIR Ex. PW3/C Endorsement on rukka Ex. PW3/D Certificate under section 65B Ex. PW4/A Statement of Ct. Tejvir Singh Ex. PW4/B Rukka Ex. PW4/C Site Plan ADMITTED DOCUMENTS Ex. A1 DD No. 27B Ex. A2 Complaint u/sec 195 CrPC
4. PW1, Ct. Rajesh has deposed that on 14.01.15, he alongwith the IO reached at the spot on receiving a DD no. 10A at about 11:55 a.m. where Ct. Tejbir and Anil were already present on their picket duty, who narrated the whole story regarding the commission of offence. The accused was already apprehended by Ct. Tejbir and Anil. The IO recorded the statement of Ct. Tejbir and Anil and prepared the rukka and handed over the same to him for registration of FIR. After registration of the FIR, PW1 returned to the spot and handed over the copy of rukka FIR No. 43/2015 State vs. Dharmender Kumar Page 3 of 11 and FIR to the IO. In his crossexamination, he has stated that he cannot say as to whether the statement of any public witness under section 161 CrPC was recorded by IO.
5. PW2, Ct. Anil, has deposed that on the alleged day of the incident, he was on his picket duty in sector11, near sports complex and that at around 11:1511:30 a.m., one motorcyclist was seen coming from sector 6 and 10, Dwarka. He further deposed that he alongwith Ct. Tejbir tried to stop the motorcycle but he crossed him without stopping then he stopped him as he was standing near the barricade. When he asked to produce DL & RC, he refused for the same as he was not carrying the DL and RC at that time. Then the accused indulged with him in some arguments and tried to bribe him. When he refused, the accused started quarrelling with him and also started recording video of him and Ct.
Tejbir. Meanwhile, Ct. Tejbir had made a call in PS. ASI Shiv Naresh came at the spot and he took in writing the statement of Ct. Tejbir. In his crossexamination, he has deposed that no public person was present at the spot when he demanded DL & RC from the accused. He also stated that he had not recorded any video and audio clips regarding the incident. He refuted the suggestion that he had demanded the money from the accused and when he had refused, he had falsely implicated the accused.
6. PW3, ASI Maha Singh, has deposed that on the alleged day of the incident, he was posted as a DO and that he received a call made by Ct. Tejbir. He deposed that Ct. rajesh and ASI Shiv Naresh left for sector 5/11 main road. He further deposed that at about 2:55 p.m., Ct. Rajesh FIR No. 43/2015 State vs. Dharmender Kumar Page 4 of 11 brought one rukka for registration of FIR which was sent by ASI Shiv Naresh. He made the endorsement on rukka and handed over the copy of FIR and orgonal complaint to Ct. Rajesh to be handed over to ASI Shiv Naresh for investigation.
7. PW4, SI Shiv Naresh Mishra, the IO in the instant case has deposed that he alongwith Ct. Rajesh went to the spot after receiving DD No. 10A regarding quarrel. He met Ct. tejvir Singh, DHG Anil Yadav and the accused at the spot. He enquired about the incident from Ct. Tejvir who narrated the incident as deposed in his testimony After recording his statement, he prepared the rukka and handed over the same to Ct. Rajesh for registration of FIR. He prepared the site plan and formally arrested the accused and conducted his personal search memo. In his cross examination, he has deposed that no audio and video clip of teh incident was handed over to him by the complainant. PW5, Retd. SI Ali Ahmad Khan, has deposed that he had only prepared the chargesheet as the previous IO has been transferred.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
8. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 03.08.2022 without oath under section 281 read with 313 CrPC, wherein he stated that he is innocent and has falsely been implicated in the present case. He further stated that he does not want to lead defence evidence.
ARGUMENTS FIR No. 43/2015 State vs. Dharmender Kumar Page 5 of 11
9. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
10.Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel for the accused further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
11.In order to bring home the charge against the accused for the offence punishable under Section 186 IPC, the prosecution is duty bound to prove the following facts beyond reasonable doubts:
i. The accused persons assaulted or used criminal force to a public servant.
ii. Such public servant was then acting in the discharge of his public duty.FIR No. 43/2015 State vs. Dharmender Kumar Page 6 of 11
iii. It was caused to prevent or deter (voluntarily obstructing) him from discharging his duty as such public servant. iv. Such assault or criminal force was used in consequence of anything done on attempted to be done by the said public servant.
12.It is also pertinent to note that the FIR was registered under sections 186 and 353 of the IPC, however, the charge was framed only under section 186 of the IPC. The import of both these sections is to punish person who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in the case of Durgacharan Naik & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court as under: "It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the FIR No. 43/2015 State vs. Dharmender Kumar Page 7 of 11 public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body."
13.In the present case, the ingredients under section 186 IPC only have to be considered. It is important at the outset to understand certain preconditions attached with the prosecution under Section 186 IPC so as to give credence to further discussion. Section 195 (1) (a) of the Code of Criminal Procedure bars court to take cognizance of an offence punishable under Section 186 IPC unless a complaint has been made in writing by the public servant or by another public servant to whom he is subordinate. In Makardhwaj vs. State AIR 1954 Orissa 175, it has been held, "noncompliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC." However, in the present case, it is an admitted position that the compliance of section 195 CrPC has been met with.
14.Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE FIR No. 43/2015 State vs. Dharmender Kumar Page 8 of 11
15.Adverting to the facts of the present case, it may be noted at the very outset, the entire case of prosecution hinges upon the testimony of PW2 that he stopped the accused near the barricade and when asked to produce his DL and RC, the accused had refused and indulged into the arguments with PW2 and tried to bribe him. Further it is the case of the prosecution that when PW2 refused, he started quarrelling with him and also started recording the video of him and Ct. Tejbir. The imperative point is to assess the legal inference and meaning of word 'obstruction'' under section 186 of the IPC. It implies an act by the accused person in order to impede the discharge of public functions by a public functionary. In this case, the testimony of PW2 is vague and unclear with the point as in he has not mentioned any physical obstruction by accused in his complaint vide Ex. A2 to police but has only stated that the accused refused to produce his DL and RC when asked and indulged in the arguments with him and tried to bribe him. In the entire evidence, there is no allegation of any action being done by the accused to obstruct the police officials from performing their lawful duty. There is nothing to show that any obstruction was caused by the accused person. The allegation that the accused did not stop his motorcycle when he was given indication to do so and not producing his DL and RC, is not causing obstruction in performance of lawful duty of the public persons. It may appear to disobedience of an order of public servant but it is not obstruction of lawful duty of public servant. Further, the allegation of the prosecution that the accused tried to bribe the complainant has not been supported by any cogent evidence. It is only the verbal statement which is made by FIR No. 43/2015 State vs. Dharmender Kumar Page 9 of 11 PW2; thus, the prosecution has failed to lead any documentary evidence in support of his allegations.
16.Admittedly, there are no independent witnesses in the present case and only the case of the prosecution is based on the testimonies of police officials. Reliance be placed upon the judgment of the Hon'ble High Court of Delhi in the case of Jagdish Raj v. State 1987 Law Suit (Del) 86, wherein it has been observed that, "The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct. Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so. One cannot, however, rule out the situations in which under the pressure of circumstances it may not be possible to involve the public witnesses, but then this is a FIR No. 43/2015 State vs. Dharmender Kumar Page 10 of 11 matter which will have to be gone into under the particular circumstance of each case."
17.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the ingredients of the offence punishable under section 186 of IPC beyond reasonable doubt, however, the prosecution has been miserably failed to prove it. There is no evidence to link the accused with the crime charged against him. Resultantly, the accused, Sh. Dharmender is hereby found not guilty and is hereby acquitted of the offence under Section 186 of IPC.
Announced in open court on 12.10.2022 in the presence of the accused.
(Kratika Chaturvedi) Metropolitan Magistrate04, Dwarka, Delhi/12.10.2022 Note :- This judgment contains 11 pages and each page has been signed by me.
FIR No. 43/2015 State vs. Dharmender Kumar Page 11 of 11