Delhi District Court
State vs . Shadab on 3 September, 2014
IN THE COURT OF SH. DHIRENDRA RANA
METROPOLITAN MAGISTRATE: WEST02, DELHI
FIR No.199/12
Case ID: 02401R0490992012
State Vs. Shadab
PS Hari Nagar
U/s 186/353/332 IPC
JUDGMENT
Serial No. of the case 2393/II/12 Date of commission of 27.05.2012 offence Date of institution of the case 15.10.2012 Name of the complainant K.S.Meena
Name of accused, parentage Shadab S/o Mohd. Sammi R/o
& address House No.2510, Tilak Bazar Chota
Chamanwara Phatak Hawaskha, PS
Lahori Gate, Delhi.
Offence Complained Under Section 186/353/332 IPC
Plea of the accused Pleaded not guilty
Date of arguments 27.08.2014
Final order Convicted
Date of Judgment 03.09.2014
1. Vide this judgment I shall dispose off the present case filed by SI Ajay Kumar Gupta (hereinafter referred as IO) against Shadab (hereinafter referred as accused) on the complaint of Sh. K.S.Meena (hereinafter referred as complainant) for committing offences under section 186/332/353 of The Indian Penal Code FIR No.199/12 PS Hari Nagar 1 of 13 (hereinafter referred as IPC).
BRIEF FACTS:
2. Brief facts of the present case are that on 17.05.2012, one complaint was sent by the complainant to PS Hari Nagar to the effect that the accused assaulted warden Gangdhar and warden Basant Kumar in the jail premises. Medical of both the injured persons were conducted at DDU Hospital. The injuries suffered by them were simple in nature. On the basis of the complaint, FIR was registered and the accused was arrested in the jail itself. IO obtained complaint under Section 195 Cr.P.C. He also tried to obtain CCTV footage of the incident but the same was not available as no camera was installed near the spot of the incident. After completion of investigation, the charge sheet was filed on 15.10.2012 for the offences under Section 186/332/353 of IPC and the copies were supplied to the accused on the same day.
3. Court took cognizance of the above said offences and the charge against accused was framed on 05.11.2012 for the offences u/s 186/332/353 IPC to which he pleaded not guilty and claimed trial.
Evidence recorded during trial
4. In order to prove its case against the accused, the prosecution has examined 15 witnesses.
5. PW1 P.S.Meena is the complainant. He stated that he had not witnessed the incident personally and same was disclosed FIR No.199/12 PS Hari Nagar 2 of 13 to him by the injured jail officials. He exhibited his complaint as Ex.PW1/A and information qua nonavailability of the CCTV footage given by him as Ex.PW1/B.
6. PW2 Head Warder Gangadhar Singh and PW3 Warder Basant Kumar are the injured persons in this case. Both of them deposed that they were on duty from 5:30 am to 1:30 pm at ward no. 4 and 5. PW2 observed that one UTP Shahid was in intoxicated state and when he inquired the matter from him, he stated that on the intervening night of 26/27.05.2012, accused Shadab had intoxicated him by giving him Rasna and had done some wrongful act with him. PW2 brought the accused and UTP Shahid to control room office and produced them before the Superintendent Kailash Meena and went to the ward for his duty.
After half an hour when he was sitting at a ward gate, accused Shadab came back from chakkar and started abusing him. He gave a fist blow to PW2 on his lips and caught hold of him by his collar. He also gave him leg blow on his testicles. PW3 tried to intervene but accused also pounced upon him and PW3 suffered injuries on his fingers. PW2 exhibited his MLC as Ex.PW2/A whereas PW3 exhibited MLC as Ex.PW3/A.
7. PW4 SI Ajay Kumar Gupta is the IO of this case. He exhibited rukka as Ex.PW4/A. His examination was deferred at the request of the Ld. APP for the State as other witnesses were remained to be examined. He has not been examined by the State FIR No.199/12 PS Hari Nagar 3 of 13 during prosecution's evidence.
8. PW5 UTP Satbir deposed that on the date of incident at about 1112 o'clock in the night, the accused was giving Rasna to PW Shahid and thereafter, Shahid lost consciousness. He asked the accused to blow the emergency bell but he refused to do the same, therefore PW5 went to sleep. On the next day, D.S.Meena came to barrack and inquired about the incident occurred in the night. He stated that the accused was taken to Chakkar and after some time when he was entering into the ward, he torn the uniform of PW2 Gangdhar. He stated that accused had beaten Gangdhar and Basant Kumar.
9. PW6 UTP Raunak Alam deposed in favour of the accused. He stated that PW Gangdhar inquired from the accused Shadab whether he had done any wrong act with UTP Shahid and when accused refused for the same, Gangdhar slapped him. He turned hostile during crossexamination done by Ld. APP for the State and denied the fact that Shadab abused and assaulted PW Gangdhar and Basant Kumar in his presence.
10. PW7 UTP Gulshan also deposed on the lines of PW6 and has turned hostile.
11. PW8 ASI Ravi Dutt is the Duty Officer. He exhibited the endorsement on rukka as Ex.PW8/A and FIR as Ex.PW8/B.
12. PW9 UTP Manpreet stated that he was on duty in barrack no.3 from 10 pm to 12 mid night and nothing happened in FIR No.199/12 PS Hari Nagar 4 of 13 his presence in the said ward. In his crossexamination done by the Ld. APP for the State, he denied the fact that UTP Shahid complained to him that accused had committed sodomy with him. He denied the fact that accused assaulted the jail officers in his presence.
13. PW10 Dr. Om Prakash examined PW Gangdhar in DDU hospital. In his crossexamination, he admitted that it is not mentioned in the MLC as to how the incident occurred. He further admitted that details of the patient are not mentioned in the MLC.
14. PW11 Dr. Sandeep Sharma was posted in the Surgical Department. He exhibited the portion prepared by him in MLC as Ex.PW11/A. He stated that injuries were simple from surgical side.
15. PW12 Dr. Harish Kumar Gupta was posted as Medical Officer at Central Jail no.5 on the day of incidence. He could not depose in a proper manner and during crossexamination done by Ld. APP for the State, he deposed that at about 9.10am, jail official Gangdhar and Basant Kumar came to him and they were referred to DDU Hospital by him. UTP Shahid came dispensary at about 7.50 am and he was also referred to DDU Hospital.
16. PW13 WHC Santosh being DD writer recorded DD no. 24B on 27.05.2012 and informed the IO telephonically about the same. DD No.24B is exhibited as Ex.PW13/A.
17. PW14 Ghanshyam Dass exhibited the complaint under FIR No.199/12 PS Hari Nagar 5 of 13 Section 195 Cr.P.C as Ex.PW14/A.
18. PW15 Warder Devender Kumar produced the jail record to the effect that accused Shadab was in ward no.4 from 21.05.2012 to 27.05.2012. The record is Ex.PW15/A and Ex.PW15/B. He also exhibited the jail record of PW Gangdhar to support the the fact that he was on duty in ward no.4 and 5 from 5.30 am to 1.30 pm. The record is Ex.PW15/C. He also proved the duty record of warder Basant Kumar as Ex.PW15/D. He exhibited entries of duty emergency register vide which jail officials were referred to DDU Hospital as Ex.PW15/E and Ex.PW15/F.
19. Thereafter, PE was closed on 10.12.2013 and statement of the accused was recorded on 04.01.2014 wherein he pleaded false implication and opted to lead defence evidence. DW1 Shazadnadeem stated that accused was beaten by the jail staff and carnal intercourse was done with him. He stated that he saw the jail staff beating the accused. DW2 Shadab stated that he was beaten by jail staff in the ward itself. He was paraded naked in the jail compound. Thereafter, DE was closed on 25.03.2014.
20. I have heard final arguments put forth by Ld. APP for the State and Ld. Defence Counsel Sh. Sagir Ahmed.
BRIEF REASONS FOR THE DECISION:
21. It is the case of the prosecution that the accused FIR No.199/12 PS Hari Nagar 6 of 13 attacked jail staff who were discharging their functions in the capacity of public servants. Accused assaulted them and inflicted injuries on their person. Accused has been charged under section 186/332/353 IPC. Before proceeding further, it is appropriate to reproduce sections 186, 332 and 353 IPC as under:
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."
Section 353 IPC. Assault or criminal force to deter public servant from discharge of his duty. "Whoever assaults or uses criminal force to any FIR No.199/12 PS Hari Nagar 7 of 13 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 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."
22. Ld. Defence counsel argued that prosecution has examined jail inmates namely Raunak Alam as PW6, Gulshan as PW7 and Manpreet as PW9 but all of them have not supported the prosecution's case, therefore deposition of PW2 Gangdhar and PW3 Basant Kumar do not find any corroboration from independent source. Meaning thereby a doubt has been created in the prosecution's story and accused is entitled to be given benefit of doubt.
The point for consideration is that whether hostile deposition of jail inmates mentioned above are enough to dismantle the case of the prosecution. The answer is NO. The law is settled in this regard that the accused can be convicted on the basis of a sole, honest, trustworthy and reliable witness. It is the quality of witness which matters and not the quantity. Prosecution has examined PW2 and PW3 in the category of victim to prove its case against the accused. They have deposed accused Shadab attacked them when he was being taken to the control room as FIR No.199/12 PS Hari Nagar 8 of 13 another jail inmate namely Shahid had complained against him. Their deposition have been supported by PW5 Satbir who is also an UTP. The injuries suffered by PW2 and PW3 are duly proved by PW10. PW2 and PW3 have deposed in one tone that accused assaulted them and inflicted injuries on their person. Their deposition cannot be thrown into the dustbin merely because some jail inmates have not supported the prosecution's story. Moreover, no reason for false implication has been furnished by the accused, on account of which he has been falsely implicated in this case. Accused has examined two defence witnesses namely Shajad and Shamshad to support his defence that he was beaten by the jail staff on 27.05.2012. I have given my thoughful consideration to the deposition of these defence witnesses. DW1 has stated that hands and legs of the accused were broken by the jail staff and sodomy was also committed with him. He stated that he personally saw the jail staff beating the accused. In his cross examination, he admitted that he was not lodged in the ward where the accused was kept. He further admitted that chakkar was situated outside the boundary walls of the barrack and it was not possible to see through the ward as to what had happened at the chakkar, therefore, the manner in which DW1 has deposed reflects that he was not present at the time of incident and he has deposed falsely in favour of the accused. As far as inflicting injuries on the body of the accused and commission of sodomy FIR No.199/12 PS Hari Nagar 9 of 13 with him, these allegations have already been investigated by the police in another FIR in which cancellation report has already been accepted by the court. So, deposition of PW1 and PW2 are outrightly rejected and cannot be relied upon.
23. It is argued by Ld. Defence Counsel that the incident occurred on 27.05.12 where accused was arrested on 18.08.12. No explanation has been given by the IO for delay in arrest of the accused and this aspect smacks of an after thought on the part of the jail official and the IO.
The aspect pointed out by Ld. Defence Counsel is concerned with faulty investigation done by the IO. The deposition of PW2 and PW3 are enough to bring home the charge against the accused and the delay in arrest of the accused, does not affect the merits of this case and the arguments is of no avail to the accused.
24. It is not disputed that jail staff were not discharging their duties in the capacity of public servants and they received injuries at the hands of accused. The defences which have been put forth by the accused have been discussed in the earlier paras and this court is of the considered view that those defences are sham, baseless and moonshine. PW2 and PW3 have supported the prosecution case stating that on the date of incident they were being attacked and assaulted by the accused. Injuries of the injured persons have been proved by the prosecution.
FIR No.199/12 PS Hari Nagar 10 of 13
25. The next ground pleaded by Ld. Defence counsel is that CCTV footage of the incident has not been proved by the prosecution with the purpose to brush the truth under the carpet. If CCTV footage had been provided, things would have been clear. But by not providing the CCTV footage, jail staff withheld the factual position of incident and that shall be read against the prosecution and in favour of the accused person.
26. It is clear that CCTV footage has not been provided by the jail staff and this is not the first time, same has not been provided due to one reason or other which are not acceptable by any stretch of imagination. But the point needs consideration is that whether deposition of prosecution witnesses can be ignored merely because CCTV footage is not provided by the jail staff. The answer is No. Material prosecution witnesses have deposed that accused became furious without any rhyme or reason and inflicted injuries on their persons and that is enough to prove the allegations against him. Absence of CCTV footage is not so strong a ground so that accused can be acquitted.
27. Hence, keeping in view the above discussion and material available on record, it is proved by the prosecution that the accused Shadab attacked the PW2 and PW3 by using criminal force when they were discharging their duties in the capacity of public servants without any rhyme or reason and inflicted injuries on their persons. Prosecution has proved its case against the FIR No.199/12 PS Hari Nagar 11 of 13 accused to the hilt. Therefore, the accused is convicted for committing offences under section 186/332/353 IPC.
28. Before parting with this case, I would like to comment on the working condition of CCTV cameras in Jail premises. This is a matter of concern for the system that CCTV footages are not being provided by the jail staff as and when such uncalled incidents are reported to the police. When the entire Tihar jail is covered by the CCTV cameras, then how come these cameras stop working at the time of incident and jail officials merely states that cameras were not working at that time and no CCTV footage is available of the incident. The purpose of installation of CCTV cameras in the jail premises, is seems to be defeated. I have not seen even a single instance where CCTV footage has been provided by the jail authorities so that truth can be find out. In case CCTV footage is not available due to nonfunctioning of camera's, liability of the officer or agency concerned shall be fixed who are responsible/incharge of CCTV camera's maintenance at that particular time. This court had sent the judgment in case FIR No. 14/12 titled as State Vs. Kulwinder and State Vs. Furkan etc. FIR No. 76/2012 to the worthy DG, Prison, Tihar to look into the matter but no communication has been done till date by the Jail Administration.
29. Copy of this order be sent to worthy DG, Tihar Jail, Ld. Secretary DLSA (West) and Home Secretary, Delhi Government for FIR No.199/12 PS Hari Nagar 12 of 13 their perusal and necessary action on their part as non functioning of CCTV cameras at crucial moments is a matter of great concern which results in destruction of valuable piece of electronic evidence. Therefore, worthy DG Prison and Home Secretary, Delhi Government are advised to look into the matter at priority basis and take necessary action at their end.
30. Matter be listed for arguments on sentence on 06.09.2014.
ANNOUNCED IN THE OPEN COURT DHIRENDRA RANA ON 03.09.2014 MM02/WEST DELHI FIR No.199/12 PS Hari Nagar 13 of 13