Delhi District Court
State vs . P. A. Joseph & Ors. on 24 July, 2014
IN THE COURT OF Ms. SHEETAL CHAUDHARY: METROPOLITAN
MAGISTRATE10 (SOUTHEAST), SAKET COURTS:NEW DELHI
State Vs. P. A. Joseph & Ors.
FIR No. 193/1996
U/s 186/353/342/332/34 IPC
P.S. G.K.1
J U D G M E N T
Serial No. of the Case : 452/1/14
Unique Identification No. : 02406RO25467/2002
Date of Institution : 04.06.1999
Date on which case reserved for
judgment : 07.06.2014
Date of judgment : 24.07.2014
Name of the complainant : Constable Pradeep Kumar
No.414/A, IGI Airport Police Station
New Delhi
r/o BlockA, H No.367, Moti Bagh1
New Delhi
FIR No. 193/1996
P.S. G.K1 Page No.1 of 11
Date of the commission of offence: 16.05.1996
Name of accused : (i) P. A. Joseph (since deceased)
s/o Shri S. M. Joseph
(proceedings abated on 01.09.2010,
since he died on 05.11.2009)
(ii) Bhupender Walia
s/o Shri Sardar Arjun Singh
r/o 89, Janta Flat, Khirki Village,
Malviya Nagar, Delhi
Also at: C221, DDA Flat, Kalkaji
New Delhi
(iii) Jasbir Singh (since proclaimed
offender)
r/o Block No.17, Ayur Vigyan
Bhawan, New Delhi
Offence complained of : U/s 186/353/342/332/34 IPC
Offence charged of : U/s 186/353/342/332/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 04.06.1999
Date on which case reserved for
FIR No. 193/1996
P.S. G.K1 Page No.2 of 11
judgment : 07.06.2014
Date of judgment : 24.07.2014
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
Briefly the case of the prosecution is that the present FIR was registered on a complaint of Constable Pradeep who was posted at P.S. IGI Airport in the capacity of process server, that while he was posted in the process server branch, On 15.05.1996 at about 08:00PM in the night he reached the house of accused No.1 P. A. Joseph s/o Shri S. M. Joseph for delivering the copy of summon issued against him under Section 446 Cr.P.C. from the Court of Shri Raghuvir Singh, the then ACCM, Patiala House Courts, New Delhi for his appearance before the Court on 22.05.1996. Thereafter on the same date the complainant has visited the premises of accused in the morning also, where he was informed about the nonpresence of accused the complainant had visited the premises of the accused on the night of the incident. The complainant further stated in his complaint that after reaching the place of the accused he handed over the notice of the court to the accused and requested the accused P. A. Joseph to sign the same, however, accused refused to sign and kept the copy of both the process with him and at that time there were three more persons present with accused P. A. Joseph started hitting the complainant and assaulted him and caused injury to him. The accused P. A. Joseph scratched with his nails on the chest of the FIR No. 193/1996 P.S. G.K1 Page No.3 of 11 complainant and due to the same the button of the shirt of the complainant were also torn. Thereafter he managed to escape from the spot and reported the matter to the police.
2. On the basis of the above mentioned complaint, the present FIR was registered. Investigation was carried out and on the conclusion of the investigation, charge sheet was filed. Copy of the charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter accused Jasbir was declared proclaimed offender on 19.03.2010 and during trial accused P. A. Joseph expired and therefore proceedings against him were abated.
3. On the basis of material placed on record, charge was framed against the accused Bhupender Walia under Section 186/353/342/332/34 IPC to which he pleaded not guilty and claimed trial. The matter was fixed for prosecution evidence. PE was closed on 21.03.2014 and subsequently statement of accused under Section 313 Cr.P.C.
4. It is evident to discuss the testimonies of all the prosecution witnesses in the present matter, prosecution examined as far as five witnesses in order to prove its case.
PW1 HC Pradeep Kumar (complainant) deposed that on 15.05.1996 he went to the house of accused P. A. Joseph (since deceased) at his residence at FIR No. 193/1996 P.S. G.K1 Page No.4 of 11 Masjid Moth where he was present along with other 3 persons. He took the notice from the complainant and started beating him along with 3 other persons. Thereafter complainant made a call on 100 number. Thereafter he went to police station G.K.1, where duty constable took him to AIIMS for medical examination which was marked at the request of P.S. G.K.1 and the same was exhibited Ex.PW1/A. Thereafter IO recorded statement of PW1 and seized the shirt of the complainant vide memo Ex.PW1/B. PW1 correctly identified the accused and stated that accused P. A. Joseph had already expired and other two persons as per his knowledge were not traced.
During the crossexamination, PW1 stated that he went at 08:00PM to the place of incident and also visited at 12:00 noon on the same day. He has further stated that when he reached three accused persons were sitting there.
PW2 retired ASI Maharaj Singh deposed that on 16.05.1996 he was posted at P.S. G.K.1 and on that day on receipt of DD No.17A he along with Ct. Ranbir Singh were preparing to go to the spot that is when Ct. Pradeep, complainant of the present matter who was posted at P.S. IGI Airport reached the police station and got recorded his statement Ex.PW2/A, upon which he endorsed and prepared the rukka Ex.PW2/B and got the FIR registered through DO. Thereafter he along with PW1 Ct. Pradeep and Ct. Ranbir went to the spot and prepared the site plan Ex.PW2/C and thereafter sent Ct. Pradeep (complainant) to hospital for medical examination. Thereafter all the three went back to police station and seized the torn cloths of Ct. Pradeep vide memo already Ex.PW1/B bearing signature at point B. Thereafter all three again went back to the spot and arrested accused Joseph (since FIR No. 193/1996 P.S. G.K1 Page No.5 of 11 deceased) and conducted his personal search vide memo Ex.PW2/D. During the personal search of accused Joseph, notice U/s 160 Cr.P.C served upon the accused was recovered and the same was seized vide Ex.PW2/E. Accused Bhupender Walia was not traced by him and on 10.07.1996 accused Bhupender Walia came to police station and surrendered who was subsequently arrested and his personal search was conducted vide memo Ex.PW2/G and was released on police bail vide bond Ex.PW2/H and thereafter PW2 recorded the statement of concerned witnesses under Section 161 Cr.P.C and after obtaining Sanction U/s 195 Cr.P.C. he was transferred and he handed over the present case file to MHC(R).
During the crossexamination, PW2 stated that he received the call at around 11:00PM and complainant Ct. Pradeep reached police station at around 11:30PM and thereafter complainant Ct. Pradeep was sent to hospital after midnight. He further stated that they reached the spot at around 01:00AM by two scooters within 10 minutes from the police station and again visited the spot in the morning but could not tell the exact time.
PW3 retired ASI Kaptan Singh deposed that on 10.07.1996 he was posted at P.S. G.K.1 and he along with IO ASI Maharaj Singh joined the investigation in the present matter and accused Bhupender Walia was arrested by IO and his personal search was conducted in his presence.
During crossexamination, PW2 stated that the accused had come to Police station for surrender and was arrested by IO ASI Maharaj Singh and he did not know the reason for the same.
FIR No. 193/1996 P.S. G.K1 Page No.6 of 11
PW4 Inspector Sunil Kumar has deposed in his testimony that in the year 1997 he was posted at P.S. G.K1 he got certificate under Section 195 Cr.P.C. from the SHO IGI Airport and the same was Ex.PW4/A. Opportunity for crossexamination was given to the accused but he did not question anything to the witness.
PW5 retired ACP Shri Dharampal Sharma deposed that on 15.05.1996 he was posted as SHO P.S. IGI Airport. On that day, on the request of IO he issued a certificate stating that the Ct. Pradeep Kumar was in service of summons and had departed duty on that vide DD No.7A dated 15.05.1996 for the service of summons. The certificate in this respect was already Ex.PW4/A. Opportunity for crossexamination was given to the accused but he did not question anything to the witness.
5. After completion of the prosecution evidence, prosecution evidence was closed and statement of the accused as mandated by Section 313 r/w 281 CrPC was recorded and all the incriminating circumstances came in evidence put to the accused for explanation.
6. No defence witness was examined on behalf of the accused and therefore the matter was listed for final arguments.
FIR No. 193/1996 P.S. G.K1 Page No.7 of 11
7. Before appreciating the evidence, I would like to have a glance at relevant statutory provisions necessary for the disposal of this case.
As per Section 186 IPC :
"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."
As per Section 353 IPC :
"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 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.
As per Section 332 IPC:
"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."
As per Section 342 IPC:
"Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."FIR No. 193/1996 P.S. G.K1 Page No.8 of 11
8. The Ld. Counsel for the accused has argued that the prosecution has failed to establish its case since the prosecution witnesses are all formal witnesses and no public witnesses have been examined in the present matter and that all the witnesses have deposed contradictory to each other. Counsel for accused argued that offences alleged against the accused have not been true since the complainant in his testimony nowhere stated that accused Bhupender Walia had caused any kind of injury or obstructed him in the discharge of his duty or used criminal force or wrongfully confined him. He further argued that despite of the fact that the incident took place where there were public persons, none of them were even examined by the prosecution or cited as witness. Further that despite of the fact that constable Pradeep Kumar had made a call on 100 number, the police official did not reach the spot and in fact came to the spot only when the complainant personally went and complained regarding the present matter. He further argued that there is contradiction in the statement of PW1 & PW2 since PW1 has deposed that he was taken for medical examination to AIIMS on the request of SHO from the police station however, PW2 deposed that Ct. Pradeep was taken for medical to AIIMS Hospital from the spot. Counsel for accused further argued that the complaint given by the complainant to the police is not in conformity with his deposition before the Court and therefore accused is liable to be acquitted as no offence is made out against him.
9. On the other hand, Learned APP for the State had argued that all the FIR No. 193/1996 P.S. G.K1 Page No.9 of 11 prosecution witnesses had supported the case of the prosecution and all the witnesses in their testimonies have very clearly deposed and proved the case of the prosecution.
10. I have heard Learned Counsel for accused and Learned APP for the State and gone through the material available on record and has considered the testimony of various witnesses and gone through the evidence on record. I am of the considered view that in the present matter the prosecution has failed to establish its case beyond reasonable doubt. Prosecution had examined five witness in the present matter where apart from complainant all other witnesses are formal in nature and going by the testimony of PW1, he has not even whispered about the manner in which the incident took place and the role of the present accused. Further there is contradiction in the testimony of PW1 & PW2 which create a doubt as to whether the accused was even present at the time of incident.
11. The cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused.
In Partap V. State of U.P., AIR 1976 SC 966, the Hon'ble Supreme Court dealt with the question of burden of proof and observed as under:
"The phrase "burden of proof" is not defined in the Act. In respect of criminal, cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal FIR No. 193/1996 P.S. G.K1 Page No.10 of 11 principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. No material contradiction has been brought about in their testimonies despite extensive cross examination by ld. Counsel for accused.
12. On the basis of facts and circumstances, the charge against the accused do not stand proved. Accordingly, the accused is acquitted of the offences punishable U/s 186/353/342/332/34 IPC.
Pronounced in open court (SHEETAL CHAUDHARY) on 24.07.2014 MM10 (SouthEast): Saket Courts: New Delhi:24.07.2014 FIR No. 193/1996 P.S. G.K1 Page No.11 of 11