Delhi District Court
State vs . Tabish Mustafa on 18 October, 2011
State vs. Tabish Mustafa
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 311/09
ID No. 02406R0112432009
FIR No. 324/08
PS: Sarita Vihar
U/s 332/353 IPC
State Vs. Tabish Mustafa S/o Mohd Mustafa
R/o H. No. 5010, Gali Bagcha
Acharehman, Chandni Chowk, New
Delhi
Order on Sentence:
I have heard the arguments on the point of sentence from the Ld.
Addl. PP for state and the Ld. Counsel for accused.
2. The convict Tabish Mustafa has been held guilty by the
judgment of this Court dated 15.10.2011 for the offence U/s 332 and 353 IPC.
A leniency has been sought by the convict in awarding of the sentence on the
grounds interalia; that he is just 26 years of age and presently looking after his
family which consist of his father, mother and sisters, father being a heart
patient having gone through bypass surgery recently. It is further submitted
that he has already remained in custody during the investigation for 10 days
SC No. 311/09 1
State vs. Tabish Mustafa
and he has no criminal record whatsoever. It is further submitted that the
convict has done his 10+2 from an Open School after qualifying his 10th
Standard from South Delhi Public School. He further submitted that after
completing his 10th Class, he had started working with a Call Centre to earn the
livelihood.
3. I have considered the submissions made by the Ld. Addl. PP
who has stated that the convict had obstructed and prevented police officials in
discharge of their official duty and had also caused injury to one of the police
official by his act. Since he had prevented a public officer from discharge of
his duty, therefore, a strict view is to be taken.
4. While awarding the sentence, the mitigating and the aggravating
circumstance are need to be considered. The convict is not a criminal who
needs to be sent behind the bars. His act of causing injury to a public servant
while he was discharging his official duty, is an outcome of the anxiety and the
fear to escape from being challaned by the police officials. Notwithstanding
the fact that he has no criminal background and he did not harbour any criminal
intent at the time of commission of the offence, he must understand the sanctity
of law and the sanctity of obeying the directions of public officers. If the
directions, instructions and orders of public servants are disobeyed in this
fashion, it will lead to a complete anarchy. Therefore, while considering the
SC No. 311/09 2
State vs. Tabish Mustafa
mitigating circumstance of the convict, it is also necessary to make him realize
his mistake. Therefore, the following sentence is being awarded to the
convict:
So far as the question of imposing of substantive sentence of
imprisonment is concerned, the convict has already remained in custody
for 10 days and that is considered sufficient period of detention keeping in
view the facts and circumstances of the case. Therefore, the convict is
sentenced to simple imprisonment for the period already undergone by
him for the offence U/s 332 and 353 IPC. Further, for the offence U/s 332
IPC, he is sentenced to pay a fine of Rs. 10,000/ in default to undergo SI
for six months. For the offence U/s 353 IPC, he is sentenced to pay a fine
of Rs. 5,000/ in default to undergo SI for three months.
Copy of judgment and order on sentence be given to the
convict.
File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 18th October, 2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 311/09 3
State vs. Tabish Mustafa
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No.311/09
ID No. 02406R0112432009
FIR No. 324/08
PS: Sarita Vihar
U/s 307/332/353/279/186 IPC
State Vs. Tabish Mustafa S/o Mohd Mustafa
R/o H. No. 5010, Gali Bagcha
Acharehman, Chandni Chowk, New
Delhi
Date of institution : 15.10.2009
Date when arguments were heard : 03.10.2011
Date of Judgment : 15.10.2011
JUDGMENT
The prosecution case is that on 09.06.2008 SI Vijay Shrotriya was on duty with Traffic Inspector Insp. Beer Singh at Mathura Road, Sarita Vihar. The police team along with them was checking the vehicles near Hyundai Showroom, Mathura Road, Sarita Vihar. At about 4.25 pm one Santro car bearing No. DL4CS 2017, silver colour came from Sarita Vihar flyover side, SC No. 311/09 4 State vs. Tabish Mustafa with a speed of 68 kmph. Ct Islamuddin who was the Interceptor operator announced on mike about the registration number of the overspeed car and Ct Kavinder gave indication to the driver of the said car by showing red flag to stop the vehicle. The driver of the car brought the vehicle on the left side of the road and stopped the vehicle but suddenly the driver drove away the car and in that process hit Ct Kavinder who fell on the bonnet of the car and was dragged for a certain distance and thereafter, fell on the ground. The driver of the car instead of stopping the vehicle sped away the car towards Badarpur. SI Vijay Shirotriya followed him in a Government Gypsy. The driver of the Santro car kept on driving the vehicle at fast speed in a zigzag manner by overtaking the vehicles on the road from left and right side. After he crossed the red light traffic signal of Ali Gaon, he was intercepted before red light of NTPC, Badarpur. Accused Tabish Mustafa was the driver of the said Santrol Car.
2. The information regarding this incident was sent to the police station at about 6.15 pm which was noted vide DD No. 57B on which HC Subh Karan along with Ct Dushyant Kumar reached the spot. HC Subh Karan met Insp. Vijay Shrotriya and he recorded his statement. As regard Ct Kavinder it was informed that he was taken to Trauma Center, AIIMS Hospital by the PCR van Eagle 27. Accused was present at the spot. He was left in the custody of Ct Dushyant Kumar and HC Subh Karan himself went to the hospital where Ct Kavinder was found admitted vide MLC No. 124149/08, thereafter he came to the spot with the MLC and prepared rukka and sent Ct Dushyant Kumar for SC No. 311/09 5 State vs. Tabish Mustafa registration of the case under section 279/186/353/332/307 IPC. This led to the registration of FIR Ex. PW 1/C.
3. During investigation IO prepared the site plan Ex. PW9/A, seized the vehicle vide memo Ex. PW2/B. The medical record of Ct Kavinder was prepared and the injuries were opined as simple blunt. As per the MLC there was tenderness on right ankle and right shoulder and abrasion on right elbow and right angle and knee. The Xray of chest, right shoulder, right ankle and foot gave no fracture.
4. After completing the investigation the charge sheet was filed in the court and matter was committed to the Sessions court for trial. On 20.09.2010 after hearing the arguments from Ld. Addl. P.P for the state and Ld. Counsel for the accused order on charge was passed whereby it was opined prima facie offence under section186/353/332/308/279 IPC was made out. Charge was framed accordingly. Accused pleaded not guilty and claimed trial.
5. The prosecution had led evidence and examined following witnesses: 5.1 PW1 is ASI Satish Chand who deposed that on 09.06.2008 he was posted at PS Sarita Vihar and was working as Duty Officer. At about 4.51 pm he recorded DD No. 54A Ex. PW1/A. On the same day he recorded DD No. 57 at about 6.15 pm vide Ex. PW1/B. He also recorded FIR Ex. PW1/C on the basis of rukka which was received at about 8.30 pm through Ct Dushyant sent by HC Subh Karan.
SC No. 311/09 6
State vs. Tabish Mustafa 5.2 PW2 is Inspector Vijay Shrotriya. He deposed that on 09.06.2008 he was posted as Sub Inspector, ZO, Traffic Circle, Kalkaji. On that day he was on duty on Interceptor opposite Hyundai Showroom, Mathura Road along with Traffic Inspector, Kalkaji and other police staff. He deposed that at about 4.25 pm one Santro car bearing No. DL 4CS 2017 came from the side of Sarita Vihar Flyover and its speed was observed by the Interceptor operator as 68 kmph which was more an permissible limit of 50 kmph on the said road. He further deposed that the Interceptor operator announced on the mike about the over speed of the aforesaid car on this Ct Kavinder signaled it to stop by showing the red flag. Accused who was driving the said car stopped the car on side of the road on signal and immediately thereafter he started his car at high speed and hit Ct Kavinder, as a result Ct Kavinder fell on the bonnet of the car driven by the accused. He dragged Ct Kavinder on the bonnet of the car for about 3035 feet and thereafter Ct Kavinder fell down. Accused ran away in the car towards Badarpur border. He was chased by him with ASI Narender and HC Shabhu in the official gypsy bearing No. DL 1CJ 3537. The accused was apprehended after crossing Ali village red light and before the NTPC Badarpur red light crossing. He correctly identified the accused present in the court as the driver of the said car. He further deposed that accused was brought at the spot, where HC Subh Karan (PW7) had already reached, who recorded his statement Ex. PW2/A. 5.3 PW3 is Ct Kavinder Pal who deposed that on 09.06.2008 he was SC No. 311/09 7 State vs. Tabish Mustafa posted in Traffic Unit, Kalkaji Circle, New Delhi. He was on duty along with Inspector Veer Singh, ZO, SI Vijay Shrotriya and other staff near Peer Baba, opposite Hyundai Showroom, Mathura Road, New Delhi. He deposed that he was present at a distance of 2025 meters from the Interceptor and was on duty at that time to stop the over speeding vehicles. He deposed that at about 4.15 pm one Santro car of silver colour bearing No. DL4CS 2017 came from the site of Apollo Hospital. Ct Islamuddin on duty on Interceptor announced the number of the car which was coming at a speed of 68 kmph. He deposed that he indicated the driver of the vehicle with the red flag in his hand to stop the vehicle and the driver of the vehicle brought the vehicle on the side of the road and stopped it. Within second of stopping of the vehicle the driver of the car started the vehicle and hit him as a result of which he fell on the bonnet and was dragged for about 2530 feet. Thereafter he fell down on the road and became unconscious. He deposed that he regained consciousness in Trauma Center, AIIMS Hospital. He further deposed that he received injuries on the legs and hands and had received fracture on left leg.
5.4 PW4 is T.U. Siddiqui who had mechanically inspected the Santro car bearing No. DL4CS 2017 and gave his report Ex. PW4/A. 5.5 PW5 is HC Somvir Singh who brought the duty roaster of Kalkaji circle of 09.06.2008 as per which SI Vijay Kumar and Ct Kavinder were on duty. He proved the copy of the register as Ex. PW5/A. 5.6 PW6 is HC Dushyant Kumar who had accompanied HC Subh SC No. 311/09 8 State vs. Tabish Mustafa Karan to the spot on receipt of call.
5.7 PW7 is HC Subh Karan who had reached the spot on receipt of the call where he met SI Vijay Shrotriya and other police officials. He found the Santro car at the spot. He recorded the statement of SI Vijay Shrotriya and prepared the rukka Ex. PW7/A and got registered the case by sending Ct Dushyant Kumar to the police station along with rukka. Thereafter SI Padam Singh Rana took over the investigation.
5.8 PW8 is Sh Rupinder Kumar, Addl. DCP North District who has proved the complaint under section 195 Cr. P.C regarding the incident as Ex. PW8/A. 5.9 PW 9 is Inspector Padam Singh Rana who is the Investigating Officer of this case after registration of FIR. He prepared the site plan Ex. PW9/A and had seized the vehicle and arrested the accused. He further deposed that he also obtained the complaint under section 195 Cr. P.C from the DCP Traffic police.
6. Accused when confronted with statement under section 313 Cr. P.C denied the evidence as false. He stated that he was not driving the vehicle at a high speed. He had stopped at Mathura Road opposite Hyundai Showroom at the instance of the Traffic police and his documents were checked. His documents were complete and he was having valid driving license. The police officials tried to challan him wrongly without any basis. The traffic police officials had restrained him wrongly and when he asked them to allow him to SC No. 311/09 9 State vs. Tabish Mustafa go as his documents were complete and had not violated the traffic rules, they asked money from him for which he denied and on this account he was falsely implicated in this case.
7. I have heard the arguments from the Ld. Addl. Public Prosecutor for the state and the Ld. Counsel for accused and perused the evidence on the record carefully.
8. The prosecution case is that on 09.06.2008, the police team including Inspector Vijay Shrotriya (PW2) and SI Veer Singh, ZO of the traffic circle, Kalkaji was present opposite to Hyundai Showroom on Mathura Road, Sarita Vihar, New Delhi. This team was checking the speed of the vehicles and one Interceptor was also installed there. The accused while driving his car No. DL4CS2017 came from the side of Sarita Vihar Flyover. The Interceptor operator had noticed the speed of the vehicle as 68 kmph which was beyond the permissible limit on the said road. He announced the number of the vehicle on the mike to the police party which was posted there and Ct. Kavinder (PW3) gave an indication to the driver of the vehicle to stop the car. The accused who was driving the said car, had initially stopped the car but suddenly he started the car and drove away at high speed. In the said process, he hit Ct. Kavinder who fell on the bonnet of the vehicle and after 25/30 feet, he fell on the ground. The accused was apprehended after a chase given by SC No. 311/09 10 State vs. Tabish Mustafa Inspector Vijay Shrotriya.
9. This case of the prosecution has been proved by the statement of PW2 Vijay Shrotriya and PW3 Ct. Kavinder. The prosecution examined PW5 HC Somvir Singh to prove that SI Vijay Shrotriya and Ct. Kavinder were on duty as per the Duty Roster of Kalkaji Circle on 09.06.2008. His statement, thus, proves the fact that Ct. Kavinder and SI Vijay Shrotriya were performing their official duty when they had stopped the vehicle driven by the accused. It has come in the statement of PW3 Ct. Kavinder that the accused was stopped on the side of the road and SI Vijay Shrotriya (PW2) was coming near the vehicle of the accused to challan him when the accused had immediately started the vehicle. He has deposed in his examinationin chief that Ct. Islamuddin who was on duty on the Interceptor had announced the number of the car and also the speed informing that vehicle was coming at the speed of 68 kmph. So, this statement of PW3 is supported by PW2 Inspector Vijay Shrotriya. PW2 in the cross examination has deposed that the speed of the vehicle was announced on the mike, therefore, he was aware that accused was driving the vehicle at the speed of 68 kmph. He deposed that the speed is measured by the Interceptor which contain a device which record the speed. He has deposed that the permissible limit of the speed on the said road was 50 kmph and when the speed of the car driven by the SC No. 311/09 11 State vs. Tabish Mustafa accused was noticed to be more than 68 kmph, he was stopped. The cross examination of PW3 would show that SI Vijay Shrotriya was to challan the accused for this overspeeding. Thus, the evidence on the record and the statement of PW2 and PW3 would show that both of them were discharging their official duty and the accused had violated the speed limit on the said road for which he was liable to be challaned for overspeeding.
10. Section 353 IPC deals with a situation when the offender uses criminal force upon a public servant who is discharging his official duty and in the discharge of his official duty, he is assaulted by the offender either to prevent him from discharging his duty or deter him from discharging his duty. The offence U/s 332 IPC deals with the situation where an offender causes voluntary hurt to public servant, who is discharging his duty as such public servant, either with the intention to prevent him from discharging his duty or deter him from discharging his duty as such public servant.
11. It has come in the statement of PW2 and PW3 that when the accused stopped the vehicle and SI Vijay Shrotriya was coming near the vehicle, the accused immediately started his car and sped away, as a result of which, he hit Ct. Kavinder Pal who fell on the bonnet of the car and thereafter, on the ground after about 25/30 feet and, thus, caused injuries to him. This evidence would establish that the accused had used the SC No. 311/09 12 State vs. Tabish Mustafa criminal force by speeding away his vehicle from the spot when he was stopped by the police party and hit Ct. Kavinder causing injuries on his person. Thus, the intention of the accused obviously was to escape from the spot to avoid being challaned for the overspeeding of his vehicle and then preventing the police official from discharging their official duty.
12. The Ld. Counsel for accused had argued that the statement of PW3 Ct. Kavinder is full of embellishments and improvements and there are indications in the statement of witnesses that the FIR has been manipulated. He submitted that PW3 in his statement has stated that he was injured in the incident and taken to Trauma Centre, AIIMS by the PCR van where his leg was plastered on the same day. He has also deposed that he had received fracture on his left leg. The Ld. Counsel submitted that this statement of PW3 is not supported by any evidence. The MLC of the injured Ct. Kavinder dated 09.06.2008 and his Xray report of the same day, although not proved by the prosecution on the record, would show that there was no fracture on any part of the body of Ct. Kavinder and the injury was also opined as simple. The injuries mentioned are only tenderness of the ankle and abrasion on the elbow and the knee. He further argued that PW7 HC Subh Karan who had reached the spot on receipt of the information about the incident in his cross examination has admitted that he had met Ct. Kavinder in the hospital and SC No. 311/09 13 State vs. Tabish Mustafa he was declared fit for the statement but his statement was not recorded because Ct. Kavinder had said that he would give the statement after discussion with the ZO. He further argued that the prosecution alleges that the speed of the vehicle driven by the accused was more than 68 kmph but no record from the Interceptor operator was obtained nor Ct. Islamuddin, who was the Interceptor operator, has been examined by the prosecution. Therefore, this statement of the witnesses that the accused was driving the vehicle at the speed of 68 kmph was not corroborated by any evidence. At the same time, he has also argued that the accused was stopped by the police officials and he was being challaned wrongly to which he had objected. Therefore, he has been implicated falsely in this case.
13. So far as the improvements in the statement of PW3 is concerned, there cannot be any doubt that PW3 has exaggerated that he received fracture on the left leg because neither the MLC nor the Xray report confirm any fracture. The settled position of law is that there cannot be any statement of the witnesses which has no embellishment or some ring of untruth attached to the same. But these embellishments and exaggerations by a witness cannot by itself be a ground to discard his statement if his statement in substance is inspiring confidence and is supported by other evidence. The fact that PW3 Ct. Kavinder was hit by SC No. 311/09 14 State vs. Tabish Mustafa the accused while running away from the spot in his car and, thus, caused an injury stands proved from the statement of PW3 Ct. Kavinder and PW2 SI Vijay Shrotriya. The MLC and the Xray report confirm this. As regard the argument of the Ld. Counsel that there are manipulations in the FIR, it may be considered that the statement of Vijay Shrotriya (PW2) was recorded by PW7 HC Subh Karan when he arrived on the spot after the information regarding the incident was received in the police station. He had prepared the rukka Ex. PW7/A which shows that when he reached the spot, he met SI Vijay Shrotriya and Ct. Kavinder was already sent to the Trauma Centre, AIIMS. When he had recorded the statement of PW2 Vijay Shrotriya, he received DD No. 57B (Ex. PW1/B) regarding the admission of Ct. Kavinder in the Trauma Centre, AIIMS and thereafter, he went to the hospital and he met Ct. Kavinder there. He obtained his MLC and came back to the spot and sent the rukka. Now this statement of PW7 HC Subh Karan and the contents of Ex. PW7/A, the rukka prepared by him, do not have any contradiction. Merely because he did not prepare his rukka on the statement of Ct. Kavinder, does not mean that there is any fabrication in the FIR. SI Vijay Shrotriya is the eye witness of the incident who was present with Ct. Kavinder at the time of incident. He knew the entire facts of the case. Therefore, there was nothing wrong if HC Subh Karan had sent rukka SC No. 311/09 15 State vs. Tabish Mustafa after recording the statement of SI Vijay Shrotriya.
14. As regard the seizure of the record from the Interceptor operator regarding the speed of the vehicle, the Investigating Officer should have collected this evidence as it would have given more strength to the prosecution evidence. But a default by Investigating Officer in his investigation cannot be a ground for ignoring the statement of other prosecution witnesses if the said statements inspire the confidence. PW2 SI Vijay Shrotriya and PW3 Ct. Kavinder have both categorically deposed that Ct. Islamuddin who was the Interceptor operator had announced the vehicle number of the car driven by the accused and also announced that the car was being driven at the speed of 68 kmph. Their statements cannot be rejected simply because of their official status. No motive can be imputed to them to falsely implicate the accused in this matter. The accused when examined U/s 313 Cr.P.C has taken a plea that he had produced all the documents to the police officials and the officials were intending to challan him wrongly to which he had objected and, therefore, he has been implicated falsely in this case. Now this plea in defence is taken for the first time when the accused was examined U/s 313 Cr.P.C. If it is the case of the accused that the police officials were challaning him wrongly and he did not run away from the spot, then PW2 SI Vijay Shrotriya and PW3 Ct. Kavinder should have been SC No. 311/09 16 State vs. Tabish Mustafa confronted with this defence, so that they also had an opportunity to explain their position on this issue. Therefore, this plea taken U/s 313 Cr.P.C by the accused is an afterthought and, therefore, does not carry much weight.
15. The evidence, therefore, is found to be convincing about the incident in which Ct. Kavinder (PW3) was injured by the accused while he was driving away from the spot. The question now arise as to what offence has been committed? The accused has been charged for the offence U/s 308 IPC. So far as the injuries on the person of Ct. Kavinder are concerned, the MLC has shown simple injury. Although PW3 states that his leg was fractured, but it is not supported by any medical evidence rather the Xray report deny any fracture. To invoke Section 308 IPC, the prosecution must prove firstly; that the accused committed an act, secondly; that the said act was committed with the intention or knowledge to commit culpable homicide not amounting to murder and thirdly, that the offence was committed under such circumstances that if the accused by the said act had caused death, he would have been guilty of culpable homicide. So, the necessary ingredient of the offence U/s 308 IPC would be that the act should have been shown to be committed with the intention or knowledge to commit culpable homicide not amounting to murder. Now intention is a question of fact which is to be gathered from the nature SC No. 311/09 17 State vs. Tabish Mustafa of the act committed by the accused and surrounding circumstances and the knowledge would mean an awareness of the consequences of the act. In the present case, the accused had initially stopped the vehicle and he had hit the police official Ct. Kavinder while he was escaping from the spot. It is not the case of the prosecution that the accused was coming at the speed of 68 kmph and when indicated to stop, the accused instead of stopping the vehicle hit Ct. Kavinder who was indicating him to stop. Thus, the facts are not sufficient to draw any inference that there was any preplan or premeditation on the part of the accused. The injuries are simple and can be described as superficial also. Therefore, it is not the case where one can draw the inference about the requisite intention and knowledge which are necessary for the offence U/s 308 IPC.
16. The accused is also charged for the offence U/s 186 IPC which is a noncognizable offence. Section 195 Cr.P.C put a bar on the cognizance of the offence U/s 186 IPC unless a complaint is made in writing by the public servant concerned or some other public servant to whom he is administratively subordinate. Now the complaint as defined in Section 2 of the Criminal Procedure Code means any allegation made orally or in writing to a Magistrate "with a view to his taking action under the Code that some person has committed an offence".
17. Coming to the facts of the present case, one complaint U/s 195 SC No. 311/09 18 State vs. Tabish Mustafa Cr.P.C has been attached with the charge sheet. The order dated 18.04.2009 on which the charge sheet was filed nowhere states that any cognizance was taken on the complaint filed U/s 195 Cr.P.C. Therefore, it cannot be said that any cognizance has been taken of the offence U/s 186 IPC on the complaint filed by the public servant concerned or his superior Officer. However, this lacuna in the prosecution case cannot be a bar for the offence U/s 332 and 353 IPC, which are distinct offences. This position of law is well settled and is based on the observation made by the Hon'ble Supreme Court in the case of Durga Charan Nayak vs. State of Orissa AIR 1966 SC 1775. This judgment has been later on followed by the Hon'ble Delhi High Court in Gurcharan Singh Arora vs. State 96 (2002) DLT 181.
18. The accused has been charged for the offence U/s 279 IPC also for driving the vehicle rashly and negligently. In this regard, the only evidence which has been brought by the prosecution is the statement of PW2 SI Vijay Shrotriya who deposed that when he was chasing the accused, the accused was driving his car in zigzag manner by overtaking the pedestrians and vehicles. But this evidence does not establish the fact that his driving was endangering any human life or was likely to cause hurt or injury to some person on the road. If a vehicle is driven at a high SC No. 311/09 19 State vs. Tabish Mustafa speed, that cannot be a decisive factor to determine the rashness or negligence of the driving. Therefore, the evidence for the offence U/s 279 IPC is not sufficient enough to establish the guilt for the said offence.
19. From the evidence which has been led by the prosecution, it has been successful in proving beyond reasonable doubt the commission of the offence U/s 332 and 353 IPC against the accused. The accused is, thus, acquitted for the offence U/s 308 IPC, 279 IPC and 186 IPC and is held guilty for the offence U/s 332 and 353 IPC and convicted accordingly.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 15th October, 2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 311/09 20