Delhi District Court
State vs Munshad @ Ashu @ Pehalwan @ Farukh on 23 February, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-004197-2018
SC No. 221/2018
FIR No. 144/2017
U/Sec. 395/397/412/120B IPC &
Section 25/54/59 of Arms Act
P.S. Crime Branch
STATE VERSUS MUNSHAD @ ANSHU @ PEHALWAN @ FARUKH
(i) SC No. of the case : 221/2018
(ii) Date of commission of offence : 29.08.2017
(iii) Name, parentage and address : Munshad @ Anshu @
Pehalwan @ Farukh
S/o Sh. Shahdin
R/o Village Khandrawali
PS Kandhla, Distt. Shamli
Uttar Pradesh
(iv) Offence complained of : 395/397/412/120B IPC &
25/27/54/59 of Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 23.02.24
Date of Institution : 26.03.2018
Date of Judgment reserved on : 17.02.24
Date of Judgment : 23.02.24
SC No. 221/2018
FIR No. 144/2017
State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 1 of 28
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of ASI Satish Kumar.The FIR is Ex.PW1/A which is registered at PS Crime branch on 29.08.2017. The certificate under Section 65B of Indian Evidence Act is Ex.PW1/B which is proved by PW-1 HC Pankaj by pointing his signatures at point A in both the exhibits. He had handed over copy of FIR and Rukka to Ct. Parvinder to hand over to SI Mandeep. Ct. Parvinder had bought the Rukka sent by ASI Satish Kumar. The endorsement of PW-1 on the Rukka is Ex.PW1/C bearing his signatures at point A. The ASI Satish Kumar had acted on secret information that some bad elements of Western Uttar Pradesh belonging of Mukeem Kala Gang had hidden in Delhi at some place and they are robbing and killing people for money. Many manual sources were deployed to develop the information. On 29.08.2017 around 4:00 PM one secret informer after appearing at Office ISC, Crime Branch, Chankayapuri had told to ASI Satish Kumar that some bad elements belonging to gang of Mukim Kala gang namely Sh. Munshad @ Ashu, Sh. Parvez and Sh. Sameer @ Chotu had hidden somewhere at a place across Yamuna and they are involved in many serious offence. For the purpose of preparation of robbery they will collect together at Jama Masjid around 7:00-8:00 PM and they would have ammunition in large quantity.
2. The secret informer was produced before Insp. Neeraj Chaudhary at Crime branch, Chankayapuri who had verified the information and SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 2 of 28 instructed to take immediate action on which ASI Satish Kumar had prepared a team with HC Sanjeev Kumar, Ct. Parvinder, Ct. Prashant, Ct.
Naveen. With such raiding party they had reached at the area of Jama Masjid. They had reached around 6:30 PM. The area was congested. The car was parked near Meena bazar road. 5-7 public persons were asked to join the raiding party who had declined to join and left without telling their name and address. The raiding party with informer had taken stand at different places at RCC Meena bazar as per site plan Ex.PW3/E. SI Mandeep had prepared the site plan at the instance of PW-3 ASI Satish Kumar. Around 7:40 PM three person were seen walking coming from Netaji Subhash Marg towards RCC Meena bazar road, Jama Masjid. The secret informer had pointed towards the said person and left the place. When PW-3 had confronted the said person then one of them had taken out a pistol from left side of his "DUB" and started running. When that person had started running then Ct. Parvinder and Ct. Prashant were trying to catch hold of him on which said person had pointed pistol towards them and made a fire. Ct. Parvinder and Ct. Prashant had lied down on the floor. The said person again started running towards the market on which Ct. Parvinder, Ct. Prashant and PW-3 ASI Satish Kumar started running behind the said person to catch him. HC Sanjeev and Ct. Naveen were coming from front side and on seeing them the accused person had started running towards left side. HC Sanjeev had fired in the air to lower the morals of the accused. Near gate no. 2 of metro station at Jama Masjid the accused who had fired earlier had tried to fire again towards the police team on which Ct. Parvinder and Ct. Prashant had overpowered him whose name was disclosed as Munshad @ Anshu @ Pehalwan S/o Sh. Shahdin aged about 27 years.
SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 3 of 283. In this milee the other two person/accused ran away in different directions taking benefit of running of public person here and there. Many public persons had accumulated at the spot and started beating the accused Munshad. Beat Ct. Prahlad of Jama Masjid had also reached at the spot with the help of whom the accused person was saved from public person. During the process of catching the accused Munshad he had fallen from stairs and suffered injury on his head. The pistol was seized from right hand of the accused in chamber of which one live round was found and in the magazine two round were found. 3-4 public persons were asked to join by PW-3 who did not join and left the spot without telling their names and address. The secret information was that the accused would reached at the spot at Jama Masjid between 7:00-8:00 PM who could be armed with weapon. The secret information is recorded vide Ex.PW3/A. The sketch of pistol and three live cartridge is Ex.PW3/B and the seizure memo of the same is Ex.PW3/C. The sketch of empty cartridge seized from the spot is Ex.PW6/A. Seizure memo of which is Ex.PW6/B. The exhibits after medical examination of accused were seized vide memo Ex.PW8/A and the handing over of said exhibits in sealed pulanda is Ex.PW9/A. The arrest memo of accused is Ex.PW7/A whose personal search is Ex.PW7/B.
4. The disclosure statement of accused is Ex.PW7/C and medical examination of the accused Munshad is available on record which mentions that the accused had fired on the police party who had tried to run away from the spot. The accused was beaten by public. The accused was having arm bruise 5x2cm long over lateral mid arm on the right arm.
SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 4 of 28Other abrasions were there on lateral aspect of arm on right arm 2 in number size measuring 0.5x10cm. Injury measuring 5x0.5cm was present over scalp over right temporal region. The accused had suffered multiple bruise measuring over 20x0.5cm over right thigh lateral aspect. This document is not exhibited by the prosecution. The discharge report mentions soft tissue injury on the accused. Accused was conscious and oriented. The MLC of Ct. Prashant Kumar is Ex.A-2 who had pattered bruise of size 5cmx2cm over back and left elbow. The photograph of the market place are Ex.PW5/A-1 to Ex.PW5/A-4 which appears to be taken after incident and two empty fired round are also seen in the picture vide Ex.PW5/A-1 and Ex.PW5/A-2.
5. The charge against accused Munshad @ Anshu @ Pehalwan @ Farukh was framed on 15.05.2018 under Section 186/353/332/307 IPC and 27/25 of Arms Act to which accused has pleaded not guilty and prosecution had examined PW-1 to PW-15 and thereafter statement of accused was recorded under Section 313 Cr. PC. The accused does not want to lead evidence in defence. Hence DE stands closed.
6. Final arguments are heard from both the parties and record perused.
7. Learned Counsel for the accused relied upon the following citations:
1. Darbara Singh vs. State of Punjab AIR 2013SC 840;
2. Ankur Kumar vs. State of NCT of Delhi 2018 (2) JCC 869;
3. Shivji Genu Mohite vs. State of Maharashtra AIR 1973 SC SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 5 of 28 55;
4. Sanichar Sahni vs. State of Bihar AIR 2010 SC 3786 (relevant para No.16 & 17);
5. Umesh Singh vs. State of Jharkhand & Anr. AIR 2011 SC 143;
6. Ratiram & Ors vs. State of MP AIR 2012 SC 1485 (relevant para No.15);
7. State of UP vs. Kishanpal & Ors 2008 16 SCC 73; and
8. Rajinder Kumar & Anr. vs. State of Punjab AIR 1966 SC 1322.
8. The prosecution has to prove the sanction against the accused for possessing fire arm which is pistol in the present case and sanction was proved by PW-15 Sh. Rajesh Deo, DCP South-East vide Ex.PW15/A under Section 39 of Arms Act which bears his signature at point A. The sanction was given for recovery of one improvised pistol and 3 live cartridges with one cartridge case which was fired by the accused. PW- 15 had neither seen the accused nor recovered gun was produced before him.
8.1 The prosecution has to prove the ingredients laid down under Section 307 IPC. The Hon'ble Supreme Court of India in case titled State of Maharashtra vs. Kashirao & Ors on 27 August, 2003 Case No. Appeal (Crl.) 124 of 2003 has laid down essential ingredients required to be proved in case of an offence under Section 307 IPC. It was held that the offence under Section 307 IPC has all the ingredients of the offence of murder except death of the victim. It is not necessary that the SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 6 of 28 injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assault, the weapon used are relevant factors. The circumstances under which the injury was caused, the manner in which the injury was inflicted, whether the offence occurred out of a sudden quarrel, whether the injuries were caused voluntarily, the injuries caused on the victim were on vital or non-vital organs, whether the plan was pre-mediated to inflict the injury are also relevant factors. These are few of the ingredients among others and has to be looked into according to the facts and circumstances of the case. The relevant para are reproduced hereasunder:
xxxxxxxxxxxxx This position has been elaborately stated by this Court in Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381). Above being the position in law, when the facts are applied it becomes clear that all the accused person are liable in terms of Section 149 IPC. Looking at the nature of the injuries, weapons used and the manner of assaults, there was no reason to apply Section 326 IPC in case of accused-respondent No.1 alone. The trial Court had rightly convicted the accused persons under Section 302 IPC. The gruesome nature of the attack is amply demonstrated by the injuries noticed on the body of the deceased. One other aspect which was emphasized was that when prosecution version accepted PW-1 to be intended victim, Section 149 IPC cannot be invoked for deceased's murder. This plea has no legal foundation, when logic of Section 301 IPC is applied. Same reads as follows:
"Section 301- Culpable homicide by causing death of person other than person whose death was intended- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends or knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."
The provision is founded on a doctrine called by Hale and Foster, a transfer of malice. Others describe it as a transmigration of motive. Coke calls it coupling the event with the intention and the end with the cause. If the killing takes place in the course of SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 7 of 28 doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out.
Though Section 149 IPC may not in a given case apply to a case covered by Section 301, it would depend upon the factual background involved. No hard and fast rule of universal application can be invoked. In the facts of present case, as adumbrated supra, the essential ingredients of Section 149 have been amply established. Though initially the malice was focused on PW-1, the fact that all the accused chased and assaulted the deceased is a case of transfer of malice. The same was again pursued by coming back and attacking PW-1. So far as the assaults on PW-1 is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused- respondent No.1 under Section 307 IPC.
The essential ingredients required to be proved in the case of an offence under Section 307 are:-
(i) That the death of a human being was attempted;
(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;
(iii That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as;
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has been adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from legal infirmities and application of SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 8 of 28 legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence. xxxxxxxxxxxxxxxx 8.2 The prosecution has to prove that the accused had attempted death of a human being. One shot was fired by the accused which is so deposed by PW-3 that the accused had taken out a pistol from his right side and fired the same towards Ct. Parvinder and Ct. Prashant who had tried to apprehend him. Thereafter accused started running who has apprehended near gate no. 2 of metro station Jama Masjid. PW-3 has deposed that they had managed to snatch away the pistol from the possession of the accused Munshad. PW-3 has not depose specifically that which of the police officer has taken away the pistol from the hands of the accused. PW-6 Ct. Prahlad had deposed that he had seen one person/accused having pistol in his hand who was running towards Jama Masjid metro station at gate no. 2 and some public person were following accused. As per deposition of PW-6 some public person were following accused whereas PW-3 has deposed that police person were following the accused. Other than this PW-7 HC Prashant has deposed at page no. 5 of his cross-examination that no public person had chased the accused and the public person had only informed about the accused while they were chasing the accused. Hence it has created doubt in the case of the prosecution that who was chasing the accused. PW-7 has deposed in his examination-in-chief at page no. 2 that the accused had taken out the pistol from his left dub and fired towards Ct. Prashant and Ct. Parvinder whereas PW-3 at page no. 2 of his examination-in-
SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 9 of 28chief has deposed that accused had taken out his pistol from his right side and fired the same towards Ct. Parvinder and Ct. Prashant. This has further created doubt in the case of prosecution regarding the manner in which the accused was arrested and it has also created doubt in the case of prosecution that the accused had ever in possession of pistol with him. PW-8 HC Naveen has deposed that pistol was taken from the possession of the accused but it is not deposed that which of the police official has taken away the possession of pistol from the accused. It is deposed by PW-8 that the said police officials namely PW-7 Ct. Prashant and Ct. Parvinder were trying to take pistol from the hand of the accused whereas PW-7 HC Prashant has deposed that he and Ct. Parvinder had chased the accused. It is deposed by PW-7 that he had apprehended the accused by his hand and in the process of snatching pistol from accused he and accused had fallen down on the stairs of metro station due to which the accused had sustained injuries on his head and PW-7 HC Prashant had sustained injuries on his left hand and under arm. In these circumstances of the case it is doubtful whether Ct. Parvinder and Ct. Prahlad together had apprehended the accused and snatched the pistol or HC Prashant/PW-7 had snatched the pistol from the hands of the accused.
8.3 It is suggested in cross-examination to PW-3 that the accused was forcibly lifted from Shamli and accused was falsely shown arrested from Jama Masjid area. PW-3 in cross-examination has deposed that the secret informer had not given the description of the members of Mukeem Kala Gang which is in contradiction to examination-in-chief of PW-3 himself at page 1 that one secret informer informed him that some members of SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 10 of 28 Kala Mukeem Gang namely Munshad @ Anshu, Parvez and Sameer @ Chotu would be gathering at Jama Masjid area. It is deposed in cross- examination by PW-12 Insp. Mandeep that despite his efforts he could not trace the co-accused and the source of recovered pistol from accused Munshad. It is deposed by PW-12 that the pistol was not recovered in his presence from accused Munshad. PW-3 has deposed that the rough site plan Ex.PW3/E was prepared by him at the instance of SI Mandeep and SI Mandeep had joined the investigation at later stage when PW-3/ ASI Satish met PW-12 and handed him over sealed pulanda and documents prepared by him. By that time mobile crime team had already arrived at the spot. Hence PW-12 could not be witness to the recovery of pistol from accused Munshad nor he could have knowledge about what has transpired during such raid though he may state about the facts immediately after the incident available at the spot. Hence the site plan as such allegedly prepared by PW-3 at the instance of PW-12 as Ex.PW3/E is based on heresay evidence and it was not a preparation on the basis of what was actually seen by his own eyes by PW-12. Hence when direct evidence in this regard could be available and which is not produced and therefore no reliability could be place on Ex.PW3/E the site plan which is based on heresay evidence. The rule of production of best evidence is not followed.
8.4 Another important point to be noted is that the secret informer had already informed PW-3 that three members of Mukeem Kala Gang would be coming from Jama Masjid area. It was well within beforehand knowledge of the raiding team Incharge that three person would come and during such raid there is possibility of running of such three person SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 11 of 28 in three different directions despite of which the raid was not prepared in such manner so that other accused could also be apprehended at the spot. The manner of preparation of this raid shows that the raiding team had preparation regarding apprehension of only one of the accused and not of all the accused. It is not the case of the prosecution that any member of raiding team had even made any effort to run after and catch hold of the other co-accused. Other than this there is no narration in the site plan Ex.PW3/E that from where and in which direction the remaining two co- accused had ran thereafter. Hence the entire story of the police witness in absence of above necessary facts creates doubt about previous secret information with the police about arriving of three accused at Jama Masjid area.
8.5 Other than this there is no substance/evidence is produce by the prosecution on record to establish either the existence of Mukeem Kala Gang or relationship of other accused persons with the Mukeem Kala Gang. Hence there is doubt about availability of such correct information with the raiding team to apprehend the accused at Jama Masjid area. Other than the information about Mukeem Kala Gang there was also an information with the raiding team that the accused person coming at Jama Masjid would be having ammunition in heavy quantity and they would come for the purpose of robbery at Jama Masjid area. No such alleged ammunition in heavy quantity is shown to have been recovered during investigation. The prosecution has also failed to establish that from where the alleged pistol Ex.PW3/B could be sourced by the accused Munshad or that if it was easily available in the area where accused Munshad would have locally resided. Vide Ex.PW3/C submitted SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 12 of 28 by ASI Satish Kumar the accused has taken out pistol from left DUB and in his deposition it is deposed that the accused Munshad @ Anshu had taken out pistol from his right side. Hence this has created doubt even taking out of pistol at all by the accused to fire at police party/raiding team.
8.6 Ex.A-1 in FSL Report from Ballistics Division and Parcel No.1 duly sealed had contained 2 cottons swap sample collected from right hand and left hand of the accused marked as Ex.RH-1 and Ex.LH-1 in the laboratory. The result of examination mentions that the sample was analyzed though atomic absorption spectro photometer (AAS) for detection of gunshot residue / bullet residue. No opinion could be given due to insufficient data available on the said exhibit. This report goes in favour of accused as there is no reason for non-availability of gunshot residue on the hands of the accused as he was apprehended at the spot and without any gap in time and sample was collected at the earliest. Hence it creates doubt that the accused had ever fired at police persons from the seized gun.
8.7 Keeping in view the facts discussed above it is held that the prosecution has failed to establish by cogent evidence that accused has taken out pistol at all in the process of which he could have fired at the raiding party with the intention to cause death. The case of the prosecution has multiple improbabilities and inconsistencies which cannot conclusively establish the ingredients laid down under Section 307 IPC discussed above and hence it is held that prosecution has failed to establish ingredients of Section 307 IPC and accused Munshad @ SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 13 of 28 Anshu stands acquitted of the above offence.
9.1 The prosecution has to prove that the accused had used fire arm/pistol upon Ct. Parvinder and Ct. Prashant in contravention of Section 27 of Arms Act.
9.2 The evidence under Section 307 IPC above is also relevant for decision of possession of arms/pistol under Section 27 of Arms Act.It was held in 1986 Crl. LR (Rajasthan) 35 that where the prosecution fails to prove beyond doubt that accused used fire arm for the commission of offence then conviction under Section 27 of Arms Act would not be justified. It was held in (1982) 2 Chand LR (Crl.) 548 (555) Delhi that where the prosecution has merely alleged that the possession of dagger and knife by the accused was for use for unlawful purpose without any independent witness than conviction under Section 27 could not be sustained. In the present case also there is absence of independent public witness. Though the prosecution witness had deposed that the IO/PW-3 had asked 5-7 public witnesses to join the raiding party but none of them had joined. However in view of inconsistency pointed out above in the evidence of prosecution it has become incumbent on the part of prosecution to join public witness in absence of which the case of the prosecution has become doubtful. Other than this when the accused is acquitted under Section 307 IPC which is main offence and Section 27 of Arms Act is subjugate offence to the main offence in this case then conviction would not be maintained of the accused under Section 27 of Arms Act which is dependent offence on the same set of facts under Section 307 IPC. It was held in (1983) 23 Delhi Law Times SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 14 of 28 367 that where it is clearly established that the witnesses are not telling the truth then the involvement of accused with arms with the alleged intention becomes extremely doubtful on which accused would not be punished under Section 27 of Arms Act and accused would be entitled to benefit of doubt. Hence in absence of consistent evidence of the prosecution witness it cannot be said that the prosecution has successfully proved the possession of pistol with the accused. The prosecution witness by their evidence has rendered themselves untrustworthy.
9.3 It was held in 1991 Crl. LR (Rajasthan) 531 (DB) that where the fire arm expert has not taken micro photographs of some of the individual marks on the test cartridge and the evidence cartridge and thereafter submitted only conclusions without assigning any reason and mere recovery of pistol with an empty cartridge loaded in it and evidence regarding recovery of crime cartridge from the place of occurrence would not be sufficient to fasten the guilt on the accused. It was further held in (1997) 70 DLT 595 that where the evidence on record show that the knife was not used by the accused for the purpose of commission of alleged offence of robbery and it was only when the accused was chased and over powered then a knife was allegedly recovered from him then it would not attract either Section 397 IPC or Section 27 of Arms Act. (All number of citations are taken from the AIR Manual Civil & Criminal 6th Edition Vol. 2 by Manohar & Chitaley) 9.4 In the present case it is deposed by PW-3 that they managed to snatch the pistol from the possession of accused Munshad and he had not SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 15 of 28 specifically deposed that who among them had seized the pistol from accused Munshad then regarding such seizure no reliance can be placed upon PW-3. The PW-4 has not produced on record the photograph of breech face marks present on the evidence cartridge case marked as EC- 1 and on the test fired cartridge cases marked TC-1 and TC-2 due to which it has not produced on record by PW-4 for the purpose of comparison that how he had arrived about the identity of marks on the cartridge. What he had seen must be proved on record and the same is not proved by PW-4.
9.5 PW-8 at page 3 of his cross-examination has deposed that the accused was apprehended by Ct. Prashant and Ct. Parvinder. It is deposed by PW-8 at page 3 that when the said police official were trying to take pistol from the hand of the accused then in that process accused has used force and manhandled them. It is deposed that accused had sustained injuries when raiding team was trying to apprehend the accused and in that process Ct. Prashant had also sustained injuries. PW- 7 has deposed at page 2 of his examination-in-chief that he had apprehended hand of the accused and in the process of snatching pistol he scuffled with the accused. He and accused had fallen down on the stairs of metro station. PW-8 has not deposed that there was any such falling down on the stairs of metro station of PW-7 Ct. Prashant and accused. It is deposed by PW-8 that in the process of apprehension of accused injury was sustained.
9.6 The MLC of accused dated 29.08.2017 and his discharge summary dated 30.08.2017 are available on record. The documents are not SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 16 of 28 exhibited by the prosecution. However, the same can be perused as part of the documents of the prosecution. However the discharge summary is exhibited as Ex.A-1. It is noted that in the same fall at the stairs of metro station the accused has suffered multiple injury at right arm, right Abilla, right arm lateral aspect among multiple abrasions. The accused has also suffered injury on right temporal region and multiple bruise at thigh lateral level whereas Ct. Prashant Kumar/PW-7 in the same fall at the stairs of metro station has suffered a single bruise over back of left elbow. The explanation of prosecution on injury suffered by the accused is that public person had beaten the accused. It is strange that how accused who was already in the custody of police from whom pistol has already been taken over by the police then the public person could have come and beaten the accused moreso when no public person had joined that raiding team before conducting the raid and public person had also not joined the investigation even after the investigation.The PW-3 has asked the public person to join the investigation after the arrest of the accused and seizure of the pistol. Hence it appears strange that the same public person who were shying away to become public witness before or after apprehension of the accused had become so aggressive that they came together and had beaten the accused who was already in police custody on account of which accused has also suffered injury. The above story of the police could not be believed. If the accused is beaten by a public person in police custody then it reflects that the police has failed in giving safe custody to the accused. Further, the person who is giving injury on the head of the accused has also become an offender who must have been apprehended by the police. The person who were giving beating to the accused must have been apprehended by the police as they SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 17 of 28 were doing their acts in disobedience of order of raiding party/police. The deposition of the prosecution witness that the public person were asked to join the raiding team could not be believed in the circumstance that the same public person at one point are shying away to join the investigation and at other time they had readily beaten the accused during the investigation. Hence this creates doubt the manner in which the accused was apprehended by the raiding team/police of which there must have been independent witness who was not so joined by the prosecution. It is doubtful that there were three accused in view of deposition of PW-7 that all the accused started running towards Meena bazar RCC road and has failed to depose that in which other direction the remaining two accused person had fled away. Similarly PW-3 in his deposition is silent that how and in which direction the remaining two accused manage to run away and which member of police team were running after them. Hence it become doubtful that there were three accused at all.
10.1 The prosecution has to prove ingredients of Section 186/353 IPC for voluntarily obstructing Ct. Parvinder, Ct. Prashant, ASI Satish Kumar, HC Sanjeev Kumar and Ct. Naveen while they are discharging their public functions and accused used criminal force against them to deter them. Section 186 IPC has laid down ingredients and punishment for obstructing public servant in discharge of public functions. For the satisfaction of Section 186 IPC it must be shown that the public servant is doing something and he was obstructed in such doing by the accused. When alleged thief is running away and police is catching him then it cannot be said that the thief is obstructing the police from catching him.
SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 18 of 28The common man is expected to come and surrender to the police but still police has to catch the thief and prove it so till the thief is held guilty. Till the alleged thief is held guilty he is in a same position as a public person who did not join the raiding team and left without telling their name and address and who were not apprehended by the police. On such public person Section 186 IPC cannot be applied. Further, Section 186 IPC has to be read with Section 353 IPC in the present case. Section 353 IPC is discussed under para below.
10.2 The Hon'ble High Court of Madhya Pradesh in case titled Harendrajeet Singh vs. The State of Madhya Pradesh in Criminal Appeal No. 5697 of 2019 decided on 11.04.2023 has laid down necessary ingredients of Section 353 IPC. It is laid down that to attract the said offence it is duty of the prosecution to prove that there was assault with use of criminal force when the public servant was discharging his responsibilities. The definition of force is laid down under Section 349 IPC and criminal force is defined under Section 350 IPC. PW-7 has nowhere deposed that accused has assaulted him. However, it is deposed that in the process of snatching pistol from the hand of the accused he and the accused fell down on the stairs of metro station on which the accused has sustained injuries on his head. Hence as per the case of the prosecution the accused is not giving up his pistol and PW-7 was making effort to take away the pistol from the accused. In this process no criminal force on PW-7 is alleged to have been caused. Hence the force was used by the accused in not giving his pistol to the police and the police has to use force to take away pistol from the accused. As such there are no ingredients that the accused has used criminal force SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 19 of 28 upon PW-7. No attack was caused on PW-7 by the accused. Hence the necessary ingredient under Section 353 IPC are not proved on record and hence accused stands acquitted under Section 186/353 IPC. The relevant para no. 16 to 22 of the citation referred above are reproduced hereasunder:
16. Considering the rival contention of the learned counsel for the parties, it is clear that the basic contention has been put forth before this Court that in view of the statement of Ram Swaroop Pandre (PW-
1) (Complainant), as has been quoted hereinabove, the offence under Section 353 of IPC is not made out against the appellant. Therefore, to reach to a logical conclusion whether the appellant is guilty of offence under Section 353 of IPC or not, it is apt to consider and analyze the necessary ingredients of Section 353 of IPC, which deals with an offence of assault or use of criminal force to deter a public servant from discharging his official duties. Section 353 of IPC reads as under:-
"353. Assault or criminal force to deter public servant from discharge of his duty.--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."
17. The above Section very categorically provides that in order to attract the offence it is the duty of the prosecution to prove that there was assault or use of criminal force restraining public servant from performing his official duties or causing any act with intent to prevent or deter him from discharging his duty. Therefore, it is evident that to make out a case under Section 353 of IPC, the prosecution must meet essential requirements that a public servant must be assaulted or subjected to criminal force when he was carrying out his responsibilities; or with the goal of preventing or discouraging him from doing his duties.
18. To establish as to whether the appellant has assaulted the complainant or used any criminal force upon him, it is necessary to examine the definition of 'force', 'criminal force' and 'assault', which are defined in Sections 349, 350 and 351 of IPC, which are as under:-
Section 349: Force-- A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 20 of 28 or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:
First.--By his own bodily power.
Secondly.--By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly.--By inducing any animal to move, to change its motion, or to cease to move.
19. A reading of above Section makes it clear that a person is said to use force in any of the three methods mentioned above. The exertion of energy or power that causes a movement or change in the external environment is known as force. The term "force" as defined in this Section refers to force exerted by a person on another human. Section 350: Criminal force--Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
20. From perusal of the above section, it is clear that the force that has been specified in Section 349 changes into a criminal force when the essential of Section 350 are satisfied. The essentials of Section 350 are intentional/deliberate use of force against any one; without consent, when the claimed assault involves illegal conduct and the force has to be utilized in order to conduct an offence or to cause hurt or fear to another person.
Section 351: Assault-- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.--Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
21. In the present case, complainant Ram Swaroop Pandre (PW-1) SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 21 of 28 although indisputably is a public servant but he himself in his statement recorded before the court admitted that at the time of incident he was not performing any official duty and appellant had not created any hurdle or deter him from performing official duty, therefore it is distinctly clear that the required ingredients of Section 353 of IPC are not available in the present case and the prosecution in fact has failed to establish the material ingredients of Section 353 of IPC.
22. In this regard, the Supreme Court in the case of Manik Taneja (supra) in para10 has observed as under:-
"10. So far as the issue regarding the registration of FIR under Section 353 IPC is concerned, it has to be seen whether by posting a comment on the Facebook page of the traffic police, the conviction under that section could be maintainable. Before considering the materials on record, we may usefully refer to Section 353 IPC which reads as follows:
"353. Assault or criminal force to deter public servant from discharge of his duty.--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."
A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, the ingredients of the offence under Section 353 IPC are not made out." Further, in the case of P.V. Mathai (supra), the Kerala High Court has also considered this aspect and dealing with material ingredients of Section 353 has also observed as under:-
"7. Section 353 of IPC deals with an offence of assault or criminal force to deter a public servant from discharge of his official duty, which reads as follows:-
"Whoever assaults or uses criminal force to any person being a public SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 22 of 28 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."
8. A reading of the above provision would make it clear that in order to attract the offence, the prosecution is required to establish that there was assault or use of criminal force and such assault or use of criminal force was made on a public servant while he was acting in the execution of his duty or with intent to prevent or deter him from discharging his duty or in consequence of anything done or attempted to be done by him in the discharge of his duty. There is no doubt that the second respondent is a public servant and at the time of the alleged incident, she was discharging her official duty. But the crucial question is whether the petitioner has assaulted the second respondent or used any criminal force and whether the alleged act was done by the petitioner with intent to prevent or deter the second respondent from discharging her official duty.
9. The word 'assault' has been defined under Section 351 of IPC as follows:- "Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. " The explanation says that mere words do not amount to an assault.
10. A reading of Section 351 of IPC would show that the victim must apprehend that he who makes that gesture or preparation was about to use criminal force to the victim.
11. The word 'criminal force' has been defined under Section 350 of IPC as follows:-
"Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other."
12. The word 'force' has been defined under Section 349 of IPC as follows:-
A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 23 of 28 so situated that such contact affects that other's sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
13. In the case on hand, the prosecution has no case that the petitioner has used any force on the 2nd respondent. On the other hand, the case of the prosecution in short is that, after entering into the office room of the petitioner, the accused asked as follows:- "Who asked you to enter into my property, who is your authorized officer, who gave you the authority to enter into my land." Apart from uttering these words, there was absolutely no use of force or even an attempt to use force. Apart from the vague allegation that the official time of the 2nd respondent was lost on account of the alleged acts of the petitioner, there is no specific allegation that the above mentioned words were uttered by the petitioner with the intent to deter the 2nd respondent from discharging her duty.
In case of Jaswinder Singh (supra) Punjab and Haryana High Court while dealing with Section 353 of IPC has observed as under:-
"4. The learned counsel for the petitioners contended that offences under Sections 333, 332 and 353 I.P.C. have not been made out on a reading of the complaint. It is not the case of the prosecution that the police constable Davinder Singh was attacked while discharging his duties as a public servant or with any intent to prevent or deter the constable from discharging his duties as such public servant and, therefore, the offences under Sections 333, 332 and 353 I.P.C. are not attracted in this case. According to him, the averments in the complaint may amount to commission of offences under Sections 323 or 324 or under any other Section, which are not exclusively triable by the Court of Sessions. According to learned counsel, the offences under Sections 332, 333 and 353 I.P.C. came into play only when a public servant is discharging his duties as such and that if any injury is caused to him while discharging his duties in official capacity. According to him, it is not the case of the prosecution that at the time of the commission of the offence, the constable Davinder Singh was discharging any official duty because after performing his official duties, he had been simply returning to the police station in the bus during which time the alleged incident was said to have taken place.
5. It is to be seen whether the learned Additional Sessions Judge is correct in framing charges for the offences under Sections 332, 333 and 353 I.P.C. read with Section 34 I.P.C.
6. Sections 332, 333 and 353 I.P.C. read as follows:
"Section 332. 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 SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 24 of 28 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 333. Voluntarily causing grievous hurt to deter public servant from his duty. - Whoever voluntarily causes grievous 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 ten years and shall also be liable to fine. Section 353. Assault or criminal force to deter public servant from discharge of his duty. - 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."
7. A reading of the above Sections clearly shows that if a public servant while discharging his duties is attacked or any injury caused to public servant in the discharge of his duties or when any public servant prevented or deterred from performing his duties or when any public servant assaulted or any criminal force used against the public servant while he is executing his duties as such public servant, then only the above offences would attract. It is not the case of the prosecution that the accused caused hurt or assaulted the constable Davinder Singh while he was performing his duties as such public servant, or with intent to prevent him or deter him from discharging his duties. I am, therefore, of the opinion that the necessary ingredients to attract Sections 332, 333 and 353 I.P.C. are not present in the present case. The learned Additional Sessions Judge has not considered this aspect of the matter. The learned Additional Sessions Judge referred to a Supreme Court judgment in Manumiya v. State of Gujarat, reported in (1979) 4 SCC 717 : AIR 1979 SC 1706, but that decision is not applicable in this case as in that case the driver of the bus was prevented from entering into the bus to drive the bus, which is his duty, therefore, on the facts of that case, it has been held that the public servant was prevented from discharging his duty, namely, plying the vehicle, but such is not the case in the present one. There is no allegation anywhere in the complaint that the police constable was SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 25 of 28 prevented or deterred from performing his duty. There is also no allegation that he was hurt while performing his duty. Performance of duty had already been done by him by delivering dak at various places. He was coming back to the police station after performing his duties. Simply because the police constable happens to be a public servant, it cannot be said that he has been discharging his duties. It depends on the facts of each case whether a public servant can be said to be discharging his duties and whether the offences have been committed when the public servant has been discharging his duties. It is not even the case of the prosecution that the accused had knowledge that the constable was performing his duty. Therefore, it cannot be said that the accused with an intent to prevent or deter the complainant from discharging his duties, caused injuries to him. It cannot also be said that the accused caused hurt to the constable while he was discharging his duties. I am, therefore, of the opinion that Sections 332, 333 and 353 I.P.C. are not attracted in this case but the fact remains that it is the case of the prosecution that the accused beat the constable Davinder Singh on the date of the incident. It is also mentioned that his teeth were broken. It is also in the complaint that an iron rod has been used by the accused while attacking the constable. Therefore, it is for the Additional Sessions Judge to consider under what Sections the accused has to be charged with. I, therefore, feel that it is just and proper to set aside the impugned order of the learned Additional Sessions Judge and remand the matter back to him for reconsideration on the question of charges to be framed against the accused on the basis of the averments in the complaint and if he feels that any offence exclusively triable by a Court of Sessions is made out, he may try and proceed with the trial of the case after framing appropriate charges. If, he is of the opinion that the offences said to have been committed by the accused are not exclusively triable by the Court of Sessions, he may frame appropriate charges against the accused for these offences and send the matter to Chief Judicial Magistrate for trial as provided under Section 228 clause (1) of the Code of Criminal Procedure.
xxxxxxxxxxxxxx
11. Section 332 of IPC has laid down the necessary ingredients and punishment for voluntarily causing hurt to deter public servant from his duty. Section 353 IPC is graver form of Section 332 IPC. It is already held above that the accused is not guilty under Section 353 IPC and for the same reason it is held that the accused is not guilty under Section 332 SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 26 of 28 IPC as there are absence of necessary ingredient of use of force or causation of hurt by the accused on PW-7/HC Prashant.
12.1 The prosecution has to prove that the accused had possessed the unlicensed arm/pistol loaded with three live cartridge in contravention of Section 25 of Arms Act. The prosecution has alleged recovery of one loaded pistol and three live cartridges from the accused without valid licence. Keeping in view the facts already discussed above it is observed that the raiding team has ample time to join public witness before the raid and after conducting the raid. PW-3 had deposed that there was so many number of public witness that no one could walk properly on the path. It cannot be believed that with such availability of publc witness no one could have joined the raiding team other then this when there was so many people that it had become difficult to walk then the fire alleged shot by the accused in all probability could have hit any of the public person as such fire had occurred suddenly and quickly and without any warning to any public person whereas such fire had not injured any public person despite of so much rush that it was difficult to walk on public pathway. Hence it has become doubtful that pistol was recovered from the accused or that the accused had used that pistol against the police person.
12.2 Other then this the police had failed to show any connection of the accused with Mukim Kala Gang on the basis of which the alleged raid was conducted. No heavy ammunition was recovered from the accused. The case of the prosecution is full of inherent improbabilities, infirmities and contradictions discussed above in the the manner in which the SC No. 221/2018 FIR No. 144/2017 State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 27 of 28 accused was apprehended, injury sustained by the accused. The alleged use of the pistol by the accused, the manner of conducting raid specific to the accused alone, non-joining of public witness and the evidence discussed above in view of which it is held that the prosecution has failed to prove the charge leveled against the accused person under Section 186/353/332/307 of IPC & Section 25/27/54/59 of Arms Act and therefore it is held that the accused is entitled to benefit of doubt which is granted to him.
13. Hence the accused Munshad @ Anshu @ Pehalwal @ Farukh is acquitted of all the offence charged against him and it is held that prosecution has failed to prove the charge levelled against the accused. Accordingly, the accused Munshad @ Anshu @ Pehalwan @ Farukh stands acquitted. In terms of Section 437A Cr. P. C., accused is allowed to be released on bail on furnishing of personal bond in a sum of Rs.10,000/- only which is furnished and stands accepted. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally
JOGINDER
signed by
Announced in the open court PRAKASH PRAKASH NAHAR
Date: 2024.02.23
on dated 23.02.24 NAHAR 15:35:37 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/23.02.24
SC No. 221/2018
FIR No. 144/2017
State Vs. Munshad @ Anshu @ Pehalwan @ Farukh Page 28 of 28