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Fir No. 44/2010, Ps : Gulabi Bagh State vs . Sandeep on 28 June, 2019

FIR No. 44/2010, PS : Gulabi Bagh                    State Vs. Sandeep



       IN THE COURT OF MM­08 (CENTRAL DISTRICT)
           TIS HAZARI COURTS COMPLEX, DELHI.

Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :

State Vs Sandeep
FIR No. 44/2010
PS : Gulabi Bagh
U/s 186/353 IPC
Date of Institution        : 05.04.2011
Date of reserving of order : 04.06.2019
Date of Judgment           : 28.06.2019
CNR No. DLCT02­000635­2011
JUDGMENT

  1.    Serial No. of the case            : 292795/2016
  2.    Name of the Complainant           : Ct. Chanderpal
  3.    Date of incident                  : 22.06.2010
  4.    Name of accused person            :
              Sandeep S/o Sh. Balraj
              R/o H. No. 439, Kashmiri Bagh, Kishan
              Ganj, Delhi.
  5. Offence for which chargesheet
     was filed                   :S. 186/ IPC
  6. Offence for which charge
     has been framed             : S. 186/ IPC
  7. Plea of accused             : Not guilty

Page    1 of 16                     MM­08 (C)/THC/Delhi/28.06.2019
 FIR No. 44/2010, PS : Gulabi Bagh                    State Vs. Sandeep



     8. Final Order                       : Acquitted
     9. Date of Judgment                  : 28.06.2019

BRIEF REASONS FOR ORDER:

1. Mr. Sandeep, the accused herein, has been chargesheeted for committing offences punishable under Section 186/353, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 22.06.2010 one PCR call was received by police official. Thereafter complainant Ct. Chanderpal and HC M.A. Khan, who were posted on duty at a PCR van reached at H. No. 439, Kashmiri Bagh, Kishan Ganj, Delhi to attend the PCR call. There they found the accused fighting with his family members. Ct. Chander Pal and HC M.A. Khan had apprehended him and try to pacify him. However, the accused caught hold of the flap of the shoulder part of the uniform of the complainant. Due to said act his uniform was torn. On the basis of complaint, present FIR had been registered. After investigation, the IO filed a Final Report under Section 173, Cr.P.C. and the accused was Page 2 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep chargesheeted for the offences punishable under Sections 186/353, IPC.

3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishale under Section 186/353 IPC was framed to which the accused pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 10 witnesses to prove its case against the accused persons.

5. PW­1 Ct. Chanderpal is the complainant. He has deposed that on 22.06.2010, he was posted at PS :

Gulabi Bagh as Constable and on the said date, he alongwith HC M.A. Khan was on duty at Sugar 99 PCR. At about 8 :30 p.m., they received a call regarding the quarrel at H. No.439, Kashmere Bagh, near Police Post, Gulabi Bagh. He alongwith M.A. Khan reached on the spot i.e., H. No. 439, Kashmere Bagh, near Police Post, Gulabi Bagh on motorcycle no. DL­1SN­8779 where they met with one boy who was rioting/shouting i.e., Balwa and was also fighting Page 3 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep with his family members. He with the help of HC M.A. Khan apprehended that boy and tried to pacify him. However, the accused started manhandling with him. The accused caught hold of flap of the shoulder part of his uniform and the uniform from the neck and therefore the uniform was torn. Meanwhile, IO came at the spot and apprehended the accused took him to the police post. IO recorded his statement which is Ex.PW1/A. IO seized his uniform vide memo Ex. PW1/B. He had refused for medical examination. He identified his shirt in the Court which is Ex.P­1.

6. PW­2 Ms. Sarita was cited as an eye witness. She has deposed that accused Sandeep is his brother. He used to harass her and to demand money. She had called the police on that day. However, the police officials came and started beating the accused and their uniform got torn.

7. The witness was declared hostile by the State. Ld. APP cross­examined the witness. She has admitted that on 22.06.2010 police had come on her complaint. However, she denied the suggestion that started scuffling with the police.

8. PW­3 Ct. Gurudayal was the DD writer. He has Page 4 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep deposed that on 22.06.2010 at about 8 :05 p.m., HC Mulki Raj alongwith Constable Yogesh had arrived at PS who had earlier departed the PS on patrolling vide DD No. 13B on Sugar 99 duty. In the meantime HC M.A. Khan alongwith Constable Chanderpal departed for duty on Sugar 99 in PS area. The said information was recorded at Sl. No. 35B dated 22.06.2010. Copy of the same is Ex. PW3/A.

9. PW­4 Ct. Prashant is the police official who has produced the PCR call record. He has produced the order of Addl. DCP of Police Control room of destruction of record w.e.f., from 01.01.2010 to 30.06.2010, which is Mark PX. He has also produced the certificate regarding destruction of the record issued by ACP, PCR Line, Model Town,Delhi Mark PX1 and the application which was moved for destruction of the record is Mark PX2.

10. PW­5 HC Surender Singh is the police official who had participated in the investigation. He has deposed that on 22.06.2010 after receiving DD No. 23 PP, he alongwith Ct. Ishwar Singh reached at the spot i.e., H. No. 439, Kashmiri Bagh, Kishan Ganj, Delhi where they met with HC M.A Khan, Ct. Chanderpal and the accused Sandeep. The accused was apprehended by the Ct.

FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep Chanderpal and HC M.A Khan. Ct. Chanderpal had produced his uniform i.e. shirt having torn from the left side shoulder and front side two buttons were also broken. He recorded the statement of Ct. Chanderpal. He put the uniform in a white piece of cloth and prepared the pullanda sealed with the seal of SS. Seal after use was handed over to Ct. Ishwar. The seizure memo is Ex.PW1/B. Thereafter, he prepared the rukka and sent it to the PS for registration of FIR through Ct. Ishwar. His endorsement on rukka is Ex. PW5/A. After sometime second IO Daljit Singh came at the spot to whom he handed over the sealed pullanda and custody of accused.

11. PW­6 HC M.A.Khan is the police official who was on the patrolling with complaint Ct. Chander Pal. He has deposed similar to PW­1.

12. PW­7 HC Ishwar Singh is the police official who had participated in the investigation. He has deposed similar to PW­5.

13. PW­8 ASI Sunil Kumar was the Duty Office at the relevant time. He has deposed that on 22.06.2010, he was posted as HC at PS : Gulabi Bagh. On that day, he had received a rukka from Ct. Ishwar at about 9 :50 p.m. On the basis of rukka, he registered the FIR and handed over Page 6 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep Tehrir and copy of FIR which is Ex. PW8/A (OSR) to Ct. Ishwar for further course of action. He has also made endorsement on the rukka from point A1 to A2 which is Ex. PW8/B. He also issued certificate under Section 65 B of Indian Evidence Act, which is Ex.PW8/C.

14. PW­9 ASI Raj Kumar is the MHC (M). He has deposed that on 22.06.2010, HC Surender handed over him one pullanda sealed with the seal of SS. He made entry in register no. 19 at Sr. No. 708, photocopy of the same is Ex. PW9/A (OSR).

15. PW­10 Retd. SI Daljit Singh was the IO of the case. He has deposed that on 22.06.2010, the investigation of the present case was marked to him. Thereafter, he alongwith Ct. Ishwar Singh reached at the spot i.e., H. No. 439, Kashmere bagh, where he met with HC Surender alongwith accused Sandeep, HC M.A Khan & Ct. Chander Pal. Ct. Ishwar Singh had already handed over him the original rukka and copy of FIR. HC Surender had handed over him one sealed pullanda with the seal of SS alongwith the accused and seizure memo. Thereafter, he prepared the site plan at the instance of Ct. Chander Pal and the same is Ex. PW­10/A. Thereafter, he arrested accused Sandeep vide memo Ex. PW­7/A. He also Page 7 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep conducted personal search of the accused vide memo Ex. PW­7/B. Thereafter, he recorded the statement of witnesses and returned at the PS. The case property was handed over to MHC(M). He had prepared the challan and submitted before the concerned Court.

16. All the witnesses were cross­examined. The accused admitted the DD No. 23PP, PS : Gulabi Bagh dated 22.06.2010, which is Ex.PW5/B.

17. The prosecution evidence was closed. Accused was examined under Section 313 Cr. P.C., r/w Section 281 Cr. P.C. The accused denied the incriminating evidence. He would state that the police officials had beaten him . They had demanded money from him and from his sister. When they did not pay the money he was taken to the police post and he was locked up. The police officials had also threatened that they would keep him in Jail for long time. He would state that he was innocent.

18. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.

19. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was involved in the Page 8 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep incident. It has also been proved that he had prevented the complainant i.e., public servant from discharging his official duty. He had also assaulted or used criminal force to deter the complaint from discharging his duty. Hence, the prosecution has proved all the ingredients of the offences and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.

20. Ld. Defence counsels, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The police officials are interested witnesses. They have deposed falsely against the accused as he had not paid money to the police officials. The sister of the accused has narrated the truth. The accused is innocent. Hence, it is prayed, the accused may be given benefit of doubts and he may be acquitted.

21. I have heard the rival submissions and carefully perused the material available on record.

22. In a criminal case the initial burden is on the prosecution to prove the guilt of the accused beyond Page 9 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep reasonable doubts before the accused is asked to prove his defence. It is also settled position of law that in case of possibility of two versions of a case, the version which favours innocence of accused is to be accepted by the Court.

23. In the present case, the accused has been charged for offences punishable under Section 186/353 IPC.

24. Section 186, IPC provides punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 195 Cr.P.C bars cognizance of an offence punishable, inter alia, under Section 186 IPC except or a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

25. In the present case, no separate complaint under Section 195 Cr.P.C, has been made by the complainant Ct. Chanderpal or by any of his Sr. Officer. In these circumstances, the accused can not be tried for an offence punishable under Section 186 IPC. The accused is therefore acquitted qua offence punishable under Section 186 IPC.

FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep

26. A complaint under Section 195, Cr.P.C., is not required for prosecution of offence under Section 353 IPC. Section 353, IPC, provides punishment for assaulting or using criminal force to any person being a public servant in execution of his duty as such public servant, or with intent to prevent or deter such public servant for discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharged of his duty as such public servant. To establish an offence under Section 353, IPC, the prosecution must prove that:

1. the accused had assault or used criminal force to a public servant;

2. the said public servant, at the time of being hurt, was discharging his duty as such public servant, or,

3. the hurt was caused with intent to prevent or deter that public servant or from discharging his duty as such public servant, or

4. the hurt was caused in consequence of anything done, or attempted to be done, by that public Page 11 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep servant in the lawful discharge of his duty as such public servant.

27. In the present case, the complainant Ct. Chanderpal, PW­1, Ms. Sarita, PW­2 and HC M.A. Khan, PW­6 have been examined as eye witness of the alleged incident. PW­1 Ct. Chanderpal has deposed that he alongwith HC M.A. Khan had reached at the spot to attend the PCR call. Admittedly the call was made by PW­2 Ms. Sarita. PW­1 has stated that he had apprehended the accused with the help of HC M.A. Khan. They were trying to pacify him. However, the accused had caught hold of flap of his uniform and due to said act the uniform was torn. PW­6 HC M.A. Khan has also stated that the accused had pounced upon Ct.Chanderpal and torn the cloth of shoulder part of his uniform.

28. PW­2, Ms.Sarita, on the other hand has stated her in examination that the police officials after reaching at the spot had started beating the accused and during such beating activity, shirt of police official got torn.

29. The testimonies of the eye witnesses, if read in entirety, do not show beyond reasonable doubts that the accused had assaulted or used criminal force to the Page 12 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep complainant. It is also possible, as deposed by PW­2, that during the activity of stopping the accused, the flap of the uniform of the complainant might have been torn. There does not appear any intention on the part of the accused to assault or to use criminal force. It is settled position of law whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.

30. It is also worth noting that as per the prosecution witnesses PW­5 HC Surender Singh had reached at the spot and sealed the torn uniform in a pullanda with the seal of SS. Thereafter, he prepared a tehrir and it was sent to PS for registration of FIR. It is, therefore, clear that the seizure memo of the torn shirt was prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of the seizure memo Ex.PW­1/B. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memo which came Page 13 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep into existence before registration of the FIR. However, interestingly, seizure memo Ex. PW­1/B bears the FIR number and case details. None of the witness has mentioned in the evidence that they had mentioned the FIR number later on. The same indicates that FIR number was mentioned on the said document while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:

"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how Page 14 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."

31. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex. PW­1/B. The same leads to only one conclusion that either the said document was prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution.

32. Further, as per the testimonies of the prosecution witnesses, the shirt was sealed with the seal of SS. PW­5 has stated that he had handed over the seal to Ct. Ishwar after use. However, no handing over memo of the seal has been brought on the Court record. Thus, in the absence of any evidence, it is shown by the defence, on the balance of probabilities, that the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of Page 15 of 16 MM­08 (C)/THC/Delhi/28.06.2019 FIR No. 44/2010, PS : Gulabi Bagh State Vs. Sandeep its misuse. Thus, the possibility that the case property might have been tampered with cannot be ruled out.

33. In the light of the discussion hereinabove, I hold that the material on record is not sufficient to prove beyond reasonable doubts that the accused had assaulted or used criminal force upon the complainant. In any case, the testimony of PW­2 Ms.Sarita can not be ignored completely. Her testimony has raised reasonable doubts on the testimony of PW­1 and PW­6. In such circumstances, I hold that the prosecution has failed to prove its case beyond reasonable doubts against the accused. The accused is entitled to the benefit of reasonable doubt as per law. Therefore, the accused is acquitted of the charges framed against him.

34. The accused has already furnished his bonds under Section 437­A Cr.P.C alongwith surety, his ID proof and the photograph. Digitally signed by DINESH DINESH KUMAR KUMAR Date:

2019.06.28 17:16:23 +0530 Pronounced in the open Court on (Dinesh Kumar) this 28th Day of June 2019. MM­08 (Central) Tis Hazari Courts, Delhi Page 16 of 16 MM­08 (C)/THC/Delhi/28.06.2019