Delhi District Court
Lalit Trikha vs The State on 16 January, 2008
IN THE COURT OF Ms. ANU MALHOTRA, ASJ,
PATIALA HOUSE COURTS, NEW DELHI
Criminal Appeal No. 3/07.
Lalit Trikha Vs The State
S/o Sh. J.N. Trikha
R/o C-124, DDA Flats,
Saket, New Delhi - 110 017
JUDGMENT:-
This Judgment shall dispose of an Appeal U/s. 374 (3) (a) of the Cr. P.C. 1973 filed by the appellant against the impugned judgment dated 05.09.2007 in FIR No. 564/1999 P.S. Sri Niwas Puri and against the impugned order on sentence dated 01.10.2007 of the Ld. Trial Court whereby the accused, the appellant herein having been convicted for an offence punishable U/s. 353 IPC, 1860, was sentenced to simple imprisonment of one year and also to pay compensation of Rs.5,000/- to the complainant.
Vide order dated 30.10.2007 in the present appeal, the appellant was directed to deposit the said amount of Rs.5,000/- awarded as compensation vide order dated 01.10.2007 of the Ld. Trial Court, in the Ld. Trial Court on the date 02.11.2007 with directions, that the release of the said compensation amount to the complainant would be subject to the decision in the present appeal.
The Trial Court Record has been received and perused. The said amount of Rs.5,000/- has been deposited by the appellant as per 1 the Trial Court Record.
Arguments on the appeal were addressed on behalf of the accused by his Ld. Counsel Mr. J.P. Singh, Sh. Sanjeev Kumar and Sh. Naresh Bhola and on behalf of the Respondent by the Addl. PP for the State, Sh. R.S. Negi.
As per the prosecution version set forth in the police report U/s. 173 of the Cr. P.C. 1973, on 18.11.1999 at about 9.30 AM on the Capt. Gaur Road, in front of the Modi Mills Flyover within the jurisdiction of Sri Niwas Puri, the appellant came driving a Honda City bearing No. UP 16A - 5340 from the side of the Modi Mill Flyover and allegedly jumped a red light traffic signal and was stopped by ASI Mewa Lal, the ZO in the traffic circle and at that time, the ZO ASI Mewa Lal challaned the accused for having violated the red light signal on which the accused abused ASI Mewa Lal and grappled with him (the words used in the FIR being 'hathapai') and that thereafter, Ct. Bhola Prasad No. 858/T who was also on duty with ASI Mewa Lal came from the Kalkaji Circle and freed ASI Mewa Lal from the appellant. It was further submitted in the FIR by ASI Mewa Lal that the accused i.e. the appellant herein had obstructed ASI Mewa Lal in discharge of his official duty and grappled with him but he, ASI Mewa Lal had not sustained any injury.
In support of the prosecution version, the State examined the complainant the SI Mewa Lal on 14.09.2005 and the alleged eye witness Ct. Bhola Prasad as PW2 on also on 14.09.2005. PW3 2 examined was W,ASI Nirmala Kumari, the Duty Officer who registered the FIR and PW4 examined by the State SI P.C. Yadav, the Investigation Officer of the case. The appellant did not chose to conduct the cross examination of the Duty Officer nor the Investigating Officer despite an opportunity having been given for cross examination. SI Mewa Lal and Ct. Bhola Prasad through their testimonies corroborated the prosecution version that the appellant had violated the red light traffic signal at the given time and place and the accused/appellant was also challaned for the same after the Honda City Car No. UP 16A 5340 driven by the accused/appellant had been stopped for violating the red light traffic signal. The testimony of SI Mewa Lal is categorical to the effect that the accused/appellant abused him and grappled with him. The testimony of Ct. Bhola Prasad also states specifically that the accused i.e. the appellant herein manhandled SI Mewa Lal (as he then was)and that Ct. Bhola Nath had separated the accused i.e. the appellant herein from ASI Mewa Lal. The testimonies of both SI Mewa Lal and Ct. Bhola Nath corroborate each other that someone informed the police and the PCR, police reached there and that the statement of the ASI Mewa Lal was recorded and then the accused is arrested.
The State also produced the challan book of a series no. 068701 to 068750 and the accused was challaned. The said challan book was produced by the State before the Ld. Trial Court as Ex.P1 Colly.
3It was also testified by ASI Mewa Lal that the copy of the challan which was given to the accused was torn by him. Both SI Mewa Lal (ASI at the time of the occurrence) and Ct. Bhola Ram categorically denied that the accused i.e. the appellant herein had not grappled with ASI Mewa Lal when he had stopped the accused / appellant while he jumped the red light traffic signal.
Through his statement U/s. 313 of the Cr.P.C. 1973, the accused i.e. the appellant herein stated before the Ld. Trial Court that ASI Mewa Lal was not present at the spot and inter alia whilst denying that he had prevented ASI Mewa Lal from discharging his duty also denied that he had abused and grappled with ASI Mewa Lal and though the accused/appellant denied the presence of the Ct. Bhola Prasad at the spot, the accused/appellant did not challenge the presence of ASI Mewa Lal and Ct. Bhola Prasad at the time of occurrence during the cross examination of the two witnesses. The accused i.e. the appellant herein further stated in the Ld. Trial Court that he had been challaned for Rs.100/- and in view of the same he, the accused/appellant, Lalit Trikha had asked for a receipt of Rs.100/- which was not given to him and that forcibly signatures on blank papers and documents of the accused/appellant were taken. The appellant stated in his statement U/s. 313 of the Cr.P.C. 1973 before the Ld. Trial Court that he has been falsely implicated in the case for taking revenge for asking of the receipt of challan of Rs.100/-. The appellant also denied in his statement U/s. 313 of the Cr.P.C. 1973 4 that he had used any force to any traffic police personnel and denied that he abused anyone.
Through the appeal, it has been contended that the accused i.e. the appellant herein was not given an opportunity to lead evidence in defence and that the same was vitiated. The Trial Court Record and the statement of the accused/appellant herein dated 20.09.2007 U/s. 313 of the Cr.P.C. belies this contention as the accused/appellant categorically declined to lead any defence evidence before the Ld. Trial Court.
A further contention has been raised on behalf of the appellant that the ingredients of section 353 of the IPC, 1860 were not established in the instant case in as much as admittedly no injury was caused to SI Mewa Lal and that the prosecution had not established the user of any force much less criminal force by the accused/appellant in order to deter any public servant in the discharge of his public duties. Reliance was placed on behalf of the appellant on the verdict of the Hon'ble High Court of Guahati in the case of Suresh Narayan Roy Vs. State of Arunachal Pradesh reported in 1978 Cri. L. J. 1514 to contend that if there is an assault on a public servant which is not committed in consequence of anything done or attempted to be done as a public servant but due to any personal grudge against him, a conviction U/s. 353 of the IPC, 1860 could not be sustained. Reliance has also been placed on behalf of the appellant on the verdict of Hon'ble High Court of Assam in the matter 5 of Mahendra Singh Anr. Vs. State reported in AIR 1960 Assam 206 to contend that where a person resists an attempt of being arrested by a complainant and in that process, the complainant receives injuries, the accused cannot be held guilty punishable U/s. 353 or U/s. 352 of the IPC, 1860. Reliance was also placed on behalf of the appellant on the verdict of the Hon'ble High Court of Andhra Pradesh in the case of T. Rama Rao Vs. State of Andhra Pradesh reported in 1984 Cri. L.J. 27 to contend that where when a police officer asked to an accused to stop his car, the accused fled away and in that process hit the motorcycle of a police officer, an offence of assault on a public servant or using a criminal force so as to deter him from discharging his duties as public servant were not brought forth.
Written arguments were also submitted on behalf of the appellant to the same effect to contend that the ingredients of section 353 of the IPC, 1860 were not established.
As regards this contention raised on behalf of the appellant, the prosecution version brought forth through the testimonies of SI Mewa Lal and Ct. Bhola Prasad is categorical to the effect that the appellant herein grappled with and manhandled with ASI Mewa Lal, the Zonal Officer when the said public servant stopped the Honda City Car driven by the appellant for violating a traffic signal and challaned him.
Section 353 of the IPC, 1860 lays down as follows 'Assault or criminal force to deter public servant from discharge of his duty 6
- 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'.
Thus, both assault or user of criminal force to 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 public duty as such public servant is made culpable U/s. 353 of the IPC, 1860.
Section 351 of the IPC, 1860 defines assault as follows - '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 to an assault' Section 349 and 350 of the IPC, 1860 define Force and Criminal Force as follows:-
7'349 Force - A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, 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 inducting any animal to move, to change its motion, or to cease to move.' '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'.8
The available records speaks eloquently through the testimonies of SI Mewa Lal and Ct. Bhola Prasad, that the accused /appellant herein had manhandled and grappled with ASI Mewa Lal (as he then was) on his having stopped the car driven by the accused on violation of a red light traffic signal and on the accused being challaned by ASI Mewa Lal (as he then was). It is apparent thus that there was user of both criminal force and an assault was also made by the accused against a public servant in consequence of the lawful discharge of duties by ASI Mewa Lal as he then was as such public servant. The facts of the cases relied upon on behalf of the appellant are not in pari materia with the facts in this case.
As regards the contention made on behalf of the appellant that the pieces of the allegedly torn challan, allegedly torn by the accused were not seized, in view of the admission of the accused/appellant of his having been challaned, the non-seizure of the torn pieces of the challan does not fatally affect the prosecution version.
As regards the defence raised by the accused/appellant in the statement U/s. 313 of the Cr.P.C. 1973, that he has been falsely implicated in the case because he had asked for a receipt of Rs.100/- for which he had been challaned, it cannot be overlooked that this defence was not put to ASI Mewa Lal (as he then was) nor to Ct. Bhola Prasad nor to SI P.C. Yadav by the accused and is thus rendered nugatory.
It is thus apparent that the verdict of the Ld. Trial Court 9 convicting the accused U/s. 353 of the IPC 1860, cannot be faulted with, and is thus upheld.
However, as regards the quantum of sentence imposed, taking into account the factum that the accused/appellant had no previous antecedents against him and coupled with the factum that the offcence U/s.353 of the IPC 1860, for which the appellant had been convicted is punishable with imprisonment for a term which may extend to two years or with fine or with both, it is considered appropriate that the offender be released on probation of good conduct in terms of section 4 (1) of the Probation of Offender's Act, 1958, subject to the offender filing a probation bond for Rs.10,000/- with one surety in the like amount to the satisfaction of the Ld. Trial Court for a period of two years, during which period, the offender is directed to keep peace and be of good behaviour. Further more, in terms of Section 5 of the Probation of Offender's Act, 1958, the amount of Rs.5,000/- deposited by the offender pursuant to order dated 30.10.2007 of this Court in terms of order dated 01.10.2007 of the Ld. Trial Court, is directed to be treated as compensation that the Court thinks reasonable for the mental trauma caused to ASI Mewa Lal (as he then was) by the commission of the offence by the offender in terms of Section 5 (1) (a) of the Probation of Offender's Act, 1958. In view thereof, the amount of Rs.5,000/- directed herein above to be paid as compensation to the complainant now, SI Mewa Lal is thus directed to be released to the said complainant by the Ld. Trial Court.10
The appeal is thus disposed of accordingly. The appellant is directed to appear before the Ld. Trial Court on 17.01.2008 and a copy of this order be sent to the Ld. Trial Court forthwith and the Trial Court Record be also returned. The records of the appeal be consigned to the Record Room.
Announced in the open Court (ANU MALHOTRA)
today the 16th day of January, 2008 ASJ/NEW DELHI
16.01.2008
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