Delhi District Court
State vs . Mohd. Aslam 1/8 on 12 October, 2012
IN THE COURT OF SH. NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1. FIR No. : 35/00
2. Date of Offence : 27.01.2000
3. Name of the complainant : Ct. Narender Singh
4. Name, parentage and Address
of the accused : Mohd. Aslam
S/o Mohd. Haneef
R/o 16/303, Tank Road, Bapa
Nagar, Delhi.
5. Offences charged with : Section 186/353 of IPC.
6. Plea of the accused : Pleaded not Guilty.
7. Sentence or final order : Accused is acquitted.
8. Date of order : 12.10.2012
JUDGMENT
1. The allegations against the accused is that on 27.01.2000 about 4:00 pm in front of Gurudwara, Gurudwara Road, Karol Bagh, accused had obstructed, assaulted and used criminal force to Ct. Narender Singh No. 2953 Traffic, who was on duty and was pasting the notice of no parking, in order to deter him from discharging his duty as public servant. On the said allegations, the accused was charged with offences under Section 186/353 of the Indian Penal Code (for short 'IPC').
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to the accused in compliance of FIR No. 35/00 PS: Karol Bagh State Vs. Mohd. Aslam 1/8 Section 207 Cr. P. C. Thereafter, charge was framed against the accused under Section 186/353 IPC to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 6 witnesses. PW-1 HC Shamsher tendered FIR, copy of which is Ex. PW-1/A. PW-2 Insp. Shiv Prashad Joshi submitted that on 27.01.2000, he was posted as TI Pahar Ganj; on that day, he also looked after the charge of TI of Karol Bagh Circle; he received information that one quarrel was happened with Ct. Narender Kumar No. 2953 Traffic at Gurudwara Road, Karol Bagh near Bikaner Chowk; on the complaint of Ct. Narender, case FIR No. 35/00 was lodged in PS Karol Bagh. He had given complaint u/s. 195 Cr.P.C. Ex. PW-2/A to this effect to the IO of case FIR No. 35/00.
PW-3 Ct. Narender submitted that on 27.01.2000, he was on duty at Bikaner Chowk to Gurudwara Road; at that time, the said road was no parking zone; one TSR bearing no. DL-1RC-3964 was standing in front of gurudwara; he was filling up notice; accused Mohd. Aslam who was not present in the Court had started abusing him as he was trying to park his vehicle for the repair as his shop was inside the gali; he started beating him; in the meantime, beat constable Kanwar Pal came there and intervened the matter and escaped him; but accused did not stop abusing; public persons were gathered at the spot; Ct. Kanwar Pal called other police officials from PS Karol Bagh. ASI Sushila came there and recorded his statement vide Ex. PW-3/A and got registered the case FIR through one constable. He tendered personal search FIR No. 35/00 PS: Karol Bagh State Vs. Mohd. Aslam 2/8 memo vide Ex. PW-3/B. PW-4 HC Kanwar Pal submitted that on 27.01.2000, he was present at picket at Gurudwara Road; some public person told him that there was a scuffle between a police person and an accused; at around 4:00 pm, he reached on the spot; he saw that accused and police person were fighting; he tried to pacify the matter and calm down the said public person. He could not say that the said public person was present in the Court or not. He could not say that accused Aslam present in the Court was the same person who was handed over by them to the police.
PW-5 W/SI Sushil Yadav submitted about the steps taken by her during investigation. On 27.01.2000, she alongwith Ct. Satya Parkash were returning to PS after attending the case vide DD No. 16 and when they reached at Gurudwara Road in front of Gurudwara, Karol Bagh, Delhi; they saw that accused Mohd. Aslam was scuffling with traffic Ct. Narender Singh; she with the help of Ct. Satya Prakash got Ct. Narender Singh released from the accused. She recorded the statement of Ct. Narender vide Ex. PW-3/A and made her endorsement vide Ex. PW-5/A and got the FIR recorded through Ct. Satya Prakash. She prepared site plan vide Ex. PW-5/B and arrested the accused vide his arrest memo Ex. PW-5/C and personal search memo Ex. PW-3/B. The concerned Taffic Inspector was also called at the spot to give her a written complaint u/s. 195 Cr.P.C. She got the accused medically examined through Ct. Satya Prakash. PW-6 Ct. Satya Parkash submitted on the similar lines as deposed by PW-5.
FIR No. 35/00PS: Karol Bagh State Vs. Mohd. Aslam 3/8
4. After conclusion of evidence, statement of accused was recorded wherein he claimed to be innocent and denied the allegations against him. He stated that the impugned incident did not occur in the manner put forward by the prosecution and its witnesses. He had been falsely implicated in this case. However, accused did not opt to lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Ld. APP argued that PW-3 Ct. Narender, PW-4 HC Kanwar Pal, PW-5 W/SI Sushil Yadav and PW-6 Ct. Satya Parkash had supported the case of prosecution on material particulars. In these circumstances, the prosecution has proved its case against the accused beyond reasonable doubt.
7. Ld. Defence Counsel argued that PW-3 and PW-4 did not identify the accused before the Court; PW-5 and PW-6 did not utter anything about presence of PW-4 at the spot which was in contradiction with the testimony of PW-3 and PW-4; further, the prosecution did not provide any cogent reason as to why PW-3 was not got medically examined; further, investigating officer did not join any independent witness into the investigation. He lastly submitted that considering the testimony of prosecution witnesses, it is clear that the accused was falsely implicated in the present case.
FIR No. 35/00PS: Karol Bagh State Vs. Mohd. Aslam 4/8
8. Firstly, the legal position applicable in cases pertaining to offences punishable under Section 353 IPC has been explained by the Hon'ble Kerala High Court in Mohammed Kutty v. State of Kerala, 2004 Cri. L. J. 1603, that:
5. Section 353 of the Indian Penal Code says that whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant is punishable as stated in that section. PW.2 is a public servant but at the time when the occurrence took place near the Check Post, Tholpetty he was not in the execution of his duty as such public servant. In order to attract Section 353 of the Indian Penal Code, it must be proved that the person who was assaulted or against whom criminal force was used was in execution of his duty as such public servant. So, even if the evidence of the witnesses is accepted as true, it is not at all possible to say that the offence punishable under Section 353 of the Indian Penal Code was committed since even as per the statements made by PW.2 and PW.7 PW.2 was not discharging any official duty as a public servant at the place where the-occurrence took place.
Further, meaning of 'discharge of duty by a public servant' has been explained by the Hon'ble Kerala High Court in Poulose v. The State, 1985 Cri. L. J. 222, that:
7. A public servant discharges his duty when he performs the functions of his office and carries on any statutory or executive duty assigned to him. He executes his duty when he carries out some act or course of conduct to its completion. Execution denotes the fulfilment, completion or carrying into operation of any act or direction or order. When statutory orders and executive directions have to be implemented the public servant acts in execution of his duty. Discharge of duty FIR No. 35/00 PS: Karol Bagh State Vs. Mohd. Aslam 5/8 is therefore an expression of wider connotation while the term 'execution of duty' is of limited application.
9. Now, applying the above mentioned legal position in present facts and circumstances, PW-3, who was allegedly discharging public functions at the time of impugned occurrence, deposed that he was filling up the notice to the TSR which had been parked by the accused in no parking zone. But he (PW-3) did not explain as to whether he had been authorised by any order of Superior Officials to conduct such duty. Further, no notice which might have been filled by PW-3 at the impugned time had been produced by the prosecution. Further, the prosecution did not tender any documentary evidence to prove that above-mentioned witness was in fact on duty on the impugned day and was assigned the duty of pasting any traffic notice in the impugned area where the alleged incident had occurred.
In order to attract Section 186 or Section 353 of IPC, it must be proved that the person who was obstructed or assaulted or against whom criminal force was used was in execution of his duty as such public servant. It was for the prosecution to prove that PW-3 was discharging any duty assigned to him or carrying out some act or course of conduct to its completion. So, even if the testimony of PW-3 is accepted as true; considering the observations made in preceding paragraph, it is not at all possible to say that he was discharging any official duty as public servant at the place where the occurrence took place.
In these circumstances, prosecution had failed to prove the FIR No. 35/00 PS: Karol Bagh State Vs. Mohd. Aslam 6/8 ingredients of offences punishable under Sections 186 or Section 353 of IPC beyond reasonable doubt.
10.Now, PW-3 had deposed that the accused had beaten him. It is to be examined whether the accused had given alleged beating to the above- mentioned witness. But no cogent explanation has been given by any of the prosecution witnesses as to why PW-3 was not got medically examined. Moreover, PW-4 who came on the spot stated that he saw the accused and police person fighting. He did not say anything that accused had beaten PW-3. PW-5, the investigating officer, too deposed that she found the accused scuffling with PW-3; hence, she too did not state anything qua beating given by the accused to PW-3. It is pertinent to note here itself that PW-4 had not identified the accused too.
11. Now, in these circumstances, the argument of ld. counsel for the accused that no independent witness was joined in the investigation finds relevance. First of all, I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of FIR No. 35/00 PS: Karol Bagh State Vs. Mohd. Aslam 7/8 evidence is in any manner affected because of the non- compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned creates doubt on the case of the prosecution.
12. In view of above discussion, benefit of doubt shall be given to the accused. Accordingly, I acquit accused Mohd. Aslam. File be consigned to Record Room.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/12.10.12
FIR No. 35/00
PS: Karol Bagh
State Vs. Mohd. Aslam 8/8