Delhi District Court
State vs Anil Ors. on 7 May, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
JUDGMENT
STATE VS ANIL ORS.
FIR No. : 121/05
U/s. 186/332/323/353/34 IPC
PS : Sarita Vihar
A. CIS No. : 87682/16
B. Date of Institution : 18.05.2006
C. Date of Commission of Offence : 18.03.2005 D. Name of the complainant : Constable Jai Pal Singh E. Name of the Accused (1): Anil S/o Sh. Hasth Bahadur R/o Jhuggi, Aali Extension New Delhi (2): Dhanraj S/o Sh.Biral Prasad R/o Jhuggi, Aali Extension New Delhi (3): Jeetu (PO vide order dated 21.10.2011) S/o Hasth Bhadur R/o Jhuggi, Aali Extension New Delhi F. Offences complained of : U/s186/332/323/34 IPC & U/s 353/34 IPC G. Plea of the Accused : Pleaded not guilty H. Order reserved on : Not reserved.
FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 1 of 17
I. Final order : Convicted U/s186/332/34 IPC &
U/s 353/34 IPC
J. Date of such order : 07.05.2018
Brief Facts :-
1. The present case is the result of FIR No. 121/05 and the charge sheet filed by police thereupon. The brief facts leading to registration of present FIR against the accused are as follows:
2. On 18.03.2005 at 08:45 PM near Azad Camp Jhuggi, Sarita Vihar flyover, within jurisdiction of PS Sarita Vihar accused Anil, Jeetu & Dhanraj acting in furtherance of their common intention used criminal force and voluntarily obstructed complainant Ct. Jaipal Singh, a public Servant, in performance of his official duties and further caused hurt and simple injuries to the him and thereby committed offences punishable U/s 186/332/323/353/34 IPC.
3. On written complaint of complainant Constable Jaipal Singh, the present FIR was registered at PS Sarita Vihar. Chargesheet was filed after completion of investigation.
4. Accused persons were summoned and supplied with the copy of challan and documents in compliance of section 207 Cr.P.C and thereafter, the matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge.
5. Prima facie offences punishable U/s 186/332/323/353/34 IPC were found to made out against all accused persons. Charge FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 2 of 17 was framed and explained to accused persons to which they pleaded not guilty and claimed trial.
6. To bring home the guilt of accused persons, prosecution examined Nine witnesses.
7. Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused persons had admitted the genuineness MLC bearing no.73/2005 dated 18.03.2005 of injured Ct. Jai Pal Singh prepared by Dr. H. Rora as Ex-C1.
8. During the pendency of trial, Jeetu stopped appearing and was subsequently declared absconder vide order dated 21.10.2011 by Ld. Predecessor.
9. The statements of accused persons U/s 313 CrPC were recorded on two occasions. In their statements recorded u/s 313 Cr.PC, accused persons denied the prosecution case and pleaded innocence. They stated that they are innocent and Police has falsely implicated them. However, they did not lead any independent evidence in defence. Thus, matter was listed for final arguments.
10. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file & written arguments of accused very carefully.
11. The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused. Ld. Defence FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 3 of 17 counsel on the other hand has argued that the accused persons have been falsely implicated in the present case and as such they are entitled to acquittal in the present case.
Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
12. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 4 of 17 articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned.
13. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
14. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 5 of 17 bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
15. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentary value of testimony of Police Officers:
16. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Evidentiary value of the testimony of police officials to recovery.
It was held in case of Madhu Vs. State of Karnataka, AIR 2014 SC 394 (Para-11) that evidence of police officials as FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 6 of 17 recovery witness is reliable even though large number of people were available if there is nothing on the record to suggest that the testimony of police witnesses is tainted in any manner.
17. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel.
Relevant Provisions of Law:
18. S. 186 IPC reads "Whoever voluntarily obstruct any public servant in discharge of his public function, shall be punished with imprisonment of either description for a term which may extent to three months or with fine which may extent to Rs. 500/- or with both".
19. S. 332 IPC provides punishment for voluntarily causing hurt to any public servant in discharge of his duties or with intent to prevent or deter that person / public servant from discharging their duties as such public servant. The punishment is upto three years or fine or both.
20. S. 323 IPC : Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 7 of 17
21. The essential ingredients of Hurt are -
(i) Bodily pain, disease or infirmity must be caused - Bodily pain, except such slight harm for which nobody would complain, is hurt. For example, pricking a person with pointed object like a needle or punching somebody in the face, or pulling a woman's hair. The duration of the pain is immaterial.
Infirmity means when any body organ is not able to function normally. It can be temporary or permanent. It also includes state of mind such as hysteria or terror.
(ii) It should be caused due to a voluntary act of the accused.
22. S. 353 IPC provides that: "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".
FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 8 of 17
23. The ingredients of offence under Section 353 are:
1. The victim must be a public servant.
2. When assaulted, he must have been acting
i) In execution of his official duty;
ii) And the assault was intended to deter him from discharging his duties;
iii) That it was in consequence of anything done or attempted, to be done by such person in the lawful discharge of his duty.
24. Under Section 353, the public servants get protection when he acts in the discharge of a duty imposed by law on him. An act which is the very contrary of the duties of a public servant cannot be said to be done by a public servant while acting or purporting to act in the discharge of his official duties. An assault on a public servant who is not discharging a duty imposed on him by law when he is assaulted falls under Section 352.
Discussion on merits :
25. The offence was alleged to have been committed against Constable Jaipal Singh while he was discharging his official duties as a public servant. Thus, Sanction U/s 195 CrPC was required for prosecution. To prove the Sanction, Prosecution examined PW-9 Sh. Sanjay Tyagi, DCP, Chief Vigilance Officer, FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 9 of 17 MCD who was the then ACP, Sub Division, Sarita Vihar. He proved the Sanction given by him in the present case. During cross examination, he proved that the permission as Ex.PW9/A inclusive of all the corrections appearing on the face of the document was given by him in the course of his official work. He sustained the test of cross-examination and no material contradiction could be elicited from the testimony of this witness. Thus, it is held that the Prosecution has been successful in proving that the Sanction for prosecution was duly obtained in the present case as per Law.
Testimony of the Investigating Officer:
26. PW-7 Sub-Inspector Jamil Ahmad is the Investigating Officer of the present case. He deposed that on 18.03.2005, he was posted at PS Sarita Vihar as ASI and was on emergency duty from 08:00 PM to 08:00 AM. On that day, he received DD No. 16 A regarding quarrel at Azad Camp Jhuggi, Near Sarita Vihar. He alongwith Constable Shailesh reached Azad Camp Jhuggi, Near Sarita Vihar Flyover. There Constable Vikas, Constable Hansraj and injured Manoj Gupta met him and handed over custody of three accused persons namely Anil, Jeetu and Dhanraj. IO also came to know that injured Constable Jaipal Singh had gone to hospital for treatment. In the meanwhile, Constable Samay Singh, Home Guard also reached there and handed over DD No. 20A regarding admission of Constable Jaipal Singh in Apollo Hospital.
FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 10 of 17
27. IO alongwith Ct. Shailesh reached Apollo Hospital where he collected MLC No. 73/05 of Constable Jaipal Singh. Doctor declared the victim fit for statement. IO recorded statement of Constable Jaipal Singh vide Ex.PW1/A. IO prepared Rukka and handed it over Constable Shailesh for registration of FIR and returned at the spot. Constable Shailesh reached at the spot and handed him a copy of FIR and original rukka. Constable Vikas handed him one danda and Manoj Gupta informed him that injury to Constable Jaipal was given by the same danda. IO seized the danda vide seizure memo Ex. PW2/A. He also prepared site plan Ex.PW7/B at the instance of injured Manoj Gupta. Accused persons were arrested and personally searched vide memos Ex. PW7/C to Ex. PW7/H. IO prepared complaint u/s 195 Cr.P.C and got sanction for prosecution from the then ACP Sh Sanjay Tyagi. IO collected result of MLC of Constable Jaipal. Injured Manoj was not sent to hospital as he sustained minor injuries. IO also got medical examination of accused persons conducted as there was allegation of accused being drunk. MLC of three accused are Ex. PW7/I to Ex.PW7/K. Thereafter, IO prepared chargesheet and filed the same before the Court. No material contradictions could be elicited from the witness despite extensive cross-examination. There is no reason to doubt the veracity of the Investigating officer merely because he is a police officer and his testimony is to be treated at par with other independent witnesses.
FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 11 of 17 Testimony of the Victim/Injured:
28. PW-1 constable Jaipal is the complainant and injured in the present case. He deposed that on 18.03.2005, he was posted as Constable at PS Sarita Vihar and was on patrolling duty at Madanpur Khadar area, Sarita Vihar. At about 8.45 PM when he reached near Sarita Vihar flyover, he saw that three persons, whose names were later revealed as Anil, Jeetu and Dhanraj i.e., the accused persons were quarreling with the shopkeeper Manoj Gupta. On seeing this, he went to the spot and tried to pacify the quarrel but the accused persons did not listen to him. Rather, accused Jeetu caught hold of Constable Jaipal Singh from back side. Anil asked Dhanraj to bring a danda. Accused Anil beat Constable Jaipal Singh on his head, shoulder and left arm with the danda. In the meanwhile, Ct. Vikas alongwith Constable Hansraj, who were passing by from the spot saw the incident and intervened to save Constable Jaipal Singh and apprehended all the accused persons. Constable Jaipal Singh was taken to the hospital and all accused persons were taken to the PS by Constable Vikas and Constable Hans Raj. All the three accused persons had obstructed Constable Jaipal Singh while he was discharging his official duties. During the said process, they also caused injuries to him with danda. Accused Anil and Dhanraj were duly identified by the witness in the Court. All the accused persons were apprehended from the spot. Thus, there is no dispute with respect to their identities. Accused Jeetu had been FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 12 of 17 already declared Absconder by the Ld. Predecessor Court. Constable Jaipal withstood the test of cross examination and remained consistent in his deposition. The injuries suffered by Constable Jaipal Singh is duly corroborated by his MLC which has been duly proved by the prosecution. Thus, there is no reason to doubt the veracity of his statement.
Testimony of the Eye Witnesses:
29. PW-4 Manoj Gupta i.e., the Shopkeeper is the eyewitness in the present case. He deposed that on 18.03.2005, at about 08:45-9:00 PM, he was going towards his residence after closing his grocery shop. At that time, accused Anil, Jeetu and Dhanraj, who were drunk started abusing him by calling names to him and when he objected, he was slapped by Jeetu. In the meanwhile, beat constable Jaipal Singh arrived at the spot and tried to pacify them. Accused Jeetu picked up a danda lying near Masjid and hit constable Jaipal with danda. The other accused persons were also grappling with him and constable Jaipal. He correctly identified accused Anil and Dhanraj before the Court. PW Manoj Gupta had made a call at 100 number thereupon police came to the spot and the accused persons were taken to the PS. IO had also seized the danda in his presence vide memo Ex-PW2/A. PW Manoj was duly cross examined by defence counsel wherein witness affirmed the entire sequence of events and corroborated the testimony of injured Constable Jaipal Singh. He also proved that Police had FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 13 of 17 seized the weapon of offence i.e., the danda in his presence. No material contradictions could be elicited from the witness despite extensive cross-examination. There is no reason to doubt the veracity of this witness.
30. PW-2 Head Constable Vikas Rathi has deposed that on 18.03.2005, he was posted as Constable in PS Sarita Vihar. On that day he alongwith constable Hansraj were on patrolling duty at Madanpur Khadar area, Sarita Vihar. At about 8:55PM when they reached near Sarita Vihar flyover, they saw that three accused persons namely Anil, Jeetu and Dhanraj were beating Constable Jaipal Singh, Anil was carrying danda. Jaipal was being beaten by the danda. The accused persons were apprehended by him with the help of Ct. Hansraj. Thereafter, Ct. Jaipal went to the hospital and all accused persons were taken to the PS by him and Ct. Hansraj. Accused persons created an obstacle in performance of duties by Constable Jaipal and also caused injuries to him. He withstood the test of cross examination and corroborated the testimony of injured Constable Jaipal Singh and Shopkeeper Manoj Gupta. No material contradictions could be elicited from the witness despite extensive cross-examination. There is no reason to doubt the veracity of this eyewitness.
31. PW-3 Constable Hansraj has deposed that on 18.03.2005 he was posted as constable at PS Sarita Vihar. On that day he alongwith constable Vikas Rathi were on patrolling duty in Madanpur Khadar area. At about 8.55PM when they FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 14 of 17 reached near Sarita Vihar flyover, they saw that three accused persons namely Anil, Jeetu and Dhanraj were beating Ct. Jaipal. The shopkeeper Manoj Gupta was also being beaten by the accused persons. They rescued Ct. Jaipal from the accused persons and apprehended them. Ct. Jaipal left for the hospital and the accused persons were taken to the PS. The accused persons created an obstacle in performance the duty by Ct. Jaipal and caused injuries to him. He withstood the test of cross examination and corroborated the testimony of injured Constable Jaipal Singh , Constable Vikas and Shopkeeper Manoj Gupta. No material contradictions could be elicited from the eyewitness despite extensive cross-examination. There is no reason to doubt the veracity of this witness.
32. PW-5 Constable Kailash has deposed that on 18.03.2005 he was posted at PS Sarita Vihar as constable. On that day, at about 09.15PM, he was standing at the gate of the said Police Station. He saw that Constable Jaipal Singh arrived at the Police Station on foot in an injured condition and there was blood on his clothes. He took him to Apollo hospital and got him medically examined vide MLC NO.73/2005. At the Apollo Hospital ASI Jameel Ahmed and Ct. Shailesh Singh arrived there and collected the MLC of Constable Jaipal. PW5 withstood the test of cross examination and corroborated the testimony of injured Constable Jaipal Singh , Constable Vikas and Shopkeeper Manoj Gupta. No material contradictions could be elicited from the witness despite FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 15 of 17 extensive cross-examination. There is no reason to doubt the veracity of this eyewitness.
Conclusion:
33. As discussed above, PW-9 Sh. Sanjay Kumar Tyagi, IPS Officer, Chief Vigilance Officer NDMC Delhi, who was the then ACP, Sub Division Sarita Vihar has duly proved the permission for prosecution Ex.PW9/A issued by him. Complainant/ injured Constable Jaipal Singh remained consistent throughout his deposition and has proved that all the three accused persons Anil, Jeetu and Dhanraj had obstructed him in performance of his official duties when he was trying to pacify a quarrel between them and shopkeeper Manoj Gupta. The three accused persons not only obstructed Constable Jaipal Singh but also gave beatings to him thereby causing several injuries on his body. The Sanction for prosecution has also been duly proved by examining PW-9 Sh. Sanjay Tyagi, IPS. The incident was witnessed by Constable Hansraj andHC Vikas who were on patrolling duty and had intervened to save Constable Jaipal Singh and had also apprehended all three accused persons and handed them over to Police. There is no dispute with respect of the identity of the accused persons as they were apprehended from the spot. The testimonies of the eyewitnesses and injured further stands corroborated by PW-5 Constable Kailash Chand who saw Constable Jaipal Singh arriving at Police Station in an injured condition. The injuries suffered by Constable Jaipal Singh are FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 16 of 17 corroborated by his MLC. These witnesses have not only corroborated but reinforced the testimony of injured Constable Jaipal Singh on all material aspects of his deposition. There is no reason to disbelieve the testimony of these eye witnesses merely because they are police officials. In these circumstances, it is held that Prosecution has been able to prove its case beyond the pales of reasonable doubt and has discharged the necessary burden as mandated by law. The defence could not raise any reasonable doubt in the case put forth by the prosecution. Accordingly, accused Anil and Dhanraj are hereby convicted for offence U/s. 186/332/353/34 IPC. As the accused have been convicted for offence under S.332 IPC, they cannot be separately convicted for offence U/s 323 IPC. Ordered accordingly.
The case against accused Jeetu be revived as and when accused apprehended.
Copy of the same be sent to concerned prosecution Branch & concerned police station for intimation and also Jail Superintendent.
Now come up for arguments on point of sentence. Announced in the open Court on 07.05.2018 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No. 121/05, PS-Sarita Vihar State Vs. Anil & Ors. Page no. 17 of 17