Delhi District Court
State vs . Prem Pal & Ors. on 17 March, 2012
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Prem Pal & Ors.
FIR No. 403/96
U/s. 186/332/353/34 IPC.
PS Shalimar Bagh
JUDGMENT
a) The sl. no. of the case : 524/96.
b) The Unique ID No. of the case : 02401R0025711996.
c) The date of commission of the : 03/07/1996.
offence
d) The date of institution of case : 20/12/1996.
e) The name of the complainant : Constable Mukesh.
f) The name & address of accused : 1. Kamlesh Pandey S/o Sh. Birchha Pandey , R/o. Jhuggi Singhal Pur Village, Delhi.
: 2. Ram Kishan S/o Sh. Meerey R/o Village Singhal Pur, Delhi.
g) The offence complained of : U/s. 186/353/332/34 IPC.
h) The plea of the accused : pleaded not guilty. FIR No. 403/96 PS Shalimar Bagh 1 i) The date of reserving the order : 24/02/2012. j) The final order : Convicted U/s. 353/332/34 IPC : Acquitted U/s. 186 IPC. j) The date of such order : 07/03/2012. THE BRIEF REASONS FOR THE JUDGMENT :
1. The prosecution case, in brief, is that on 02/07/1996 at about 5:30 pm, in front of H. No. 5EC, Main Road, Shalimar Bagh, Village Singhal Pur, accused Ram Kishan and Kamlesh Pandey alongwith coaccused Prem Pal and Suraj Mukhi (both accused since expired) in furtherance of their common intention voluntarily obstructed and assaulted the complainant constable Mukesh Kumar, constable Ashok Kumar, lady constable Jasvinder Kaur and the police staff of PS Shalimar Bagh, while they were discharging their public functions and voluntarily caused hurt to the said public servants with the bricks. The complaint was made to the police and after investigation, the challan was filed by the police.
FIR No. 403/96 PS Shalimar Bagh 2
2. Complete set of copies were supplied to the accused persons. After hearing arguments, charge was framed against the accused persons for trial of offence U/s. 186/353/332/34 IPC by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined PW.1 Dharamvir Singh, eye witness to the incident, who has proved his statement Ex. PW1/DX, given to the police. PW.2 is constable Satpal, who was present on duty at the spot of demolition when the incident occurred. He had joined the investigation alongwith SI S.K. Rana, constable Mukesh and other staff, got the case registered and has proved the seizure of pieces of bricks used for commission of offence vide Ex. PW2/A. PW.3 is constable Mukesh, complainant/injured in this case, who has proved his statement Ex. PW3/A. PW.4 is lady constable Jaswinder, another injured, who has proved the incident and her medical treatment vide Ex. PW4/A and photographs of the spot vide Ex. PW4/B to Ex. PW4/D. PW.5 is IO SI Sehdev Kumar Rana, who had taken the injured persons to Hindu Rao Hospital and has proved MLCs of injured persons vide Ex. PW5/A and Ex. PW5/B, rukka vide Ex. PW5/C, site plan FIR No. 403/96 PS Shalimar Bagh 3 vide Ex. PW5/D, arrested the accused persons and proved their personal search vide memos Ex. PW5/E to Ex. PW5/H, collected the final result on the MLCs of injured persons and conducted other proceedings at the spot. PW.6 is photographer Rajeev Sehgal, who had photographed the spot of incident.
4. Statement of accused persons was recorded separately U/s. 281 CrPC, wherein they pleaded innocence and false implication in this case. They wished to lead defence evidence but no witness has been examined by the accused persons in support of their defence.
5. I have heard arguments from Ld. APP for State, Ld. Defence Counsel for accused persons and perused the evidence and documents on record carefully.
6. To prove the offence U/s. 186/353/332/34 IPC, it was incumbent upon the prosecution to prove that accused Ram Kishan and Kamlseh Pandey were the same persons who have committed the above alleged offences. FIR No. 403/96 PS Shalimar Bagh 4
7. The case is about demolition conducted by MCD to remove the unauthorized construction in Village Singhal Pur and the police was called for help at the time of demolition. In order to prevent the police and MCD from carrying out their duty, the public gathered there and started to pelt bricks on the police officials.
8. All the prosecution witnesses deposed that on 03/07/1996, the police was deployed to aid the demolition work conducted by the MCD department in Singhal Pur Village. At about 5:30 pm, while the demolition work was going on, several public persons, including accused persons, started to pelt bricks on the police officials due to which three police officials namely constable Mukesh (PW3), constable Ashok (unexamined) and lady constable Jaswinder (PW4) sustained injuries.
PW1 Dharamvir Singh, Dy. Director Horticulture, MCD, identified only accused Surajmukhi (since expired) as the person who pelted bricks on the day of incident. In his examination in chief, he did not identify other accused persons as the aggressors who had thrown bricks at the police FIR No. 403/96 PS Shalimar Bagh 5 officials. However, PW1 admitted in cross examination conducted by Ld. APP that accused Kamlesh and Ram Kishan had also caused injuries to the police officials.
PW2 constable Satpal identified both the accused Kamlesh and Ram Kishan in the court. He deposed that both the accused persons had thrown brick pieces towards the MCD and police officials at the time of demolition. He also identified the case property i.e. brick pieces in the court.
PW3 constable Mukesh (injured) identified accused Kamlesh and Suraj Mukhi (deceased) in the court. But he did not identify accused Ram Kishan.
PW4 W/ct. Jaswinder deposed about the incident but stated in her cross examination that, due to lapse of time, she could not say if the accused persons present in the court were the same persons who had pelted bricks at the spot.
FIR No. 403/96 PS Shalimar Bagh 6
PW5 IO SI Sehdev Kumar Rana deposed that he was present at the spot alongwith other police staff of PS Shalimar Bagh for demolition duty and at about 5:30 pm, both the accused persons present in the court, pelted bricks on police party and MCD staff, although he deposed that he could not identify them by their names. He also deposed that PW Ct. Mukesh, PW W/Ct. Jasvinder and PW Ct. Ashok had sustained injuries in the incident. He deposed that the injured persons were rushed to HR Hospital where they were medically examined. He collected their MLCs Ex. PW4/A (W/Ct. Jasvinder) and Ex. PW5/B (Ct. Mukesh).
The incident pertains to year 1996 and the depositions of prosecution witnesses started from the year 2002. In fact PW4 and PW5 were examined in the year 2007. It is not unnatural for the witnesses to forget the faces of one or the other accused persons due to lapse of time. But those who have identified the accused persons in the court, cannot be suspected.
Although, the doctors who had medically examined PW W/Ct. Jasvinder Kuar and PW Ct. Mukesh, did not appear to depose in the court, the FIR No. 403/96 PS Shalimar Bagh 7 fact cannot be ignored that bricks were pelted by the accused persons on the said police officials due to which they were rushed to HR Hospital for medical examination. It is clear that accused persons had assaulted and used criminal force upon the police officials by pelting bricks over them and also caused hurt to PW3 and PW4 by causing bodily pain through pelting of bricks. As per section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause the offence of hurt. Thus non proof of the MLCs does not cause disadvantage to the prosecution case.
The bricks used by the accused persons to cause injury to PW3 and PW4 were produced in the court and were identified by PW2. PW3 and PW4 had also deposed that they had sustained injuries due to the bricks thrown by the mob at the spot.
9. On perusal of case file, it has come to notice that no case is made out U/s. 186 IPC against the accused persons as there is no complaint U/s. 195 CrPC by senior officials of police or MCD, for prosecution of the case. FIR No. 403/96 PS Shalimar Bagh 8
10.In view of above observation and discussion, in my opinion, the prosecution has failed to prove the offence U/s. 186 IPC against the accused persons and they are acquitted for the offence U/s. 186 IPC. However, the prosecution has successfully proved the case that accused Ram Kishan and Kamlesh Pandey, in furtherance of their common intention voluntarily assaulted and used criminal force upon police officials by pelting of bricks and also caused hurt to PW3 and PW4 while they were discharging their duties as public servant, in order to prevent or deter them from discharging their public duties, punishable U/s. 353/332/34 IPC. Hence, they are convicted for the offence U/s. 353/332/34 IPC. Order on sentence shall be announced after hearing the accused persons.
ANNOUNCED IN THE OPEN
COURT ON 07/03/2012. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 + 1) Delhi
FIR No. 403/96
PS Shalimar Bagh 9
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Prem Pal & Ors.
FIR No. 403/96
U/s. 186/332/353/34 IPC.
PS Shalimar Bagh
ORDER ON SENTENCE
Present: Ld APP for State
Accused Kamlesh Pandey and Ram Kishan on bail with counsel. Accused Suraj Mukhi and Prem Pal already expired.
Arguments on sentence heard. It is argued by the counsel for defence that it is an old case of the year 1996 and accused Kamlesh Pandey (aged around 52 years) and Ram Kishan (aged around 42 years) are facing trial for last 16 years. It is further stated that facing trial for such a long period is itself a punishment for the convicts and hence they are entitled to benefit of probation for good conduct. It is further stated that both the accused persons are the only bread earner of their respective families. It is further stated that there is no record of any previous conviction against the accused persons.
On the other hand, it is stated by Ld. APP that the only fact that it is an old case does not entitle the convict persons for any lenient view. It is further stated by Ld. APP that convict persons have specific role in this case and they deserve maximum punishment.
FIR No. 403/96 PS Shalimar Bagh 10
It is true on the one hand that there is no record of previous conviction against the accused persons and they are facing trial since 1996, but on the other hand, it is a settled law that justice must be done and not only seems to have been done. In this case, the accused persons do not deserve to be released on probation as they had voluntarily assaulted and used criminal force upon the police officials by pelting of bricks and also caused hurt to Ct. Mukesh and W/Ct. Jasvinder Kaur while they were discharging their public functions which shows the contemptuous attitude of the accused persons towards the law. In totality of circumstances, both the convict persons are sentenced for a period of one year simple imprisonment for the offence U/s. 353 IPC and one year imprisonment for the offence U/s. 332 IPC and further to pay a fine of Rs. 10,000/ each i.d. four months SI. The benefit of section 428 Cr.P.C be given to the convicts and any previous imprisonment suffered by them in this case shall be set off against the substantive period of imprisonment awarded to them.
Copy of Judgment and sentence be provided to the convict free of cost.
ANNOUNCED IN THE OPEN
COURT ON 17/03/2012. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 +1) Delhi
FIR No. 403/96
PS Shalimar Bagh 11
State Vs. Prem Pal & Ors.
FIR No. 403/96
U/s. 186/332/353/34 IPC.
PS Shalimar Bagh
17/03/2012
Pr. Ld. APP for State.
Accused Kamlesh Pandey and Ram Kishan on bail with counsel. Accused Suraj Mukhi and Prem Pal already expired.
Heard arguments on the point of sentence. Vide separate order, announced in the open court, both the convict persons are sentenced for a period of one year simple imprisonment for the offence U/s. 353 IPC and one year imprisonment for the offence U/s. 332 IPC and further to pay a fine of Rs. 10,000/ each i.d. four months SI. The benefit of section 428 Cr.P.C be given to the convict persons and any previous imprisonment suffered by them in this case shall be set off against the substantive period of imprisonment awarded to them.
At this stage, both the convict persons moved separate applications U/s. 389 CrPC for grant of bail and for appeal against the judgment and order on sentence. Heard. Both accused Ram Kishan and Kamlesh Pandey were on bail during the trial. They are admitted to bail subject to furnishing PB in the sum of Rs. 20,000/ each with one surety of like amount. BB furnished, considered and accepted till one month. Fine paid by the accused/convict persons. File be consigned to Record Room.
BB of accused/convict be put up on 17.04.2012 at 2:00 pm. MM:DELHI 17/03/2012 FIR No. 403/96 PS Shalimar Bagh 12