Delhi District Court
Sumit Negi vs State (Nct Of Delhi) on 19 September, 2018
THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Appeal No.6/18
Sumit Negi
S/o S.S. Negi
R/o H. No.350, Sector1,
Type III, Sadiq Nagar,
New Delhi . . . . . . . . . . Appellant
Versus
State (NCT of Delhi) . . . . . . . . Respondent
Date of Institution : 07.11.2017 Date of Arguments : 04.09.2018 Date of Judgment : 19.09.2018 J U D G M E N T
1. The present appeal under section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to "Cr. P.C.") is directed against the impugned judgment dated 25.08.2017 and order of sentence dated 09.10.2017 passed by the court of learned MM 09, SouthEast District, Saket Courts in the case titled as State Vs. Sumit Negi, FIR No.179/2016, PS Defence Colony under sections 186/353/332/506 IPC and section 185 of Motor Vehicles Act.
CA No.6/18 Page 1 of 192. Vide the impugned judgment dated 25.08.2017, appellant/ accused Sumit Negi has been convicted for offences punishable under section 186/353/332/506 IPC, PS Defence Colony and section 185 Motor Vehicles Act and vide order on sentence, appellant/accused Sumit Negi has been sentenced to undergo rigorous imprisonment for the period of three years for offence punishable under section 332 IPC, rigorous imprisonment for the period of two years for offence punishable under section 353 IPC, rigorous imprisonment for the period of three months for offence punishable under section 186 IPC, rigorous imprisonment for the period of three years for offence punishable under section 506 (II) IPC and simple imprisonment for the period of six months for offence punishable under section 185 Motor Vehicles Act. He has been further directed to pay compensation of ₹15000/ to Ct. Chet Ram.
3. Brief facts of the prosecution are that complainant/SI Chet Ram along with Ct. Babu Lal No. 1329/T and Ct. Babu Lal No. 4417/T were checking drunken drivers. Ct. Babu Lal No. 4417/T stopped the appellant/accused who was riding motorcycle bearing registration No. DL4SCE7835 to check whether the appellant/accused was under the influence of alcohol. Appellant/started abusing the traffic officials. He gave beatings to them and torn uniform of Ct. Babu Lal. The appellant/accused also threatened the traffic officials. Complaint was made to the police and upon the said complaint, FIR No.179/2016, PS Defence Colony, got registered.
CA No.6/18 Page 2 of 194. Investigation was carried out and after completion of investigation, the charge sheet was filed in the court.
5. Charge u/s 186/332/353/506(II) IPC and 185 M.V. Act was framed against appellant/accused. He pleaded not guilty and claimed trial.
6. In support of the case, prosecution examined totally 11 witnesses to prove its case and thereafter the statement of appellant/accused was recorded under section 313 read with section 281 Cr. P.C. in which appellant/accused denied all the incriminating material and circumstances appearing in the prosecution evidence.
7. Appellant/accused refused to lead defence evidence. His defence evidence was closed.
8. On appreciation of evidence led by the prosecution and the material on record, learned trial court found the appellant/accused guilty for offences under section u/s 186/332/353/506(II) IPC and 185 M.V. Act. Accordingly, he was convicted for the said offences.
9. After hearing the arguments of parties, the appellant was sentenced for the period of imprisonment and fine as referred in para No.2 of the present judgment.
CA No.6/18 Page 3 of 1910. Feeling aggrieved by the impugned judgment dated 25.08.2017 and order of sentence dated 09.10.2017, the appellant/accused has challenged the same in appeal and has prayed for setting aside the judgment and order on sentence.
11. On notice, respondent/State made its appearance through Sh. Mayank Tripathi, learned Additional Public Prosecutor for State. However, no formal reply has been filed by the respondent to the appeal filed by the appellant. Sh. Mayank Tripathi, learned Additional Public Prosecutor for State directly advanced arguments.
12. The appellant has contended that Learned MM did not consider this fact that the despite alleged place of offence being very heavily used public place in the city and is continuously traversed by pedestrians and prosecution had not joined any public person in the investigation who would have brought the story out of reasonable doubt. It was argued that the importance of having an independent witness becomes critical when all the prosecution has is a group of police officers making a case. Albeit, prima facie, reliance may be had to any public officer making a statement, however in the instant case, the lack of joining independent testimony by the IO brings the whole case in dark.
13. The appellant has submitted that Learned MM did not consider this fact that prosecution witnesses namely PW1, PW2 and PW3 (SI Chet Ram, Ct. Babu Lal No. 4417/T and Ct. Babu Lal No. 1329/T) CA No.6/18 Page 4 of 19 all have in their statements deposed that the accused got angry, abused them and started beating Ct. Babu Lal No. 4417/T which is unlikely when seen in light of the discharge slip of the accused.
14. It has been argued that learned MM failed to appreciate fatal flaw in the prosecution version which leads credence to the defence version that the police officials had assaulted the accused and hit his head on the glass at the police station thereby causing soft tissue injury which needed 6 stitches to stop bleeding.
15. The appellant has submitted that Learned MM did not consider this fact that the police officers assaulted the appellant / accused to the extent that he suffered soft tissue damage while none of the eye witness police officials suffered injuries anywhere near that threshold.
16. The appellant has submitted that Learned Trial Court failed to appreciate that PW6 HC Subhash affirms in his deposition on 05.07.2017 that the appellant/accused had suffered injury when he reached on the spot.
17. It has been contended on behalf of the appellant that all the prosecution eye witnesses have deposed that the accused self inflicted an injury by hitting himself on the wall. However, no wall has been shown in the site plan whereas all the eye witnesses say that the accused self inflicted the injury. It has been contended that this CA No.6/18 Page 5 of 19 flaw goes to the root of the physical violence between the police officers and the accused so as to attract section 332, 353, 186 and 506 (II) IPC.
18. The appellant has submitted that no photographs have been clicked by the IO. Appellant has further alleged that as per version of prosecution, the appellant / accused had started beating Ct. Babu Lal No. 4417/T and in the process his shirt was torn. However, Ct. Babu Lal was not medically examined. He in his own deposition on 05.05.2017 says that he was not medically examined.
19. It has been argued on behalf of appellant that the allegations against the appellant/accused need substantiating by the evidence while there is no medical examination of the only eye witness alleged to have been beaten by the appellant/accused which could have substantiated the prosecution story.
20. Appellant has contended that Ct. Babu No. 1329/T in his deposition on 07.04.2017 says that Ct. Babu Lal No. 4417/T suffered hand injuries. While, Ct. Babu Lal contradicts him by saying that he was not medically examined at all and also there is no indication on the MLC or the Medial Report that there were any hand injuries.
21. It has also been argued by learned counsel for appellant that just recovering a torn uniform shirt of a police official does not prove that the appellant/accused had any part to play in that crime. It is a CA No.6/18 Page 6 of 19 rule of prudence to conclude that in the presence of three police officials, one sub inspector, no one single handedly would be able to beat up anybody.
22. Appellant has submitted that assuming that he was so inebriated that he was out of his senses and abused the police officials on stopping him, then it follows that in rage they could have assaulted him, or used excessive force to cause soft tissue damage to him which on his resistance enraged them even more and they roped in section 332, 353, 186 and 506 (II) IPC to ensure that a more serious offence is alleged against him than just an offence under section 185 of the MV Act, 1988 carrying a maximum punishment of six months. It has also been submitted on behalf of appellant that medical evidence proves mentioned series of events, since no police officers received any injuries to the extent alleged. Furthermore, deposition of the appellant/accused recorded under section 313 Cr.P.C. is the true story which when reached in light of this ground brings the whole prosecution story within reasonable doubt of which the benefit, as per law, goes to the appellant/accused.
23. Appellant has contended that the reliance on the other false case i.e. CC No.503/1/15 under sections 186/332/354/34 IPC PS Defence Colony for sentencing him is a fallacy.
24. The appellant has prayed for setting aside the judgment and order on sentence of learned Trial Court.
CA No.6/18 Page 7 of 1925. Learned Additional Public Prosecutor for State / respondent has argued that nonjoining of public person is no reason to not to believe the testimonies of three police persons. They are public servants and their testimonies cannot be overlooked. He also argued that reasonable explanation has been offered for injury of appellant/accused and further no complaint was filed by appellant/accused in relation to him being allegedly so beaten. Learned Additional Public Prosecutor for State / respondent has also argued that not showing of wall or not taking the photographs of the spot by the IO does not weaken the case of prosecution in any manner so as to disbelieve it. Learned Additional Public Prosecutor for State has argued that there is no merit in the present appeal and the same deserves to be dismissed.
26. I have heard and considered the submissions advanced Shri Luqman S. Hasan, learned counsel for appellant/accused and Shri Mayank Tripathi, learned Additional Public Prosecutor for State / respondent and carefully perused record of the case.
27. Appellant has submitted that PWs 1, 2 and 3 (SI Chet Ram, Ct. Babu Lal No. 4417/T and Ct. Babu Lal No. 1329/T) all have in their statements deposed that the appellant / accused got angry, abused them and started beating Ct. Babu Lal No. 4417/T which is unlikely when seen in light of the discharge slip of the accused. It is noticed that the discharge slip of appellant / accused was never proved by any of the prosecution witnesses and the appellant did not lead any CA No.6/18 Page 8 of 19 defence evidence. Thus, the said objection/ground of appeal is not sustainable.
28. It has been argued on behalf of appellant that Learned MM failed to appreciate fatal flaw in the prosecution version which leads credence to the defence version that the police officials had assaulted the appellant/accused and hit his head on the glass at the Police Station thereby causing soft tissue injury which needed six stitches to stop bleeding. Perusal of MLC of appellant/accused reveals that the opinion on the nature of injury is described as simple and except the laceration over left eyebrow 3 X 0.5 cm, no other physical injury has been reported on his MLC thus belying the assertion of the appellant that police officials had assaulted the accused.
29. The appellant has submitted that Learned MM did not consider this fact that the police officers assaulted the appellant/accused to the extent that he suffered soft tissue damage while none of the eye witness police officials suffered injuries anywhere near that threshold. There is again no merit in the said submission of appellant as the MLC of accused reveals that he sustained only one physical injury and except the laceration over left eyebrow 3 X 0.5 cm, no other physical injury has been reported on his MLC thus belying the assertion of the appellant that police officials had assaulted the accused while he was alone and was helpless left to their mercy.
30. The appellant has submitted that Learned Trial Court failed to CA No.6/18 Page 9 of 19 appreciate that PW6 HC Subhash affirms in his deposition on 05.07.2017 that the appellant/accused had suffered injury when he reached on the spot. The said ground of objection is not understandable as to how that negates the version of the prosecution. PW6 HC Subhash specifically stated even in his cross examination that the appellant/accused was already injured when he saw him in the Police Station and no fresh injury was sustained by him in the Police Station. PW2, Ct. Babulal, no. 4417/T has also deposed that when he tried to check the reading of alcohol of the driver of the vehicle i.e. motorcycle bearing registration number DL 4SCE7835, i.e. appellant/accused, he was drunk, he got angry and started abusing him. Appellant/accused started beating him and torn his uniform. PW2 has also deposed that appellant/accused said that he is a local resident and he would get him and other associates who were on duty with him eliminated through his local contacts. Appellant/accused banged the head with wall and injured himself. PW2 has deposed that appellant/accused started abusing and beating ASI Chet Ram due to which he sustained injuries on his hand. Thus even PW2 deposed that appellant/accused suffered head injury on the spot. Deposition of PW1 is also on the same lines. In view of these observations, there is no merit in the said submission of appellant that learned trial court failed to appreciate that PW6 HC Subhash affirms in his deposition on 05.07.2017 that the appellant/accused had suffered injury when he reached on the spot.
31. It has been contended on behalf of the appellant that all the CA No.6/18 Page 10 of 19 prosecution eye witnesses have deposed that the appellant/accused selfinflicted an injury by hitting himself on the wall. However, no wall has been shown in the site plan whereas all the eye witnesses say that the appellant/accused self inflicted the injury. It has been contended that this flaw goes to the root of the physical violence between the police officers and the appellant/accused so as to attract section 332, 353, 186 and 506 (II) IPC. The site plan has been perused. It was proved by PW1, SI Chet Ram. The site plan shows distinctly Mark A where the traffic staff stopped the motorcycle of the appellant/accused and also shows the police booth which is located at a point near Mark A and according to the learned counsel for appellant, the same was at a distance of about 12 steps from Mark A. The said site plan also supports the narration of the prosecution that appellant/accused had hit his head against the wall of the police booth since Mark A and the police booth were situated in proximity. The police booth is shown distinctly and separately in the site plan, Ex. PW1/B and in the site plan, one can draw a rough sketch of the site/spot and not 3D picture of the police booth so as to show its walls. Thus, the ground of not showing the wall/glass of the police booth in the site plan does not weaken the case of the prosecution in any manner. Similarly, the objection of the appellant that no photographs have been clicked by the IO is also not sustainable as the same is not required and is thus not fatal to the story of prosecution.
32. Learned counsel for appellant argued that as per version of CA No.6/18 Page 11 of 19 prosecution, the accused had started beating Ct. Babu Lal No. 4417/T and in the process his shirt was torn. However, Ct. Babu Lal was not medically examined. He in his own deposition on 05.05.2017 says that he was not medically examined. Learned Additional Public Prosecutor has rightly argued that PW 3, Ct. Babu Lal No. 4417/T has not deposed in his examination in chief that he had sustained any injuries because of being beaten by the accused/appellant. He only deposed that the complainant, PW1, ASI Chet Ram had sustained injuries in his hand and he was got medically examined and prosecution has duly proved his MLC as PW5/A by summoning Dr. Prateek Sahni. Thus there is no flaw in the version of the prosecution in view of these observations.
33. It has been argued on behalf of appellant that the allegations against the appellant/accused need to be substantiated by the evidence while there is no medical examination of the only eye witness alleged to have been beaten by the appellant/accused which could have substantiated the prosecution story. The testimony of the alleged only eyewitness, Ct. Babulal no. 1329/T who deposed as PW3 has been perused. He has nowhere deposed that he was also beaten by the accused/appellant and hence there was no requirement for his medical examination and thus the objection raised by appellant is not sustainable.
34. Appellant has contended that Ct. Babu No. 1329/T in his deposition on 07.04.2017 said that Ct. Babu Lal No. 4417/T suffered CA No.6/18 Page 12 of 19 hand injuries. While Ct. Babu Lal contradicts him by saying that he was not medically examined at all and also there is no indication on the MLC or the Medial Report that there were any hand injuries. It is noticed that in his examination in chief, he did not depose that Ct. Babu Lal No. 4417/T suffered hand injuries rather he stated that appellant/accused started abusing and beating ASI Chet Ram due to which he sustained injuries in his hand and the MLC of ASI Chet Ram have been duly proved as Ex. PW5/A.
35. It has also been argued by learned counsel for appellant that just recovering a torn uniform shirt of a police official does not prove that the accused had any part to play in that crime. It is a rule of prudence to conclude that in the presence of three police officials, one sub inspector, no one single handedly would be able to beat up anybody. The said submission is unfounded. All the 3 witnesses, PW1 to PW3 had rightly identified the accused. They correctly identified motorcycle and the case property i.e. torn uniform of Ct. Babu Lal No. 4417/T. Testimony of PW1, PW 2 and PW 3 has corroborated testimony of each other and there is no reason to disbelieve testimony of all the 3 eyewitnesses who have given same version of the incident and have deposed that accused, appellant herein, was under the influence of alcohol and they stopped him in order to check alcohol content in his blood but accused refused to cooperate. He abused them and beaten them and torn uniform of Ct. Babu Lal No. 4417/T. Thus by no stretch of imagination it can be said that the learned trial court has only relied on recovery of one torn CA No.6/18 Page 13 of 19 uniform shirt of a police official to hold the appellant/accused guilty.
36. Appellant has submitted that assuming that he was so inebriated that he was out of his senses and abused the police officials on stopping him, then it follows that in rage they could have assaulted him, or used excessive force to cause soft tissue damage to him which on his resistance enraged them even more and they roped in section 332, 353, 186 and 506 (II) IPC to ensure that a more serious offence is alleged against him than just an offence u/sec.185 of the MV Act, 1988 carrying a maximum punishment of 6 months. It has also been submitted on behalf of appellant that medical evidence proves the mentioned series of events, since no police officers received any injuries to the extent alleged. Furthermore, the accused deposition under section 313 Cr.P.C. is the true story which when read in light of this ground brings the whole prosecution story within reasonable doubt of which the benefit, as per law, goes to the appellant/accused.
37. However, the statement under section 313 Cr. P.C. alone is not sufficient to exonerate the appellant/accused of the offences allegedly committed by him in absence of any defence evidence being produced by him and the unshaken testimony of PW1 to PW 3 even during crossexamination by defence counsel.
38. Another ground taken by appellant to challenge the impugned judgment is that the reliance on the other false case i.e. CC No. CA No.6/18 Page 14 of 19 503/1/15 under section 186/332/354/34 IPC PS Defence Colony for sentencing him is a fallacy. The said submission is a false submission as learned trial court has not relied on the same and has rather observed as: "Ld. Counsel for accused has taken plea that accused has been falsely implicated by traffic police officials at the instance of police officials of PS Defence Colony as similar case is already registered against the accused at PS Defence Colony. I do not find force in the argument of Ld. Counsel. The fact that similar case has been registered against accused at PS Defence Colony is no reason to assume that he has been falsely implicated in the present case. Ld. Counsel has failed to show any nexus between three eye witnesses and the police officials of PS Defence Colony."
39. It is also noticed that PW11 Dr. A.K. Jaiswal has proved report Ex.PW11/A, which is blood sample report of accused and as per the same, appellant/accused was found under the influence of alcohol and the amount of alcohol was detected as 72.28mg/100 ml, which is much beyond the permissible limit. In his statement u/s. 313 Cr.P.C, appellant/accused admitted that his blood sample was taken by the doctor and it may have alcohol present in it. After receiving report of doctor with regard to presence of alcohol, section 185 M.V. Act was added in the charge sheet.
40. Appellant has taken an objection that no public person was CA No.6/18 Page 15 of 19 joined as a witness despite the spot of incidence being a heavily used public place in the city and being continuously traversed by pedestrians. It is true that police is expected to join independent witnesses (if available) to inculcate faith. At the same time, it is hard reality that public witnesses do not show much interest and generally refuse to participate in the proceedings as witnesses. Though police can initiate legal action against those persons, who refuse to participate as witnesses of the event happening in their presence, but it may sidetrack the investigation itself. IO cannot be expected to run behind every such person, who did not cooperate and refused even to tell his name or address, leaving main investigation in lurch.
41. Police persons are reliable witnesses as other witnesses are.
Their testimony cannot be discarded, simply because of their employment in the police. It was held by the Apex Court in a case titled as Hazari Lal v. State (Delhi Administration) AIR 1983 SC 873 but evidence of a police officer laying trap, if found reliable, can be accepted without corroboration. In case Aher Raja Khima versus State of Saurashtra, AIR 1956 SC 17, Hon'ble Supreme Court held that the presumption that a person acts honesty applies as much in favour of police officer at the other persons and it is not a judicial approach to distrust and suspect him, without good ground. Therefore such an attitude could do neither credit to the magistrates nor good to the public. It only runs down the prestige of the police administration.
CA No.6/18 Page 16 of 1942. As observed earlier, PW1 to PW3 have corroborated each other in all material particulars. Learned trial court has found the testimony of the prosecution witnesses to be trustworthy and reliable and has thus convicted the appellant/accused for offences under section 186/353/332/506 IPC, PS Defence Colony and section 185 Motor Vehicles Act. I have also perused the testimony of all the witnesses of the prosecution and find them to be trustworthy and reliable witnesses. They have corroborated each other on material points and their testimonies have also remained unshattered and unshaken in their cross examination. In the considered opinion of this court, their testimonies have been rightly accepted by the learned trial court. Accordingly, I uphold the impugned judgment of convicting the appellant for offences under section 186/353/332/506 IPC, PS Defence Colony and section 185 Motor Vehicles Act.
43. Learned counsel for appellant submitted that appellant is 28 years old who is a young offender and has been facing trial since last 3 years and has undergone sufficient punishment so a lenient view be taken against them. However learned Additional Public Prosecutor for State / respondent submitted that there is nothing on record to take lenient view against appellant as his conduct shows that he has no regard for law and the officers who were discharging their official duties. There is zero tolerance against such crime.
CA No.6/18 Page 17 of 1944. I have perused the record.
45. There is another case against the appellant. He has assaulted a public servant and caused harm to him while he was performing his duties as a public servant. No person is allowed to take law in his own hand. The assault on a public person is a sign that appellant does not bother about the law and can assault any person when he can assault a public servant. However, in my considered opinion, looking at young age of the appellant, the sentence awarded by the learned trial court is too harsh. Accordingly, order on sentence is modified and appellant is sentenced to undergo simple imprisonment of 2 months for the offence punishable under section 185 MV Act, rigorous imprisonment of 3 months for an offence punishable under section 186 IPC, rigorous imprisonment for one year punishable under section 332 IPC, rigorous imprisonment of one year for an offence punishable under section 506 (II) IPC and rigorous imprisonment of one year for an offence punishable under section 353 IPC with direction to pay a compensation of ₹15,000/ to Ct. Chet Ram. Sentences imposed upon the appellant will run concurrently. Benefit of section 428 Cr.P.C. is also granted to him.
46. Thus, the order on sentence passed by learned trial court is modified in these terms and the impugned judgment is upheld.
47. Copy of the Judgment which includes order on sentence has been given to appellant free of charges.
CA No.6/18 Page 18 of 1948. Copy of the Judgment which includes order on sentence be sent to Jail Superintendent concerned for intimation.
49. A true copy of the Judgment which includes order on sentence be sent alongwith TCR to learned Trial Court concerned for intimation.
50. Appeal file be consigned to record room.
Announced in the open court on 19.09.2018 (Dr. Neera Bharihoke) ASJ06/SouthEast/Saket/ND 19.09.2018 Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
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