Delhi District Court
State vs . Md. Gulrej Khan @ Munna on 2 May, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Md. Gulrej Khan @ Munna
FIR No. 90/2014
PS : Hauz Qazi
U/s 186/353/332/323 IPC
Date of Institution : 23.08.2014
Date of reserving of order : 10.04.2018
Date of Judgment : 02.05.2018
J U D G M E N T
1. Serial No. of the case : 287879/16
2. Name of the Complainant : Ct. Nitin Kashyap
3. Date of incident : 16.04.2014
4. Name of accused :
Md. Gulrej Khan @ Munna S/o
Manzoor Ahmed, R/o H. No. 18
D,First Floor, Gafoor Nagar, Okhala,
New Delhi.
5. Offence for which chargesheet
has been filed : S. 186/353/332/323
IPC
6. Offence for which charge
has been framed : as above
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 02.05.2018
FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 1 of 15
PS : Hauz Qazi
BRIEF REASONS FOR ORDER:
1.Mr. Md. Gulrej Khan @ Munna, the accused herein, has been charged for committing offences punishable under Section 186/353/323/332, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that on 16.04.2014 at about 6:30 p.m., at 1589, Gali Madarsa Mir Zumla, Lal Kuan, Hauz Qazi, complainant Ct. Nitin Kashyap was on his official duty being a public servant. He was present at the spot alongwith SI Nitin Nawani to attend a PCR call. During such presence of the complainant to discharge his public duty, the accused had voluntarily obstructed the complainant Constable Nitin Kashyap, a public servant, from discharging his public functions/duty. The accused had also assaulted and used criminal force to deter the complainant Ct. Nitin Kashyap, from discharging his public duties. The accused had also caused hurt to the complainant during the said period. A complaint was made on the basis of which present FIR was registered. After investigation chargesheet was filed for the offences under Section 186/353/323/332 IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 2 of 15 PS : Hauz Qazi of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishable under Section 186/353/323/332 IPC was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 03 witnesses to prove its case against the accused.
5. PW1 Constable Nitin Kashyap is the complainant. He has deposed that on 16.04.2014, he alongwith SI Nitin Nawani had gone to H No.175, Gali Mirjumla, Lal Quan to conduct inquiry on a call. The complainant (PCR caller) was not present there. He contacted the complainant on phone. Complainant told him that his landlord had quarreled with him and the complainant had also given the mobile number of his landlord. Since they did not find any eyewitness and the complainant, they returned to police station. Thereafter, they got another call of the same spot. They went over there and complainant namely Nazir was present there. Accused Munna alongwith another person Md. Arshad gave beatings to the complainant in their presence. SI Nitin Nawani inquired from Arshad and Munna regarding beating on which they took them to the office of Arshad, FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 3 of 15 PS : Hauz Qazi who was a property dealer. In the Office, accused Munna served them cold drinks, which he refused to consume. On this, accused Munna got angry and started telling him that they were favouring complainant Nazir. When he was coming out of the office of Arshad, accused Munna gave him leg blow from his behind (back side). SI Nitin Nawani recorded his statement, which is Ex. PW1/A.
6. Ld. APP had put various leading questions to the witness with the permission of the Court as the witness had not narrated the facts as mentioned in his statement recorded by the IO. The witness admitted the suggestion that on 17.04.2014, accused Munna was arrested in his presence vide arrest memo Ex.PW1/B. He has also admitted that the personal search of accused Munna was conducted vide memo Ex. PW1/C. He has identified accused Md. Gulrez Khan @ Munna in the Court.
7. PW2 SI Nitin Nawani is the first IO. He has deposed that on 16.04.2014, he was on emergency duty in the police station. On that day, at about 4:30 p.m, a call was received regarding quarrel vide DD No.21 A at 1754, Gali Mirzumla. He alongwith Ct. Nitin reached at the spot. They did not find the complainant Nazim. They were returning to PS as it was time of briefing. In the meantime, another call of quarrel at the same address was received FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 4 of 15 PS : Hauz Qazi vide DD No. 24 A. They again reached at the spot. Complainant Md. Nazim was stated to be a tenant in the said property. He had some dispute regarding the rent with the landlord. In the meantime, another two persons named Md. Arshad and Md. Gulrez also came at the spot. Those two persons started abusing the complainant Md. Nazim stating that at no point of time police had come earlier at their home. After sometime, all the persons had agreed themselves to settle the matter amicably. There is an office of Md. Arshad in the Gali. They told them that they all should sit in the Office to discuss the amicable settlement as it was not proper to remain in the gali. They reached in the Office, they offered them Cold Drink. Md. Gulrez told them that they were taking the side of Md. Nazim by not drinking the cold drink. They they tried to come out of the office. In the meantime, accused Gulrez had hit Ct. Nitin with his leg and told that they were taking the favour of Md. Nazim. They returned to PS and informed about the incident to his senior. He had recorded the statement of Ct. Nitin vide memo Ex.PW1/A. He prepared the rukka, which is Ex.PW2/A and rukka was handed over to Constable Nitin for registration of FIR. He went to PS and after some time returned at the spot with FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 5 of 15 PS : Hauz Qazi second IO SI Ved Prakash. Thereafter, he left the spot. PW2 at first instance had failed to identify the accused.
8. PW3 SI Ved Prakash is the second IO. He has deposed that on 16.04.2014, the investigation was markedd to him by the order of SHO, PS : Hauz Qazi. On that day, he alongwith Ct. Nitin Kashypal had reached at the spot i.e., H.No. 1589, Gali Mirjumla, Lal Quan, Delhi where he met with SI Nitin Nawani and owner of the property named Arshad and another complainant Md. Nazim. He made inquiry. Thereafter, he prepared the site plan Ex.PW 3/A at the instance of Ct. Nitin Kashyap. Accused was not present there. Thereafter, he recorded the statement of the witnesses. On next day i.e., on 17.04.2014, he alongwith complainant again tried to search the accused nearby Hamdard Dawakhana, Hauz Qazi. At the instance of complainant, accused Gulrez @ Munna was arrested vide memo Ex. PW1/B. Medical examination was got conducted. He was produced before the learned MM on next day. He had recorded the disclosure statement of the accused before arrest vide memo Ex.PW3/B. He had obtained the complaint under Section 195, Cr.P.C. Additional DCP, Kamla Market. Challan was prepared and it was filed in the Court.
FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 6 of 15PS : Hauz Qazi
9. The witnesses were cross examined by Ld. Defence Counsel. The accused had admitted, under Section 294, Cr.P.C., the complaint under Section 195 Cr. PC, which is Ex. P1. He also admitted the copy of FIR No. 90/14, which is Ex.P2, the certificate under Section 65 B of Indian Evidence Act, which is Ex. P4. The prosecution evidence was closed.
10. Accused was examined under Section 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case. No such incident as alleged had happened.
11. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
12. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was involved in the incident. He was identified by the witnesses in the Court. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 186/353/343/332 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.
FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 7 of 15PS : Hauz Qazi
13. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The accused has been falsely implicated. He was not involved in any such incident. The alleged complainant of the call named Nazim has not been examined as a witness. He was not even mentioned as a witness in the chargesheet. The police had not brought on record any DD entry to prove that they were on patrolling in the area on the relevant date. Mohd. Azhar was not cited as a witness. IO SI Nitin Nawani had failed to identify the accused in the Court. There is no explanation as to why the police officials had returned at the PS and no call was made to the police from the spot itself. The witnesses had made contradictory statements. The site plan is not proper. Statement of Nazim has not been brought on the Court record. No public person was made a witness. There is no mentioning of DD No. 21A in the statement of PW2 recorded by the IO under Section 161 Cr.P.C. The accused is a simple person of the locality. He is a law abiding citizen. He did not have courage to insult or assault any police official. They were two police officials at the alleged time. It is not possible for a common man to FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 8 of 15 PS : Hauz Qazi assault two police officials on duty. It creates reasonable doubts on the testimonies of the witnesses. Hence, it is prayed, the benefit of doubts may be given to the accused and he may be acquitted.
14. I have heard the rival submissions and carefully perused the material available on record.
15. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.
16. In the present case, the accused has been charged for the offences punishable under Section 186/353/332/323, IPC.
17. Section 186, IPC, provides the punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 353 IPC provides the punishment for assaulting or using 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. The common thread running between Section 186, IPC and Section 353, IPC is that the FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 9 of 15 PS : Hauz Qazi offence should have been committed against public official when the official was discharging his official duties as a public servant. So, it is necessary for the prosecution to establish that the complainant was discharging his official duties as a public servant when the accused committed offences with which he is charged in the present case. It has been held by the Hon'ble Supreme Court of India in a three judges bench judgment in a case titled Durgacharan Naik And Ors vs State Of Orissa,1966 AIR 1775: "It is true that most of the allegations in this case upon which the charge under Section 353,Indian Penal Code is based are the same as those constituting the charge under s. 186,Indian Penal Code but it cannot be ignored that section 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 10 of 15 PS : Hauz Qazi body. It is wellestablished that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."
18. In the present case, a complaint under Section 195 Cr.P.C was made by Additinal DCP, Sub Division, Kamla Market, Delhi, who was the senior officer of the complainant at the relevant time. The said complaint is Ex. C1. The complaint has been duly proved. Therefore, compliance of Section 195.Cr.P.C has been done in the present case.
19. Section 332, IPC, provides punishment for voluntarily causing hurt to deter a public servant from his duty. In order to prove the offence punishable under Section 332 IPC, the prosecution has to establish that the complainant / victim was a public servant at the time of incident and that the accused had voluntarily caused hurt to such public servant and further that and at the time of hurt public servant was discharging his duty as such public servant or that the accused had intention to prevent or deter the victim or any other public servant from discharging his duties as such public servant. Section 323, IPC, provides punishment for causing hurt.
FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 11 of 15PS : Hauz Qazi
20. In the present case, it has been proved by the prosecution beyond reasonable doubts that the complainant Ct. Nitin Kashyap is a public servant. The identity of the accused has not been disputed. The defence taken by the accused is that no such incident had taken place as alleged by the prosecution. Therefore, the burden is on the prosecution to prove beyond reasonable doubts that the accused had committed the offence as alleged.
21. In the present case, the prosecution has alleged that accused Gulrez Khan had hit on the leg of complainant / Constable Nitin while he was coming out of the office of Mohd Arshad. As per the prosecution story, complainant / Constable Nitin Kashyap and IO SI Nitin Nawani had gone to the spot on receipt of call regarding quarrel vide DD no. 21A. The DD no. 21 A is Ex.P4.
22. Perusal of the testimonies of PW1 and PW2 would show that there are various contradictions which create doubts on the testimonies of the witnesses and on the fact of happening of alleged incident. PW1 Ct. Nitin Kashyap is the complainant. He has contended that accused had given him a leg blow while he was coming out from the office of Arshad. However, he does not remember as to when and how the accused was arrested.
FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 12 of 15PS : Hauz Qazi PW3 SI Ved Prakash has stated in his examination that the accused was arrested by him at the instance of the complainant on next day. The witness PW1 also does not know the direction of the gate of the office of Arshad. He does not remember the date on which the site plan was prepared and who had prepared the site plan. As per PW3 SI Ved Prakash the site plan was prepared by him at the instance of the complainant on the same day. Only when he was led by the APP, he had admitted those suggestions. All the material facts are sufficient to create reasonable doubts on the presence of Ct. Nitin Kashyap at the spot on the relevant date and time.
23. It is also worth noting that as per the prosecution witnesses PW1 & PW2 when they had reached at the spot on the second call, they had found the caller Nazir at the spot. In their presence, accused Mohd. Gulrez Khan and another person named Mohd. Arshad had given beatings to Nazir. Still those two police officials did not take any action against the accused and abovementioned Mohd. Arshad. Rather, as stated by the witnesses themselves, they tried to get the matter compromised between the parties. The IO and Ct. Nitin Kashyap did not have power to ask the parties to enter into FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 13 of 15 PS : Hauz Qazi any compromise. They should have acted as per the mandate of law i.e., to get a case registered as per law. However, their act of discussing the compromise with the parties was not within their powers and it could not have been called an act in discharge of their official duties.
24. Further, IO PW2 SI Nitin Nawani has not even identified the accused in the Court which is a material fact. As per the prosecution witnesses PW1 & PW2 both of them were present when the alleged incident had taken place. PW1 & PW2 had also remained at the spot for quite a long time with the accused before the incident and after the incident. The accused was not arrested by IO SI Nitin Nawani and he was arrested by PW3 SI Ved Prakash. Had the incident as alleged been taken place, PW2 SI Nitin Nawani must have identified the accused in the Court. The fact that he had not identified the accused in the Court create reasonable doubt on presence of PW2 on the spot at the relevant date and time. As discussed hereinabove, presence of PW1 & PW2 on the spot of the alleged incident has come under the clouds of reasonable doubts.
25. Further, it is also on record that after the alleged incident no PCR call was made by any police FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 14 of 15 PS : Hauz Qazi official to inform about the incident. PW2 in his cross examination has stated that he had informed the DO immediately after the incident. However, there is no DD entry of that effect on Court record. The witness was confronted with his statement under Section 161 Cr.P.C. In his statement under Section 161 Cr.P.C. it is not mentioned that he had informed the DO immediately after the incident.
26. All the abovementioned facts and circumstances create reasonable doubts on the allegation of happening of the incident as mentioned hereinabove. The fact of presence of PW1 & PW2 on the spot at the relevant date and time itself has come under the clouds of reasonable doubts. The accused is entitled to benefits of reasonable doubts. He is therefore, acquitted of the alleged offences.
27. The accused has already furnished bond under Section 437A, Cr.P.C., with one surety along with photographs and copies of address proof. Digitally signed by DINESH DINESH KUMAR Date:
KUMAR 2018.05.02
16:11:08
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 02nd Day of May 2018. MM08 (Central) Tis Hazari Courts, Delhi FIR No. 90/2014 State Vs Md. Gulrez Khan @ Munna Page 15 of 15 PS : Hauz Qazi