Delhi District Court
State vs Mamraj on 26 February, 2011
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. 370/1/10
State
Versus
1. Mamraj
S/o Surat Singh
R/o A64, Mandawali
Fazal Pur, Delhi.
2. Raj Kumar
S/o Daya Nand
R/o H. No.95, Village Nawada
P.O. Uttam Nagar, Delhi.
Case arising out of :
FIR No. 81/92
P.S. : Rajouri Garden
U/s : 186/341/353/332/34 IPC
Date of FIR : 31.01.1992
Date of Institution : 08.02.1993
Date of Final Arguments : 24.2.2011
Judgment reserved on : 24.2.2011
Date of Judgment : 26.2.2011
S.C. No. 329/1/10 Page 1/15
JUDGMENT
1. This case is against the accused Mamraj and , Raj Kumar has been committed to the court of sessions whereas the accused persons were facing the charges in FIR No. 82/92, PS Rajouri Garden Under section 341/186/332/333/34 IPC.
2. It is alleged against the accused persons that the accused Mamraj and Raj Kumar along with other persons (not arrested) on 31.01.1992 at 02:30 PM at PWD Office, 14 Shivaji College Road, near Raja Garden voluntarily obstructed Arun Kumar Singh, a public servant in the discharge of his public function. On the same date, time and place in furtherance of their common intention both accused persons along with other associate (not arrested) assaulted or used criminal force to Arun Kumar Singh with intend to prevent or deter him from discharging his duty and wrongfully restrained and caused grievous hurt to Arun Kumar Singh and committed offence punishable under section 186/353/341/333 IPC. The accused persons pleaded not guilty and claimed trial.
3. In order to substantiate the allegations against the accused persons, the prosecution examined PW1 HC Ratan Chander who received the information on wireless on 31.01.1992 at 03:12 PM regarding some quarrel near Shivaji Park. The said information was endorsed into writing daily diary number 41 vide Ex.PW1/A and the S.C. No. 329/1/10 Page 2/15 same was handed over to ASI Mahender Singh for further investigation.
PW2 HC Sumer Singh recorded the FIR no. 81/92 on the basis of rukka prepared by ASI Mahender Singh and received through Ct. Suresh. The copy of FIR is Ex.PW2/A. PW3 Anil Gandhi was employee of PWD Office at Raja Garden on the relevant date and time, stated that on 31.1.92 at about 02:30 PM, 5060 union workers gathered outside the office and waiting for Junior Engineer to discuss their difficulties. At about 02:30 PM, as soon as sh. A.K. Singh, Junior Engineer entered into his room, the mob also entered into his room after discussing their problem with him and the mob started shouting. He along with Ravinder Singh was inside the room at that time immediately came out and called the PCR. Police came at the spot and apprehended 23 persons. He was declared hostile and cross examined by Public Prosecutor for state and admitted in the cross examination that he saw the accused Raju in the office of A.K. Singh along with 5060 persons. But he has seen Mamraj in the police station. He cannot say whether the accused Raju along with other associates started beating A.K. Singh. He could not see the incident inside the room as he came out of the office when the mob entered. He cannot say whether the accused Mamraj was apprehended by the staff at the spot. He does not know whether A.K. Singh sustained any injury in the incident or not. He has seen him with torn shirt. Police has S.C. No. 329/1/10 Page 3/15 recorded his statement. He is unable to recollect whether he has stated to the police that the accused Raju came along with 5060 persons and entered in the office of A.K. Singh and caused injuries on his person. He is also unable to recollect whether Mamraj was apprehended at the spot or not. He also confronted from his earlier statement recorded during the course of investigation. He has denied each and every suggestion put to him by Ld. APP. It is also denied that he has been won over by the accused persons.
In the cross examination on behalf of the accused persons, he further testified that he did not give the name of the accused Mamraj to the police but Mamraj was shown to him in the police station. He cannot tell what was the demands. The name of Mamraj was disclosed at the police station first time as he was not aware of his name.
PW4 A.K. Singh stated that on 31.01.1992, he was posted as junior engineer at PWD14, Raja Garden. On that day at about 0303:15 PM, came back in the office at Raja Garden from his division office and found mob of 5060 persons when he entered into his office, the mob also entered into his office room. The accused Raj Kumar was also a member of the mob. Some of them started abusing and beating him. PCR reached at the spot and rescued him from the mob. He was medically treated for his injuries in DDU Hospital. The accused Raj Kumar is the leader of the mob of the labour union at that time. The mob torn his clothes. He made complaint Ex.PW4/A to the police. He S.C. No. 329/1/10 Page 4/15 has seen the accused Mamraj first time in the police station, his torn clothes were taken into possession vide seizure memo Ex.PW3/A. He sustained the fracture in his right hand. The site plan Ex.PW4/B was prepared on his instance. The torn clothes identified, one sweater and one shirt and both are collectively Ex.P1. The PW A.K. Singh also declared hostile and cross examined by Additional Public Prosecutor. In cross examination it is denied that he has seen the accused Mamraj at the spot itself also and he was apprehended there or that he has named him in his complaint Ex.PW4/A, as was made free from the accused Mamraj by the PCR staff who reached on the spot.
The PW4 was also cross examined by defence counsel and in the cross examination it is admitted that the accused Raj Kumar was outside the room near the gate and he addressed him to go to the concerned persons. The accused Raj Kumar instructed the person to approach the competent persons but the persons sitting inside the room started manhandling him. Except the hospital, police never took him anywhere nor they have contacted him regarding the incident. He cannot identified the persons who manhandled him as they were outsiders and they were not working with him. As such he has not given their names in his complaint. Nobody was apprehended by the police who attacked him as they absconded from the spot.
PW5 Ravinder Kumar testified the version of PW3 Anil Gandhi and PW4 A.K. Singh and further stated that the accused Raj S.C. No. 329/1/10 Page 5/15 Kumar and his companion wanted to talk to PW4 A.K. Singh who told them to talk to the R.S. Hans, Subdivision officer who was at that time posted at divisional office Dhaula Kuan. At this, the accused Raj Kumar agreed to talk to R.S. Hans. Then in the meantime, some of the public person who came along with accused Raj Kumar, started abusing Mr. A.K. Singh and caught hold him as they were unable to handle the situation and rushed to the PCR Van stationed near Shivaji college. As soon as PCR Van came to the spot, all the public persons including Raj Kumar managed to escape from there. Thereafter, they have been called to the police station and shown them the accused Raj Kumar and Mamraj. He has seen the accused Mamraj first time in the police station. PW Ravinder Kumar also declared hostile by Ld. APP and confronted from his earlier statement recorded during the course of investigation and denied each and every suggestions. It is also denied that he has been won over by the accused persons and deposing falsely.
PW5 Ravinder Kumar also cross examined by defence counsel and in the cross examination also admitted that when the accused persons approached to A.K. Singh, junior engineer for their grievances, he advised to approach to SDO. Accordingly, Raj Kumar left the office of A.K. Singh. He had not seen the accused Mamraj at the place of occurrence at the relevant time.
PW6 Ct. Suresh Kumar remained with the IO during the course of investigation and taken the rukka for registration of FIR. S.C. No. 329/1/10 Page 6/15
PW7 W/HC Vandana posted at police control room and received a call about a quarrel near Shivaji college, PWD Office on 31.01.1992 and she informed to police post Raghubir Nagar, PS Rajouri Garden on wireless. In which respect, DD No.21 Ex.PW1/A was recorded.
PW8 Dr. Yashpal conducted the XRay on 31.01.1992 on the injured A.K. Singh and prepared the report Ex.PW8/A whereas found fracture on the right hand. His report is Ex.PW8/A. MLC Ex.PW8/B and the result was opined as nature of injuries as grievous. In the cross examination of the defence counsel, it is admitted that the injuries can be sustained by simple impact on any hard object and it can be caused due to fall. But he cannot say whether the said fracture could have been occurred due to struck of hand with any furniture, almirah etc.
4. After conclusion of this evidence, the prosecution evidence was closed and the statement of the accused person under section 313 Cr.P.C. was recorded. They have denied the same with the contentions that the same is false and incorrect. It is a false case and do not want to lead any defence evidence.
5. I have heard the submissions of Ld. Counsel for the accused and Ld. APP for state and carefully gone through the material on record.
6. Ld. Additional Public Prosecutor argued that the prosecution S.C. No. 329/1/10 Page 7/15 examined all the material witnesses to prove the prosecution case and their testimony are trustworthy and believable.
7. Per contra, during the course of arguments, Ld. Defence counsel submitted that there is no iota of evidence to bring home the guilt of the accused as per the charges framed against them. The complainant PW4 A.K. Singh did not prove the presence of the accused Mamraj at the spot as he has stated that the accused Mamraj was seen by him first time in the police station. So far as with respect to the accused Raj Kumar, it was stated that he has seen the accused Raj Kumar standing outside the room near the gate. The accused Raj Kumar instructed the persons to approach the competent person but some persons sitting in the room started manhandling him. The PW Anil Gandhi and PW5 Ravinder Kumar also did not support the prosecution version on any material point despite they have been declared hostile and cross examined at length by Ld. Public Prosecutor and also confronted from their earlier statement. It is further urged that the complaint under section 195 Cr.P.C. has not been proved by any competent and authorized person, the MLC too and the documents prepared during the course of investigation. The PW R.S. Hans who filed the complaint under section 195 Cr.P.C.; Dr. J.K. Tyagi who prepared the MLC; Dr. Chaman given opinion on the MLC, ASI Mahender Singh investigating officer, MHC(M) have not been examined. Even though they are the material witnesses to prove the S.C. No. 329/1/10 Page 8/15 charges against the accused persons. In these circumstances, the accused persons are liable to be acquitted.
8. In view of the submissions made, for the purpose of proving the offence under section 186 IPC, the complaint under section 195 Cr.P.C. is to be proved by the another competent person. Section 195 (1) Cr.P.C. stated that :
"(1) No court shall take cognizance :
(a) (i) of any offence punishable under section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, S.C. No. 329/1/10 Page 9/15 or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (i) or subclause (ii).
Except on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf, or of some other court to which that court is subordinate....."
9. Complaint in writing of the public servant concerned, or of some public servant to whom they are subordinate is required.
10. Where no written complaint for an offence under section 186 was given by the competent officer or a person who was prevented by the accused in discharge of duties, the cognizance could not be taken in view of the bar under section 195 Cr.P.C.
11. The statement made by the complainant under section 161 or 164 Cr.P.C. could not be constituted written complaint as provided under section 195 Cr.P.C.
12. The cognizance of the offence under section 186 on the police report in itself if bad in law and the entire trial based on such record is vitiated. Moreover, adding an offence punishable under section 353 IPC, in order to circumvent the procedure when the case fall within the purview of section 186 was not proper.
13. Further no assault or abuses were caused against the public servant and the Arun Kumar Singh and the accused Raj Kumar only S.C. No. 329/1/10 Page 10/15 met to the complainant to put forward their grievance when the complainant told that he is not the competent person, the grievances is to be heard by R.S, Hans, SDO, then the accused Raj Kumar came back from the office of the complainant. There is no act done by the accused to prevent the complainant from doing official duty and abuse or used the criminal force so the ingredients for the offence under section 186/353 IPC are not attracted.
14. The offence under section 186 and 353 were alleged to be committed in the course of same transaction and same cannot be split up to avoid provison of section 195 and trial of offence under section 186/353 without special complaint as required under section 195 Cr.P.C. is illegal.
The complaint under section 195 Cr.P.C. filed by Assistant Engineer R.S. Hans, Sub Devision Officer against the accused persons is not proved either in the statement of the complainant, investigating officer or of the statement of the author of the complainant.
15. The incident took place on 31.01.1992. The challan was filed on 08.02.1993, the charge was framed on 12.01.1998. the period of limitation for taking cognizance of offence under section 186 is one year. The cognizance taken beyond period of limitation is barred under section 468 Cr.P.C. and bad in law.
16. So far as, with respect to the offence under section 333/341/34 IPC, all the public witnesses, PW3 Anil Gandhi, PW4 S.C. No. 329/1/10 Page 11/15 A.K. Singh and PW5 Ravinder Kumar have not stated anything against the accused persons as to whether they are the same person who assaulted to the complainant. The PW3 Anil Gandhi stated that he saw Mamraj first time in the police station and does not know anything more about the incident and further stated that accused Raju present in the court was entered in the office of A.K. Singh along with 5060 persons and he is unable to recollect whether he has stated to the police that the accused Raju along with 5060 persons came and caused injuries to the complainant. Similarly, PW4 A.K. Singh stated that the mob torn his clothes and it is denied that the accused Mamraj was apprehended at the spot and he was free from the accused Mamraj. He cannot identify the persons who manhandled him as they were outsiders. PW5 Ravinder Kumar stated that the Raj Kumar alongwith public persons started abusing to A.K. Singh and caught hold him. He has seen the accused Mamraj first time in the police station. He has not seen the accused Mamraj at the place of occurrence at the relevant time and further suggestions were also denied.
17. Section 333 IPC defined and provided for aggravated form of offence which the proceeding section deal with the hurt cause it must be grievous firstly when grievous hurt is caused while the public servant is in the discharge of his duty, as such public servant; in this case motive and object are relevant. Secondly, when a public servant is prevented or deterrent from discharging his duty as such public servant; S.C. No. 329/1/10 Page 12/15 in this case it is necessary that object of the accused should be to deter the public servant from discharging his duty but it is not necessary to prove any motive. Thirdly when the public servant is assaulted in consequence of anything done or attempted to be done by that public servant in the discharge of his duty; in this case it is not necessary that the public servant should be discharging his duty at the time of assault.
18. In the instant case none of the public witness including the complainant PW4 A.K. Singh had ever been stated that the accused Raj Kumar have caused assaulted him or he was suffered a fracture due to impact on any hard object caused by the accused Raj Kumar or Mamraj. The PW3 Anilkant Gandhi stated that he do not know anything about the incident. PW5 Ravinder Kumar, stated that the Raj Kumar a came alongwith the public persons who abuses to the complainant A.K. Singh and caught hold him. All the public persons including the accused Raj Kumar managed to escape from the spot after arrival of the PCR Van. In these circumstances none of the public witness have specifically alleged anything against both the accused persons as they have caused any injury on the person of injured/complainant A.K. Singh. The Dr. J.K. Tyagi who prepared the MLC and Dr. Chaman who give the opinion on the MLC regarding nature of injury, has not been examined. The PW8 Dr. Yashpal who prepared the Xray plats is only witness is examined as a medical expert. On these score the ingredients of offence u/s 333 IPC has not S.C. No. 329/1/10 Page 13/15 been proved.
19. The evidence of all the three public witnesses are not found to be reliable regarding the fact that the accused persons had caused any grievous injury to the complainant A.K. Singh. The question of intention or knowledge to cause the grievous injury does not reflect either from the statement of public witnesses or from the medical expert evidence. There is no such opinion was gathered either from the circumstances or from statement of public witnesses including complainant PW4 or so8ght from the expert opinion.
20. Therefore, in view of the aforesaid discussion, fact and circumstances of the case, prosecution is unable to prove the charges against the accused persons, as the testimony of all the prosecution witnesses do not corroborate the allegation/charges. Even through the FIR was registered in the way back in 1992 approximately about 19 years and prosecution not being able to examine all the prosecution witnesses as cited in the list of witnesses. All the public witnesses including the complainant are hostile. The doctor concerned who proved the MLC has not been proved in accordance with law. The investigating Officer , who conducted the investigation and prepared the document is also reported to be expired. In these circumstances both the accused persons namely Mamraj S/o Surat Singh and Raj KumarS/o Daya Nand are hereby acquitted by granting a benefit of doubt. Their bail bonds and surety bonds are cancelled and their S.C. No. 329/1/10 Page 14/15 respective sureties are also discharged. Case property if any be disposed of in accordance with law. File be consigned to Record Room.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 26.2.2011 (WEST02):DELHI
S.C. No. 329/1/10 Page 15/15