Delhi District Court
State vs . Yusuf 1 Of 19 on 5 May, 2016
In the Court of Sh. Vimal Kumar Yadav, Additional
Sessions JudgeII, South District, Saket Court, Delhi.
Session Case No. 100/2013
In the matter of :
State
Versus
Yusuf
S/o. Suleman
R/o. Village Rehana,
District Mewat, Haryana
FIR No. : 45/2013
Police Station : Fatehpur Beri
Under section. : 186/353/307, IPC
Date of assignment : 24.09.2013
Reserved for order on : 18.04.2016
Date of decision : 27.04.2016
JUDGMENT
1. A border checkpost of the Delhi Traffic Police at Aya Nagar was breached by a truck bearing No. HR744748 as the truck driver did not obey the command / signal of the traffic police personnel stationed there on 26.02.2013 at about State Vs. Yusuf 1 of 19 9.30 P.M. to stop, rather the truck driver went past after hitting the barricades put up there. The message was passed on to the other traffic police team, stationed at Sultanpur Metro Station. The truck was again signaled to stop at Sultanpur Metro Station traffic picket when it reached there at about 9.35 P.M. Here again, the similar tactics was adopted by the truck driver, who instead of following the command of a police officials, again went past the barricades after hitting them. However, the traffic team was prepared this time and chased the offending truck. In this pursuit, a PCR van which had reached there incidentally in respect of a road traffic accident call also joined the traffic police's gypsy and policemen on motorcycles. The driver took a U turn to go back towards Gurgaon on the MG Road itself but was forced by traffic and circumstances to halt. The driver alighted from the truck and tried to escape but was chased, caught and brought before the TI at Sultanpur Metro Station. He was challaned for various traffic violation and the truck was seized by the Traffic State Vs. Yusuf 2 of 19 police.
2. An FIR was registered on the next day at police station Fatehpur Beri on the complaint of Constable Kuldeep whom the offending truck tied to mow down and that is how an FIR under sections 186/353/307, IPC came into existence.
3. After compliance of Section 207, Cr.P.C., on account of allegations under section 307, IPC, the case was made over to the Court of Sessions. Based upon the allegations on record, a prima facie case was found against the accused Yusuf under sections 186/353/307, IPC, read over and explained to him in vernacular, and accordingly, a charge was framed against accused, to which he pleaded not guilty and claimed trial.
4. Of the 21 witnesses sought to be examined against the accused, all were examined and that is how, the prosecution evidence was concluded on 03.03.2016.
5. The evidence, which came on record, was put to the accused Yusuf and his statement was recorded under State Vs. Yusuf 3 of 19 section 313 Cr.PC in which he, expectedly, controverted the evidence against him and asserted that he has been falsely implicated in this case. He, however, did not opt to lead evidence in his defence.
6. Arguments were raised by Sh. Ashok Kumar, Additional Public Prosecutor for State and Sh. L.K. Verma, Advocate, Counsel for accused.
7. It is contended by the Ld. Addl. PP that the statements of the traffic police officials and the PCR officials who were present at the scene of crime namely ASI Satender, Ct. Kuldeep, Ct. Meharchand, Ct. Ombir, Ct. Anup, SI Laliram, Inspt. Ashwini Khosla and Inspt. Vinod Pal coupled with the statement of HC Kailash to the effect of posting of the police officials in the traffic circle of Mehrauli, prosecution was able to show that two traffic police pickets were there having deployment of traffic police officials consisting of the aforesaid persons, first on Aya Nagar and second at Sultanpur Metro Station. The witnesses have deposed that the accused not State Vs. Yusuf 4 of 19 only flouted the lawful command / direction of the traffic police officials by not stopping the truck but in the process of escaping hit the barricade put up by the police also and tried to run down and crush the police officials as well. It is submitted that the accused was apprehended almost at the spot itself when the similar act was repeated at Sultanpur Metro Station. There is no dispute of his identity / involvement in the incident. Therefore, the prosecution is able to discharge its burden and that brings the case against the accused u/Ss 186/353/307 IPC.
8. Ld. Counsel for the accused on the other hand submitted that the story put forward by the police officials is not digestable in view of the fact that there is an unexplained delay in the registration of the FIR as the incident took place in the night of 26.2.2013 whereas the FIR was registered on 27.2.2013 despite the fact that the police from local police station had reached at the spot at the same night. The absence of any explanation, according to the Ld. Counsel for State Vs. Yusuf 5 of 19 the accused is on account of the fact that there was merely traffic violation by the accused but the traffic police officials wanted to implicate the accused in the graver offences under IPC but no one was coming forward to make the statement to the effect which the Traffic Inspector wanted and that got the FIR delayed.
9. It is further submitted that the siteplan is also not appropriate as it is not showing the position of the barricades as to how the barricades were placed nor is it reflecting the location of the police officials so that it may be inferred that the truck went into the particular direction trying to run the police officials so that Section 307 IPC may be invoked. It is further pointed out by the Ld. Counsel for the accused that the witnesses were not aware about the number of barricades and colour of the barricades and if the testimony of the Mechanical Inspector is looked into then it would be revealed that no such colour or mark was found on the body of the truck showing that the barricades were hit by the accused and State Vs. Yusuf 6 of 19 for that matter, the witnesses are not able to point out as to which barricade, on the left hand side or the right hand side, was hit by the accused, thus it is marred by inconsistencies and discrepancies.
10. The testimony of the witnesses i.e. PW2 Ct. Mehar Chand, PW3 Ct. Kuldeep, PW4 HC Kailash, PW7 Ct. Ombir, PW11 Inspt. Ashwani Khosla and PW12 HC Joginder are consistent on the following aspects that accused was driving the truck at a reasonably fast speed. The flow of traffic at the relevant place was also deposed by them that it was there, however, PW1, PW7 and PW11 found that traffic was not there whereas PW14 and PW15 found that there was heavy traffic on the roads which could for two reasons that they were at two different places and volume of traffic is variable. However, except this the witnesses have in unison deposed that the offending truck bearing no. HR74 4748 was flagged by them to stop at Aya Nagar police barricade but the offending truck, which was being driven by the accused, State Vs. Yusuf 7 of 19 instead of stopping or adhering to the commands of the police, hit the barricades and escaped from there and in the process, the traffic policemen were to save themselves from the attempt of the accused to crush them which could have resulted into fatal injuries to them.
11. The events that took place at Sultanpur Metro Station have also been deposed by the witnesses who were present there which is to the effect that accused was signalled to stop but instead of doing that he hit the barricades and tried to escape but the traffic policemen at Sultanpur Metro Station were already prepared since they had received the information from Aya Nagar personnels and therefore, the offending truck was chased and the accused was apprehended. In the chase, the PCR vehicles also joined the traffic policemen, which was incidentally present there.
12. The testimony on record which remained unshaken and unrebutted on the aforesaid aspects brings the guilt of the accused in non complying with the directions of the State Vs. Yusuf 8 of 19 public servant who was performing his duty as such, public servant. This brings in Section 186 IPC into the picture. The police personnels were on duty at the two pickets, has been deposed by HC Kailash who brought the evidence qua deployment of the traffic police official on the relevant date, time and place, through Ex.PW4/A to C. The policemen are public servants and at that time they were performing their public functions in the capacity of public servants. Being the traffic policemen they had every right to check the vehicles etc. They had signalled the offending truck to stop, was thus a lawful command and flouting that amounts to disobeying the lawful command and that amounts to a kind of obstruction to the public servant in the process of execution of public function of a public servant.
13. The remaining two allegations u/S 353 and 307 IPC are yet to be seen whether it is there or not. The testimony on record is to the effect that the accused tried to run down the traffic police personnels in his bid to escape State Vs. Yusuf 9 of 19 from the scene but the testimony of the witnesses collapse in the cross examination where PW7 stated that driver went to the service lane in order to run away, thus, not to run down the police personnels. Incidentally, he has also stated that in order to save the police officials obviously from the potential accident. PW11 has also stated that accused resorted to service lane whereas PW12 has stated that he is not personally aware whether accused / offending truck tried to hit the traffic Inspector as he only heard about it. PW1 did not mention this fact in the challan and PW4 has also stated that the accused / offending truck did not try to hit the gypsy in which he was sitting, whereas PW7 stated that the accused tried to hit the gypsy. On this aspect, the variation in the testimony of the witnesses reflect that the prime focus and the aim of the accused was to somehow escape from the scene. PW7 has stated that the accused drove the truck in the service lane in such a manner so that police personnels are not hurt and that takes the sting out of the prosecution's case State Vs. Yusuf 10 of 19 so far as allegations u/S 307 IPC are concerned but the same cannot probably be said so far as Sec. 353 IPC is concerned. Although the assault was not there but force as has been defined in Sec. 349 IPC and the use can be seen to have been there where the driving of the accused compelled the policemen to bring them into a kind of motion in order to save themselves from the impending and potential accident and injuries. The motion caused by the accused in the situation of the policemen, albeit through the movement of the truck which was in the control of the accused amounts to use of criminal force and that brings the act of the accused in the scope and ambit of Sec. 353 IPC conclusively.
14. The presence of the accused at the spot can't be denied by him and in any case has been brought on record through the evidence of the witnesses. The same stands corroborated and supplemented by the PCR official and the traffic challan which has been of the same date, time and place, which has been reportedly, not contested by the State Vs. Yusuf 11 of 19 accused and that leaves practically, no scope for him to take a stand that he was not involved or not present at the spot etc.
15. The contention of the Ld. Counsel for the accused that Sec. 300 Cr.PC containing the principles of double jeopardy comes into play stands negated in view of the provision in sec. 220Cr.PC and the arguments gets nullified.
16. The delay in registration of the FIR is there but that does not cause any prejudice to the accused. The contention of Ld. Counsel for the accused that the Traffic Inspector wanted to implicate the accused for an offence u/S 307 IPC has not been substantiated. There appears to be a plausible explanation to the delay too. The incident happened at around 9:30pm or so and the traffic officials were finishing their shift at 10pm. All the material facts were there, since accused was already challaned for traffic violation, therefore, in these circumstances, if the FIR was registered on the next day morning or afternoon at 1:00 or 1:30pm, then it can't be State Vs. Yusuf 12 of 19 taken as ground to disbelieve the case of the prosecution.
17. As regards the discrepancies pointed out by the Ld. Counsel for the accused that the witnesses being not aware of the exact number of barricades, their colour and which barricade, left or right was hit by the offending vehicle, the same are not such which may affect the basic aspect of the case that accused was signalled to stop who did not adhere to the command and ran away from the spot; especially, when the witnesses have deposed about the incident otherwise bringing in the necessary facts. If one visualises the situation, it would appear very charged and in these circumstances, it is not unusual to skip some minor details here or there. In this context reference can be made to the judgment in Narayan Chetram Chaudhary Vs. State of Maharashtra, (2008) 8 SCC 457 where it was observed that only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witnesses. Reference in this context may be made to the State Vs. Yusuf 13 of 19 judgment in State of Rajasthan Vs. Kalki and Another (1981) 2 SCC 752, where it has been observed in the following words;
"In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected to a normal person. In a recent judgment in Rohtash Kumar v. State of Haryana, 2013 III AD (Cri) (SC) 369, it has been observed by the Hon'ble Supreme Court in following words : It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not got to the heart of the matter, and shake the basis version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor State Vs. Yusuf 14 of 19 discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (see State of UP v. M K Anthony, AIR 1985 SC 48; State rep. By Inspt. of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of MP, (2010) 8 SCC 191).
18. The prosecution has, thus, established on record that Traffic policemen were on duty at Aya Nagar Check Post and Sultanpur Metro Station. Accused who was driving the truck was signalled to stop at Aya Nagar but he did not and escaped from there after hitting the barricades and repeated his act when flagged to stop at Sultanpur Metro Station by Traffic Policemen. Evidently, lawful command was violated and that amounts to obstruction in the public functions of the policemen. The subsequent act of hitting the barricades was seemingly to deter the policemen from further proceeding with their functions. That amounts to use of force and these facts bring the act and conduct of accused, Yusuf, where identity is not disputed, and thus, he is apparently liable for the offences u/S 186/353 IPC. As discussed, hereinbefore, the ingredients State Vs. Yusuf 15 of 19 of Sec. 307 IPC could not be established by prosecution, thus, he stands acquitted of the charge u/S 307 IPC. However, he is held guilty and convicted u/S 186/353 IPC.
Announced in the open Court (VIMAL KUMAR YADAV)
On 27th day of April, 2016 Additional Sessions JudgeII,
South District, Saket Courts,
New Delhi
State Vs. Yusuf 16 of 19
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions JudgeII, South District, Saket Court, Delhi. Session Case No. 100/2013 In the matter of :
State Versus Yusuf S/o. Suleman R/o. Village Rehana, District Mewat, Haryana FIR No. : 45/2013 Police Station : Fatehpur Beri Under section. : 186/353 IPC Date of judgment : 27.04.2016 Date of order on sentence : 05.05.2016 ORDER ON SENTENCE Present: Sh. Ashok Kumar, Ld. Addl. PP for State.
Convict in person with Sh. Dinkar Verma, Ld. Counsel.
1. Written submissions have been filed and the same has been reiterated by the Ld. Counsel by saying that the convict is a young man of about 32 years of age having 06 children, a wife and aged parents to look after. He has spent about a month and a half in custody, he has clean antecedents and has never ever State Vs. Yusuf 17 of 19 been involved in an offence of any nature. In view of these facts, it is submitted that the applicant may be released against the period of custody undergone by him.
2. Ld. Addl. PP on the other hand while seeking considerable and commensurate punishment for the convict submitted that the acts of the convict defy the public functioning and that too in the manner in which the convict has done, leaves no scope for him to be considered for any light sentence. He is a professional truck driver and very well aware of the traffic rules and requirements and also the role of the traffic police. He should have adhered to the traffic commands of the Traffic Inspector but he instead chose not only to defy the command but in the process used force also. With these words, Ld. Addl. PP advocated for an appropriate punishment.
3. After taking into account the contentions raised by the contesting sides and the fact that accused has to shoulder the responsibility of his children whose well being which include moral, material and educational requirements, depend upon the earning capacity of the convict. In such circumstances, if the care protection and financial resources of the family dry up which is most likely to be the situation if the convict is punished with custodial sentence, the consequences of the punishment goes beyond the convict and affects his family very adversely, as the eldest child is only 12 years of age. In such circumstances, custodial punishment would render the family of the convict vulnerable for all sorts of complications in the society. Therefore, State Vs. Yusuf 18 of 19 considering the aforesaid aspects and the circumstances in which the offence took place coupled with the fact that the convict has been in custody for more than a month, therefore, he must have realised his fault. However, keeping in mind that he is a professional driver and therefore, requires to be put in a certain constraints, therefore, in the facts and circumstances, it appears appropriate to extend the benefit of probation to the convict.
Accordingly, he is extended the benefit of probation and released on a bond of Rs. 25,000/ for one year with a surety of the same amount with the condition that he shall come and receive the punishment, if such, an eventuality arises. He is further sentenced to pay a sum of Rs. 4,000/ as cost of proceedings which shall be recovered as fine in case the convict fails to pay the same.
4. Copy of the judgment and order on sentence be provided to the accused free of cost.
5. File be consigned to Record Room.
Announced in the open Court (VIMAL KUMAR YADAV)
On 05th day of May, 2016 Additional Sessions JudgeII,
South District, Saket Courts,
New Delhi
State Vs. Yusuf 19 of 19