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Fir No. 221/2008, Ps : New Ashok Nagar, ... vs . Praveen & Ors. on 28 October, 2020

        FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors.
             (CNR No.DLET02-001061-2009) (CC No. 11252/2016)



        IN THE COURT OF ADDITIONAL CHIEF
  METROPOLITAN MAGISTRATE (EAST DISTRICT)
    KARKARDOOMA COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.

IN THE MATTER OF :
State Vs. Praveen & Ors.
FIR No. 221/2008
PS : New Ashok Nagar
U/s 186/353/332/34 IPC

Date of Institution                                    : 02.06.2009
Date of reserving of order                             : 01.10.2020
Date of Judgment                                       : 28.10.2020
JUDGMENT

1.   CNR No.                             : DLET02-001061-2009
2.   Serial No. of the case              : 11252/2016
3.   Name of the Complainant             : Ct. C.M. Nagraj
4.   Date of incident                    : 04.07.2008
5.   Names of accused persons            :
           1. Ravi S/o Jagdish R/o Village Dallupura,
           Badwala Mohalla, Delhi.
           2. Praveen S/o Babu Ram R/o House no.
           265, Village Dallupura, Delhi.
6. Offence for which chargesheet
   has been filed               : S.186/353/332/34, IPC




Page 1 of 29                              ACMM/EAST/KKD/DELHI/28.10.2020

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016)

7. Offence for which charge has been framed : S.186/353/332/34, IPC

8. Plea of accused : Not guilty

9. Final Order : Convicted

10. Date of Judgment : 28.10.2020 BRIEF REASONS FOR ORDER:

1. Mr. Praveen and Mr. Ravi, the accused herein, have been charge-sheeted for committing offences punishable under Section 186/353/332/34, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 04.07.2008, complainant Ct. C.M. Nagraj, posted at Kalyan Puri Traffic Circle, Delhi Traffic Police, was on duty at a crane to stop unauthorized parking of vehicles on the road. The driver of the crane and a helper were also with him. At about 7.15 p.m. they reached at opposite Dharamshila Cancer Hospital. They found a vehicle bearing no.DL1LV 2071 parked on the wrong side of the road there on the spot. It was causing obstruction in the free movement of the traffic on the road. He directed the helper and the driver of the crane to tow the vehicle away. In the meantime the accused persons along with their associate Inder (since Page 2 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors.

(CNR No.DLET02-001061-2009) (CC No. 11252/2016) deceased) reached at the spot. They asked the complainant not to remove the said vehicle from the spot as they were local persons of the area. They tried to intimidate the complainant by disclosing their local caste identity. However, the complainant asked the driver and the helper to continue with the work of towing the vehicle away. At this, all the three persons started beating the complainant with legs and fists blows. One of the accused brought an iron rod out of the said vehicle and hit the complainant on his head. Blood started oozing out from the wound. The accused persons also torn his uniform shirt. Public persons had also gathered on the spot. Both the accused were apprehended by the public persons. However the third person was able to run away. Public persons had beaten the accused persons. Someone had also called the PCR. Police officials reached at the spot. The complainant was taken to the hospital. On the basis of the statement of the complainant, present FIR was registered. Both the accused were arrested. Later on, Inder Kumar (since deceased) was also arrested. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused persons along with Inder Kumar (since deceased) were charge-sheeted for committing the offences Page 3 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) punishable under Section 186/353/332/34, the Indian Penal Code.

3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused persons and Inder (since deceased). They appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 186/353/332/34 IPC, was framed against accused Praveen, Ravi and Inder (since deceased). It was read over to them, to which they pleaded not guilty and claimed trial.

4. During the trial, accused Inder expired and proceedings against him were abated vide order dated 11.02.2014.

5. Prosecution has examined 4 witnesses to prove its case against the accused persons.

6. PW-1 Ct. C.M. Nagraj is the complainant. He would depose that on 04.07.2008, he was posted at Kalyan Circle as constable and was on duty on a crane from 8 a.m. to 8 p.m. to lift the vehicles which were parked in 'No Parking' area. Helpers namely Chanden and Anandeep and driver namely Roodal were Page 4 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) also on duty with him. They were going towards Vasundhra Enclave and were checking the vehicles which were parked in 'no parking' area. At about 7:15 p.m., they reached in front of Dharamshila Cancer Hospital, where a vehicle having registration no. DCM-DL-1LV-2071 was stationed on wrong side of 'no parking' area. He instructed the helper to tow the said vehicle as it was obstructing the flow of traffic. In the meanwhile, three persons stating to be of Dallupura came there and started quarreling with them. Those persons stated that they could not remove the said vehicle and that they would park the vehicle in 'No Parking' area. Thereafter, those persons took out a rod from their vehicle and gave beatings to them by the said rod. They also gave beatings with fists and blows. Due to said beatings, blood started oozing out from his head. Said persons also torn his uniform. After hearing the noise, public persons gathered at the spot and they caught hold of two persons out of those three persons On inquiry, accused persons disclosed their names as Ravi and Praveen. He called the PCR. Police as well as traffic inspector came at the spot. Police recorded his statement Ex. PW- 1/A. Thereafter, both the accused were handed over to the police and they were arrested by the IO vide memo Ex.PW-1/B and Page 5 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) Ex.PW-1/C. Personal search of the accused persons was also conducted vide memo Ex.PW-1/D and Ex.PW-1/E. Thereafter, he along with his team members were sent to LBS hospital for medical treatment. On 05.07.2008, the IO seized his torn uniform vide memo Ex. PW-1/F. Later on, Inder was also arrested. IO also recorded his supplementary statement under Section 161, Cr.P.C.

7. The witness identified both the accused persons in the Court. He also identified the case property (the torn uniform shirt seized by the IO). The same is Ex. P-1.

8. PW-2 Dr. Sunita Paria is the doctor who had medically examined the complainant and the accused persons at LBS Hospital after preparation of their MLCs. He has proved the MLCs as Ex.PW2/A, Ex. PW2/B and Ex.PW-2/C.

9. PW-3 Sh. Anand Yadav is stated to be the helper of the crane and one of the victim. He would depose that he did not know anything about the case. Nothing had happened in his presence. He did not identify any of the accused persons.

10. PW3 was declared hostile by the state. He was cross- examined by Ld. APP at length. However, he denied all the Page 6 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) relevant suggestions given to him. He also denied putting his signatures on any of the documents shown to him.

11. PW-4 Inspector Rajesh Dangwal was the Investigation Officer. He would depose that on 04.07.08, he was on 'day emergency duty' from 8 a.m. to 8 p.m. On that day, after receiving DD No. 34-A, he reached near Dharamshila Hospital alongwith Ct. Om Dutt, where one traffic constable named C.M. Nagraj met with him in injured condition. His uniform shirt was in torn condition. He also met with two persons, i.e., accused Praveen and Ravi, who were already beaten by public persons. He called duty officer and informed him to send more police staff at the spot. After some time, Ct. Karan, Ct. Mahak Singh and Ct. Narender also reached at the spot. Thereafter, he alongwith Ct. C.M. Nagraj, accused Praveen and Ravi and other police staff reached at LBS Hospital, where MLCs of Ct. CM Nagraj and accused Parveen and Ravi were prepared. He recorded statement Ex. PW-1/A of Ct. C.M. Nagraj at hospital. He prepared rukka and same was handed over to Ct. Om Dutt for registration of FIR. Thereafter, they came back at the spot. He prepared site plan Ex. PW-4/A at the instance of Ct. C.M. Nagraj. Ct. Om Dutt returned at the spot alongwith copy of FIR and rukka and handed over the Page 7 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) same to him. Three eye-witnesses namely Rudal Yadav, Chandan and Anandi, who were driver/helpers of traffic crane also met with him. Ct. C.M. Nagraj handed over his torn shirt to him and same was converted into pullanda and sealed with the seal of RD and same was seized vide memo Ex.PW-1/F. Accused Praveen and Ravi were arrested vide memo Ex.PW-1/B and Ex.PW-1/C and their personal search was conducted vide memos Ex.PW-1/E and Ex.PW-1/D. Disclosure statements Ex. PW-4/B and Ex. PW- 4/C of accused persons were recorded. Case property was deposited in Malkhana. He also recorded statement of witnesses. He also obtained result on MLC of Ct. C.M. Nagraj. On 08.01.2009, he arrested Inder (since deceased) vide memo Ex. PW-l/G and conducted his personal search vide memo Ex. PW- 1/H. On 08.04.2009, he also collected complaint under Section 195 Cr.P.C from T.I. Seema Puri Circle.

12. The witnesses were cross examined by the defence Counsel. The accused persons admitted, under Section 294, Cr.P.C., the registration of FIR, copy of which is Ex.A-1, the complaint under Section 195, Cr.P.C. made by the Traffic Inspector. The prosecution evidence was closed.

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016)

13. Both the accused were examined under Section 313, Cr.P.C. r/w Section 281, Cr. P.C. The accused denied the incriminating evidence. They would state that they were innocent. No such incident had taken place. They were standing on the spot. The police officials had taken them to the PS forcibly. They were also beaten by the police officials. Their signatures were taken on blank papers. They were allowed to leave the police station on the next day only after their family members had come there.

14. The accused persons did not lead any evidence in defence. The matter was therefore fixed for final arguments.

15. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused were present at the spot. The testimonies of the prosecution witnesses have proved beyond reasonable doubts that the accused persons, in furtherance of their common intention, had voluntarily caused hurt to the complainant to deter him from discharging his duty. The prosecution witnesses have also proved beyond reasonable doubts that the accused persons had used criminal force and they had assaulted public servant, to deter him from discharging his duties. Hence, all the ingredients Page 9 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) of the offences have been proved beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.

16. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. There is no direct/indirect/ circumstantial evidence, or public witness to prove the alleged case. No action was taken against public persons who had denied to assist the investigation. There is no recovery of the alleged weapon. PW-1/complainant was examined in Court on 21.08.2015 in which he had stated that he did not remember the date or month of the incident. It creates doubts on his testimony. There are major contradictions in the examination in chief and cross examination of PW1. The MLCs do not bear signatures of the PW2 and hence they can not be admitted in evidence. PW4/IO has stated in his examination in chief that he had prepared site plan at the instance of PW1 which is Ex.PW4/A. However, there is no signature of PW-1 on the said document. Therefore, it is not admissible in Evidence U/s 68 of Evidence Act. There are contradictions in the testimonies of PW1 and PW4. PW1 has stated that the case property was sealed with Page 10 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) the seal of PD. However, PW4 has stated that seal of RD was used. PW-1 has stated in his examination that the IO recorded his statement at the spot. However, the PW-4 has stated in his cross examination that the statement of PW-1 was recorded in the LBS hospital. Further, there is nothing on record to show that the vehicle No.DL1LV 2071 belonged to the accused persons. The PW1 has stated in his cross examination that the position of vehicle was same til arrival of the police. However, the PW-4 has stated in his cross examination that the vehicle was not present there. PW-4 has stated in his cross examination that he was present on the spot from 7.55 PM to 8.45 PM. However, the PW- 1 was medically examined at 8.30 PM. The maxim 'falsus in uno falsus in omnibus'is applicable in this case. Further, DD No. 34A was not exhibited in evidence. The incident had taken place due to the beating of the complainant by street hawkers of the area when he was demanding money under the pretext of illegally occupying public way on the road. PW3 has shown that a false case was prepared by the police officials to settle some personal score. The complainant is an interested witness. His testimony is not trustworthy. It has been proved by PW3 that the complainant Page 11 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) has deposed falsely on oath. Hence, it is prayed, the accused persons may be acquitted.

17. I have heard the rival submissions and carefully perused the material available on record.

18. 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.

19. Section 195 Cr.P.C bars cognizance of an offence punishable, inter alia, under Section 186 IPC except on a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. No sanction is required to prosecute the accused persons for offence punishable under Section 332 and Section 353, IPC.

20. In the present case, it is proved that the complainant C.M. Nagrajan was a public servant being constable of Delhi Police at the relevant time. The complaint, to prosecute the accused persons, under Section 195 Cr.PC is available on record which is Ex.A-2. Therefore, there is no legal bar to proceed further in the present case to decide the liabilities of the accused persons for an offence punishable under Section 186, IPC.

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016)

21. In the present case, the accused have been charged for the offences punishable under Section 186/353/332/34, IPC. 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 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 Durgacharan Naik And Ors vs State Of Orissa,1966 AIR 1775:-

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) "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 body. It is well-established 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."

22. 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 Page 14 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) a public servant at the time of incident and that the accused had voluntarily caused hurt to such public servant and further that 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.

23. In the present case, It has been proved that the complainant was a public servant at the time of alleged incident. It is also admitted by the accused persons that they were present at the spot. In their examination under Section 313 Cr.P.C. they have so admitted. However, their defence is that they were not indulge in the acts as alleged by the prosecution and that they were falsely implicated.

24. The prosecution has examined PW-1, complainant C.M. Nagrajan and PW3 Anand Yadav as eye witnesses of the alleged incident. As per the prosecution story, PW3 was with the complainant victim at the time of the alleged incident and he had seen the incident. He is stated to be the helper on the crane used by traffic police to tow away the vehicles found parked in 'no parking zone'. The witness, however, has turned hostile during Page 15 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) his examination. He has not supported the case of the prosecution.

25. PW1, however, has completely supported the case of the prosecution. PW1 is the victim and the complainant. He has narrated the entire incident in his examination in chief. He has specifically stated that the accused persons had asked him not to tow away the vehicle which was found parked in 'no parking area'. He has also stated that when he again asked the helpers to tow the vehicle, the accused persons started beating him with fists and blows and that he was hit by them on his head by some iron rod.

26. The witness has been cross examined by the Defence Counsel. No material contradiction has come in his cross examination so as to doubt his testimony.

27. Ld. Defence Counsel has stated in written arguments that PW-1 was examined in Court on 21.08.2015 in which he had stated that he did not remember the date or month of the incident. It creates doubts on his testimony.

28. I have considered the submissions. Perusal of the record would show that the PW1 had first appeared for his examination on 21.08.2015 wherein he had made the said Page 16 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) statement. However, his examination was deferred as the witness was not feeling well. Once the witness was not feeling well, it was proper and reasonable to defer the examination as in such circumstances he would not be able to depose all the facts. In such circumstances it can not be said that the witness had made improvements on next date of hearing which makes his testimony unreliable.

29. Ld. Defence Counsel has further stated that PW4/IO has stated in his examination in chief that he had prepared site plan at the instance of PW1 which is Ex.PW4/A. However, there is no signature of PW-1 on the said document. Therefore, it is not admissible in Evidence U/s 68 of Evidence Act.

30. I have considered the submission. No doubt, the site plan does not bear signature of the complainant. However, it does not make the document inadmissible in evidence. The PW4 has proved the execution of the document by proving his signatures. In any case, no question regarding the said document was asked from the witness when it was relied upon by the witness in his examination in chief. Therefore, the document is duly proved and it is admissible in evidence.

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016)

31. Ld. Counsel has further stated that there are contradictions in the testimonies of PW1 and PW4. PW1 has stated that the case property was sealed with the seal of PD. However, PW4 has stated that seal of RD was used. PW-1 has stated in his examination that the IO recorded his statement at the spot. However, the PW-4 has stated in his cross examination that the statement of PW-1 was recorded in the LBS hospital. Further, there is nothing on record to show that the vehicle No.DL1LV 2071 belonged to the accused persons. The PW1 has stated in his cross examination that the position of vehicle was same till arrival of the police. However, the PW-4 has stated in his cross examination that the vehicle was not present there. PW- 4 has stated in his cross examination that he was present on the spot from 7.55 PM to 8.45 PM. However, the PW-1 was medically examined at 8.30 PM.

32. I have considered these submissions. The above mentioned contradictions are not material contradictions so as to disbelieve the testimony of the victim complainant. Some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contradictions can not make the evidence Page 18 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) unreliable. I get strength from the judgment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under :

"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be Page 19 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "

falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is Page 20 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) punished but also to see that guilty does not escape". (emphasis supplied)

33. In the present case, the abovementioned contradictions, as pointed out by the defence, are not major contradictions. They have come in the testimonies due to the lapse of time after the incident. The incident in question had happened on 04.07.2008. PW1 was examined on 13.01.2016 i.e., after a gap of more than seven years. Similarly PW 4 was examined on 19.11.2018 i.e., after a gap of more than 10 years. It is natural that during such a long period a witness might forget some minor details. However, their testimonies have remained without any major contradiction. There is no reason to doubt the testimony of the complainant who is also victim of the crime.

34. It has been further stated by Ld. Defence Counsel that there is no public witness to prove the alleged incident.

35. I have considered the submission. Section 134 of the Evidence Act provides that no particular number of witness shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence Page 21 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused persons. Being the victim of the crime, he would be most keen to ensure that the real culprits do not go scot free. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:

"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016)

36. In the present case also, there is no major contradiction noted in the testimony of the PW1. His testimony is cogent and convincing. There is no reason to doubt his testimony. The MLC of the complainant is on the record. Perusal of the MLC Ex.PW2/A would show that there was also a fresh 'CLW' (Contused Lacerated Wound), scalp deep, on the head of the complainant. It corroborate the testimony of the complainant that he was hit by a rod on his head. There appears no reason as to why the complainant would falsely implicate innocent persons while leaving the real culprits unpunished.

37. Ld. Defence Counsel has also stated that the MLCs do not bear signatures of the PW2 and hence they can't be admitted in evidence. However, this argument does not have any substance and it is contrary to the material on record. Perusal of the record would Show that the MLCs have been duly proved by PW2 Dr. Sumit Paria. PW2 has identified his signatures on the MLCs.

38. Ld. Defence Counsel has also stated that the alleged weapon was never recovered and therefore, the reasonable doubt has been raised on the case of the prosecution.

39. I have considered the submission. However, I hold that the fact that the iron rod used by the accused was never Page 23 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) recovered is not a reason to disbelieve the statement of the complainant. It is settled that recovery of the weapon in all cases is not required to prove the case of the prosecution. I get strength from the judgment of the Hon'ble Supreme Court of India in Anwarul Haq vs The State Of Uttar Pradesh Crl. Appeal no.625-626/2005, decided on 26 April, 2005.

40. It has also been stated by Ld. Defence Counsel that no action was taken against public persons who had denied to assist the IO in investigation. Further, DD No. 34A was not exhibited in evidence. Also, the vehicle did not belong to the accused persons. No documents of the said vehicle were seized by the IO. Hence, the case of the prosecution must not be believed.

41. I have considered the submission. However, I do not agree with this contention. The above mentioned issue of notice to the public persons is related to the investigation conducted by the IO. Similarly, non seizure of the documents of the vehicle is also related to the investigation conducted by the IO. A faulty investigation can not be basis of acquittal unless it is shown that it had caused prejudice to the accused. Hon'ble Supreme Court of India in C. Muniappan and Ors. vs State of Tamilnadu (2010) 9 SCC 567 has discussed the law in relation to the effect Page 24 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) of defects in investigation on the prosecution case. It has held as under:

" 44. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850; Paras Yadav v. State of Page 25 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors.

(CNR No.DLET02-001061-2009) (CC No. 11252/2016) Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh v.

Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051;

and Ram Bali v. State of U.P., AIR 2004 SC 2329).

42. In the present case also the fact that the IO did not join the public persons in the investigation or that he did not seize the documents of the vehicle can not be a ground of acquittal of the accused persons. Further, non-exhibition of the DD entry in the evidence is also not sufficient to acquit the accused person.

43. Lastly, it has been stated by Ld. Defence Counsel that the incident had taken place as the complainant was beaten by street hawkers of the area when he was demanding protection money from them under the pretext that they were illegally occupying public way on the road.

44. Now, this is the defence of the accused persons. Suggestions to that effect were also given to the witnesses PW1 and PW4. Both the witnesses have denied those suggestions.

45. The accused persons, during their examinations under Section 313 Cr.P.C., have stated that they had not committed any offence. They were taken to the PS where they were beaten. They Page 26 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) were allowed to go only when their family members had arrived in the PS.

46. The burden to prove their defence was on the accused persons. The accused, however, have not led any evidence to prove their defence. It is settled position of law that statements made during examination under Section 313 Cr. PC are not evidence. They have not been made on oath. They have not been tested on the touchstone of cross-examination. Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:

"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."

47. In the present case also, for the aforesaid reason, the statements made by the accused persons during their Page 27 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) examinations under Section 313 Cr.P.C., can't be considered evidence. Those statements have not been made on oath. No opportunity was given to the opposite party to check the veracity of those statements by way of cross-examination. Similarly the defence put by the Ld. Defence Counsel to the witnesses has also remained not proved.

48. On the other hand, there is statement of victim on record which has been made on oath. The law is settled that testimony of an eyewitness/victim should be believed unless there is specific reason on record to disbelieve him. In the present case I do not find any reason to believe otherwise.

49. In the light of the discussion herein above, I hold that it has been proved, beyond reasonable doubts, that accused Ravi and Praveen, in furtherance of their common intention, had voluntarily obstructed the complainant, a public servant, in the discharge of his public functions when he was trying to tow away a vehicle which was parked in 'no parking zone'. It also stands proved beyond reasonable doubts that the accused persons, in furtherance of their common intention, had voluntarily caused hurt to the complainant being a public servant in the execution of his duty as such public servant. Thus, the prosecution has proved Page 28 of 29 ACMM/EAST/KKD/DELHI/28.10.2020 FIR No. 221/2008, PS : New Ashok Nagar, State Vs. Praveen & Ors. (CNR No.DLET02-001061-2009) (CC No. 11252/2016) the ingredients of offence punishable under Section 186/34 and 332/34 IPC against both the accused beyond reasonable doubts. Hence, accused Ravi and Praveen are found guilty and they are accordingly convicted for the offences punishable under Section 186/34 and 332/34, IPC. As they have been convicted for major offence punishable under Section 332 IPC, there is no requirement of punishing them for minor offence punishable under Section 353, IPC.

50. Let the parties be heard on the quantum of sentence. Copy of the judgment be given free of cost to the convicts.

Pronounced in open Court through Video Conferencing on this 28th day of October 2020.

           DINESH             by DINESH
                              KUMAR
           KUMAR              Date: 2020.10.28
                              18:22:48 +05'30' (Dinesh Kumar)

Additional Chief Metropolitan Magistrate (East) Karkardooma Courts Complex, Delhi.