Delhi District Court
Court Of India In The Judgment Titled As ... vs . State Of on 25 April, 2018
IN THE COURT OF MS. VIDHI GUPTA ANAND, METROPOLITAN MAGISTRATE
(MAHILA COURT-3), SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
a Serial No. of the case : FIR no. 318/04 PS Seemapuri
[CR No.82052/16]
b Date of the commission of the : 27.07.2004
offence
c Name of the Complainant : Ct. Vinod Kumar, Delhi Police
d Name of Accused person and his : 1.Pradeep Yadav
parentage and residence S/o Dev Narain Yadav
R/o 144, DDA Flats, New Seemapuri,
Delhi.
[Proceedings abated against him vide
order dated 30.10.2017]
2.Praveen Kumar
S/o Harbir Singh
R/o H. No. O-60/A-5, Dilshad Garden,
Delhi.
e Offence complained of : 186/ 332/ 353 /34 IPC
f Plea of the Accused and his : Not guilty
examination (if any)
g Final Order : Convicted
h Order reserved on : 06.04.2018
i Order pronounced on : 25.04.2018
1. Vide this judgment, this case bearing FIR no.318/2004 u/s 186/ 332/ 353/ 34
IPC registered with PS Seemapuri shall be decided and disposed of.
2. Briefly stated the facts of the Prosecution case are that on 27.07.2004 while
being on duty near Suraksha Nursing Home, at around 10.25 a.m., Ct. Vinod
Kumar no.2533/DHC (hereinafter referred as the complainant) was not only abused
but also beaten up by accused Pradeep Yadav along with his friend Praveen
Kumar, whereby his police uniform got torn and hence, obstruction was caused to
the police officer while he was working in discharge of his official duties. Further, it
FIR no. 318/2004, PS Seemapuri 1 /22
is a case of the prosecution that when other two police officials namely Ct. Vinesh
Kumar no.520/NE and Ct. Vinod Kumar no.1337/NE came for the help of the
complainant, they were also pushed and a finger of the hand of Ct. Vinesh Kumar
was bitten by accused Pradeep Kumar.
In these circumstances, the legal proceedings were initiated in the present
matter not only for causing obstruction to and using criminal force upon the public
servant while discharging public functions but also causing hurt to him to deter him
from his duty.
3. Charge-sheet was filed in this matter on 21.04.2005 and vide order of even
date cognizance was taken in this matter and accused persons were summoned
before the court.
After admitting the Accused persons to bail and supply of copies to them u/s
207 Cr.P.C., charges were framed upon them on 29.10.2005 whereby both the
accused persons were charged with offences u/s 353/ 332/ 186/ 34 IPC. Charges
were duly read over and explained to the Accused persons to which they pleaded
not guilty and claimed trial. Thus, the matter was taken up for recording
Prosecution's evidence.
4. In order to establish its case, prosecution has examined 08 witnesses as
listed below:-
PW1 Retd. DHG, Ct. Vinod Kumar [complainant]
PW2 HC Vinesh Kumar
PW3 HC Neelam (Duty Officer)
PW4 Ct. Kare Lal
PW5 Dr. S. Kholi, CMO, GTB Hospital, Delhi
PW6 HC Vinod Kumar
PW6 Sh. Vinay Kant Mishra, ACP Security, Vinay
Marg, Delhi. (hereinafter referred to as PW6A)
PW7 IO / Retd. SI Mange Ram
FIR no. 318/2004, PS Seemapuri 2 /22
From the above listed witnesses, the three most important witnesses to this
case are the Complainant himself (PW1), Ct. Vinesh (PW2) and Ct. Vinod (PW6) as
they have given their first hand eye-witness account of the incident in question. A
brief of the Prosecution evidence has been given in the following paragraphs for an
easy reference.
4.1. The most crucial witness to this case is the Complainant DHG Ct. Vinod
who was examined as PW1. He testified that on 27.07.2004 at around 10:25 a.m.
while he was on duty near Suraksha Nursing Home, when he tried to apprehend
Accused Pradeep Yadav for his abuses, Accused Pradeep Yadav started beating
him and later both the Accused persons i.e. Pradeep Yadav and Praveen Kumar
had not only beaten him but also torn his uniform whereby he suffered injuries on
his chest and face. He further added that Accused Pradeep Yadav had even bitten
the finger of Ct. Vinesh when he tried to apprehend him and Accused Praveen
Kumar had threatened him. He exhibited his statement recorded by the IO as
Ex.PW1/A, site plan prepared by the IO at his pointing out as Ex.PW1/B, seizure
memo of the torn uniform as Ex.PW1/C, arrest and personal search memos of both
Accused persons as Ex.PW1/D to Ex.PW1/G. He added that both the Accused
persons were detained in the lock up after their medical examination while the case
property was deposited in the malkhana. He correctly identified both the Accused
persons present in the court and also the torn uniform which was shown to him and
exhibited as Ex.P1.
During his cross-examination, he denied the suggestion of Ld. Counsel for
the Accused that he used to collect money from the accused on daily basis from
auto-rickshaw stand and when accused did not give money, he was beaten up. He
also stated that Ct. Vinesh and Ct. Vinod came at the spot to rescue him from
FIR no. 318/2004, PS Seemapuri 3 /22
Accused Pradeep Yadav. He admitted that despite the fact that 10-15 persons had
gathered at the spot, statements of no public witness was recorded by the IO. He
denied the suggestion that all the police officials had colluded with each other to
extract money from the Accused and that Accused persons had been falsely
implicated in this case. He denied having any knowledge about any kalandara
prepared against the Accused persons.
4.2. The second most important witness to this case is Ct. Vinesh, who was
examined as PW2. He deposed that at about 10:30 a.m. while on patrolling duty he
saw that two public persons were quarreling and giving beatings to PW1. He
deposed that he immediately reached at the spot and saw Ct. Vinod (PW6) was
trying to save him. He further deposed that he saw that PW1 had injuries on his
face and chest and his uniform was torn. The most important aspect of his
testimony is that when he tried to save the Complainant and intervened and caught
hold of Accused Pradeep Yadav, the Accused bit his middle finger of left hand. He
correctly identified both the Accused persons in the court.
During his cross-examination, he also denied the suggestion of Ld. Counsel
for the Accused persons that it was the Accused persons who were beaten up by
the police officials for extracting illegal money or that the Accused persons also
sustained injuries. He also denied the suggestion of Ld. Counsel for the Accused
that neither he nor IO nor Ct. Vinod Kumar were in police uniform on the day of the
incident. He also stated that public persons had gathered at the spot but could not
remember as to whether any public persons were made to join investigation or not.
He also pleaded ignorance with respect to any kalandara proceedings initiated
against Accused persons.
4.3. PW3 HC Neelam was only a formal witness to the case. She deposed with
FIR no. 318/2004, PS Seemapuri 4 /22
respect to registration of FIR and exhibited two documents on record including
Ex.PW3/A i.e. copy of FIR registered on the basis of rukka presented to her by SI
Mange Ram through Ct. Kare Lal and Ex.PW3/B i.e. endorsement made by her on
the said rukka.
4.4. Ct. Kare Lal, posted at PS Seemapuri on 27.07.2004 was examined as
PW4. He deposed that on receipt of PCR call, he reached the spot alongwith IO SI
Mange Ram whereby the Accused as well as PW1, PW2 and PW6 were taken to
the hospital where rukka was prepared. He supported the testimony of PW3 by
stating that he had taken the rukka to the PS for registration of FIR and thereafter,
returned back to the spot and handed over copy of FIR as well original rukka to IO
SI Mange Ram. He also relied upon certain documents already exhibited on record
i.e. arrest and search memos of the Accused persons, seizure memo of the torn
uniform and the case property Ex.P1.
During his cross-examination, nothing significant was brought out apart from
the fact that the spot of the incident was a public spot and also that IO did not ask
public persons to join investigation in his presence.
4.5. Dr. S. Kohli, CMO, GTB Hospital, Delhi was examined as PW5. He
exhibited three MLCs prepared under his supervision belonging to DHG Ct. Vinod
(Ex.PW5/A), Ct. Vinesh Kumar (Ex.PW5/B) and Accused Pradeep Yadav
(Ex.PW5/C). He admitted that he did not have any personal knowledge of the case.
4.6. Another important witness to this case is PW6 HC Vinod Kumar who was
posted as a Constable in PS Seemapuri on 27.07.2004 and was on duty at
Corporation Bank, Dilshad Colony, Seemapuri. He deposed that at around 10:25
a.m. one/two passerby told him that a quarrel was going on at N.O. Pulia where he
immediately rushed and in the meantime PW2 also reached. He added that on
FIR no. 318/2004, PS Seemapuri 5 /22
reaching the spot, he saw that uniform of Ct. Vinod Kumar was torn and both the
Accused were fighting with him. He further stated that he alongwith Ct. Vinesh
somehow overpowered Accused persons. He also stated that Ct. Vinod Kumar had
sustained injuries on his face and chest while Ct. Vinesh had sustained injuries on
his finger. He also correctly identified both the Accused persons in the court.
During his cross-examination, he stated that Ct. Vinesh reached the spot 5-
10 minutes after him and prior to that he had intervened but the matter could not be
resolved. He stated that he left the spot after coming of the IO due to his duty hours
and no proceedings were conducted by the IO in his presence.
4.7. ACP Vinay Kant Mishra was also examined as PW6 (referred to as
PW6A for convenience). His testimony was only relevant to the effect that he gave
sanction for prosecution u/s 195 Cr.P.C. and he exhibited the complaint u/s 195
made to him as Ex.PW6/A. During his cross-examination, he admitted that he was
unaware of the details of the investigation of this case or its witnesses or any
kalandara prepared in relation to this case. He denied the suggestion that Accused
has been falsely implicated.
4.8. The last witness to be examined in this matter is the IO Retd. SI Mange
Ram examined as PW7. His testimony is also significant to this case as he
summed up the entire proceedings which culminated before him from the receiving
of complaint till filing of challan.
He deposed that on receiving the call vide DD NO.16A regarding quarrel
between Home Guard and TSR driver, he reached at the spot and met all the three
police officials present there whereby PW1 told him that Accused Pradeep Kumar
had abused him and tore his uniform and beat him with the help of the Accused
Praveen Kumar and it was PW2 and PW6 who had saved him. IO deposed that he
FIR no. 318/2004, PS Seemapuri 6 /22
not only found the uniform of PW1 to be torn but also that he had suffered injuries
and further that even Ct. Vinesh had injuries on his finger. IO further stated that he
took both the Accused as well as PW1 DHG Ct. Vinod and PW2 Ct. Vinesh to GTB
hospital and got them medically examined. He exhibited the rukka prepared by him
as Ex.PW7/A and added that the same had been handed over to Ct. Kare Lal for
getting the FIR registered. Even he reaffirmed certain documents already exhibited
on record viz. Arrest and personal search memos of Accused persons (Ex.PW1/D
to Ex.PW1/G) as well seizure memo of case property as Ex.PW1/C.He further
deposed that he requested the concerned In-charge of Home Guard to file a
complaint u/s 195 Cr.P.C. which is Ex.PW7/B. He correctly identified Accused
Praveen Kumar present in the court.
During his cross-examination, he admitted that he did not make any public
person as a witness in this matter despite the fact that several persons had
gathered at the spot. He denied the suggestion that certain TSR drivers did offer to
be witnesses in this case but he did not deliberatly add them as witnesses. He
further denied the suggestion of Ld. Counsel for the Accused that Complainant
used to collect illegal money from Auto TSR divers and upon their refusal to pay,
Complainant as well as Ct. Vinesh used to beat them. He further denied the
suggestion that he deliberatly did not add staff of Suraksha Nursing home as
witnesses as they knew about the illegal collection of money. He denied the
suggestion that the injuries suffered by the Complainant were self-inflicted or that
the Complainant had himself torn his uniform.
Ld. Counsel for the Accused put certified copy of a kalandara to PW7
whereby proceedings were initiated u/s 107/151 Cr.P.C. against the Accused
persons vide DD No. 13A on 28.07.2004 PS Seemapuri prepared by SI Mange
FIR no. 318/2004, PS Seemapuri 7 /22
Ram. PW7 IO SI Mange Ram admitted to preparation of the same but stated that
he did not remember its particulars. He denied the suggestion that the case against
Accused persons had come to an end with the kalandara proceedings itself and
present FIR had been falsely registered against them. He denied the suggestion
that no quarrel had taken place between Accused Praveen and the Complainant
and added that Accused Praveen was in drunken condition when he had been
taken into custody. However, he admitted that MLC of Accused Praveen has not
been filed on record by him. He denied the suggestion that the present case had
been registered in connivance with the Complainant against the Accused persons
for demand of money.
4.9. With the testimonies of above witnesses, Prosecution evidence was closed
on 08.03.2018.
However, it is pertinent to note that during recording of prosecution evidence,
which continued over a period of several years, accused Pradeep Yadav expired
and proceedings were abated with respect to him vide order dated 30.10.2017.
5. Resultantly, statement of the remaining Accused namely Praveen
Kumar u/s 313 Cr. PC was recorded on 21.03.2018. Accused Praveen Kumar
denied the allegations and evidence brought against him and stated that he has
been falsely implicated in this matter. He added that the complainant used to
demand bribe from the auto drivers, who were plying the auto rickshaw and parking
the same in N & O Block, Pulia Auto Stand and upon the refusal of the accused to
pay the same, he was implicated in this case. He also added that he was beaten
up by the complainant and accompanying police officials as a result of which he
had suffered grievous injuries and his medical examination was conducted in GTB
hospital but his MLC has not been filed on record.
FIR no. 318/2004, PS Seemapuri 8 /22
When questioned as to whether he wants to lead evidence in their defence,
he answered in negative. Therefore, the matter was taken up for final arguments.
6. Accordingly, Ld. APP for the State as well as Ld. Defence Counsel argued
the matter at length in support of their respective cases and Ld. Defence Counsel
also filed written arguments to support his case.
Submissions have been anxiously heard and record has been thoroughly
perused.
7. This is one peculiar case which throws light on the acts which are seldom
heard of and rarely thought to be executed. Contrary to most of the cases, the
victim herein is the very saviour of law and order in the society and the accused is a
common man. Thus, the seriousness of this matter as well as its impact on the
serving police officials as well as other public persons can not be undermined.
As already briefed above, here is a case where allegedly, not only police
officials had been beaten up by two public persons but also by tearing apart of the
police uniform, the dignity attached with it was scarred. In all, after the appreciation
of the facts and circumstances of this case, charges under three specific provisions
had been framed against both the Accused persons, as follows:
Section of IPC Title
invoked
186 Obstructing public servant in discharge of
public functions
332 Voluntarily causing hurt to deter public
servant from his duty.
353 Assault or criminal force to deter public
servant from discharge of his duty.
It is pertinent to note that Accused Pradeev Kumar Yadav has already
expired and the trial culminated towards its end only with respect to Accused
Praveen Kumar. Thus, the focus of this judgment shall be to determine the
FIR no. 318/2004, PS Seemapuri 9 /22
culpability of Accused Praveen Kumar, if any, with respect to the aforesaid charges.
8. Meanwhile, from the mere reading of the title of above provisions, it is
apparent that the mischief which they seek to cure is the deterrence and
obstruction caused to the public servant while he is on duty. Thus, the importance
of these offences can not be undermined and have to be carefully dealt with while
appreciating facts and circumstances of this case, more so, because of the
prevalent societal fabric where the concepts of tolerance and mutual co-existence
have almost become redundant. The fact that the complainant herein is himself a
police official makes the case even more sensitive to be dealt with as police is
considered to be the toughest limb of the State and expected to be strong enough
to protect others. When the protector is itself rendered vulnerable enough to be
unable to save itself, then not only the morale of the public at large but also the
morale of entire gamut of public servants is likely to be defeated. Thus, this court
shall now proceed on to decide as to whether the complainant police official was
actually wronged by the Accused or not?
9. Before proceeding on to the facts of this case, it is vital to go through the
relevant sections of law with which Accused Praveen has been charged. The same
have been reproduced below for a quick perusal.
a) Section 186: Obstructing public servant in discharge of public functions.
Whoever voluntarily obstructs any public servant in the
discharge of his public functions, shall be punished with
imprisonment of either description for a term which may extend
to three months, or with fine which may extend to five hundred
rupees, or with both.
As to what is the meaning of causing obstruction has not been defined
anywhere in the IPC, however, as per its definition given in Cambridge dictionary to
obstruct means
FIR no. 318/2004, PS Seemapuri 10 /22
to block a road, passage, entrance, etc. so that nothing can go
along it, or to prevent something from happening correctly by
putting difficulties in its way.
Thus, any voluntary act on the part of any person which prevents a public
servant from discharging public functions is punishable under this provision. In
comparison to the other two provisions invoked herein, this provision is
comparatively wider in its scope but lighter in punishment and hence, can be
considered to be a smaller subset of section 332/353 IPC. As per section 186, mere
obstruction to a public servant discharging public functions is punishable though it
may or may not involve any kind of physical contact with the victim and obstruction
may be caused by any extraneous factor. The focus of this provision is on
voluntariness of the act and causing of obstruction.
b) Section 332: Voluntarily causing hurt to deter public servant from his
duty.
Whoever voluntarily causes hurt to any person being a
public servant in the discharge of his duty as such public
servant, or with intent to prevent or deter that person or any
other public servant from discharging his duty as such public
servant, or in consequence of anything done or attempted to be
done by that person in the lawful discharge of his duty as such
public servant, shall be punished with imprisonment of either
description for a term which may extend to three years, or with
fine, or with both.
It is the gravest of offences with which the Accused has been charged
herewith. The catch words here are voluntarily causing hurt to a public servant in
order to deter him from discharge of his duties. As per section 319 IPC, Hurt has
been defined as:
Whoever causes bodily pain, disease or infirmity to any person
is said to cause hurt.
Further, voluntarily causing hurt has also been specifically defined in
FIR no. 318/2004, PS Seemapuri 11 /22
section 321 IPC as follows:
Whoever does any act with the intention of thereby causing
hurt to any person, or with the knowledge that he is likely
thereby to cause hurt to any person, and does thereby cause
hurt to any person, is said "voluntarily to cause hurt".
Thus, going a step ahead, section 332 punishes causing of hurt to the
public servant while he is on duty. However, yet again, the act must have been
done voluntarily with the intention to cause hurt. As to what is covered in the term
discharge of duties has not been specifically defined anywhere and the same shall
have to be seen on case to case basis.
c) Section 353: Assault or criminal force to deter public servant from
discharge of his duty.
Whoever assaults or uses 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, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.
This provision differs from section 332 only to the extent that the term
hurt is replaced by assault/criminal force. While assault has been defined in section
351 of the IPC, criminal force finds its definition in section 350 IPC. Both the said
definitions are reproduced below for an easy reference.
Criminal force.--Whoever intentionally uses force to any
person, without that person's consent, in order to the
committing of any offence, or intending by the use of such force
to cause, or knowing it to be likely that by the use of such force
he will cause injury, fear or annoyance to the person to whom
the force is used, is said to use criminal force to that other.
Assault.--Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault. Explanation.
--Mere words do not amount to an assault. But the words
which a person uses may give to his gestures or preparation
such a meaning as may make those gestures or preparations
amount to an assault.
FIR no. 318/2004, PS Seemapuri 12 /22
Thus, assault may be caused even without touching the victim and mere
gesture to hit or preparation to use criminal force which causes apprehension in the
mind of the victim is also punishable under this section. As is apparent from the
definition given above, in order to attract offence of use of criminal force upon a
public servant it is required that the force must have been used intentionally without
that person's consent. It may be argued that the contents of section 186 and 353
are overlapping to an extent as both involve deterrence to public servants even
without use of force, however, the same has been clarified by the Hon'ble Apex
Court of India in the judgment titled as Durgacharan Naik And Ors. vs. State Of
Orissa [1966 SCR (3) 636] wherein it was held as follows:
It is true that most of the allegations in this case upon which the
charge under s. 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 s. 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 s. 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
Contempts of the lawful authority of public servants, while s.
353 occurs in Ch. XVI regarding the offences affecting the
human body.
10. Hence, all the three offences are distinct from each other, though certain
amount of overlapping can not be denied. In all the provisions discussed above, the
commmonality is that the victim can only be a public servant. Further, it is
indispensable that he must be acting in discharge of a public function or a duty
under law. Apart from this, the remaining factors are variable to the effect that
whether he was obstructed or hurt or subjected to assault / criminal force with a
purpose of deterrence. Keeping in view the above said factors in mind, this court
FIR no. 318/2004, PS Seemapuri 13 /22
shall now proceed on to decide upon the guilt of Accused Praveen Kumar, if any,
with respect to commission of the offences with which he had been charged. For
that purpose, the points of consideration before the court are as follows:
a) Whether the complainant and other victims namely
Ct.Vinod (No.2533 DHG), Ct. Vinesh and Ct. Vinod (No.1337
NE) were public servants at the time of commission of the
offences in question or not?
b) Whether the said persons were acting in discharge of
public functions or duty assigned to them or not?
c) Whether any obstruction or deterrence was caused to
the Complainant and other victims or not from the acts of
the Accused?
Each of the above raised questions shall be answered in the following
paragraphs after scrutiny of the evidence brought by the Prosecution. It is yet again
reiterated that Accused Praveen Kumar, despite opportunity, has preferred not to
lead any evidence in his defence and it is only upon the basis of the Prosecution
evidence that the truthfullness of the case of the Complainant shall be determined.
11. Moving on to the facts of this case, the first and foremost issue be
addressed is whether the victims were public servants at the time of commission of
offences in question or not? It has already been stated in the forgoing paragraphs
that the victims of the alleged acts of the Accused were officials of Delhi police.
During the entire evidence led by the Prosecution, not even once has it been
questioned by defence that the victims i.e. Ct.Vinod (No.2533 DHG), Ct. Vinesh
and Ct. Vinod (No.1337 NE) were not public servants. Rather, the altercation with
the police personnels has been admitted categorically by the Accused in his
statement u/s 313 Cr.P.C. Thus, on the part of the Accused, there is no denial that
the complainant was a police official
11.1. Going by the book, section 21 of the IPC defines as to who is a public
servant and it certainly covers police officials within its ambit. Relevant portion of
FIR no. 318/2004, PS Seemapuri 14 /22
section 21 has been reproduced below:
The words "public servant" denote a person falling under any of
the descriptions hereinafter following; namely:
......................
(Eighth)-- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
................
[(Twelfth)--Every person--(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
Thus, in common parlance, every person, in the service or pay of the Government is a public servant, which undoubtedly holds true for officers and staff of Delhi Police as well. To be more specific, every officer of the Government whose duty it is to prevent commission of offences is also squarely covered under the definition of public servant, which yet again brings the victims of offences in question within its scope.
11.2. Further, from the testimony of PW6A i.e. ACP Vinay Kant Mishra and the complaint u/s 195 Cr.P.C. Ex.PW6/A exhibited by him on record, it is manifest that before initiation of Prosecution case against Accused persons, due permission was taken by the IO u/s 195 Cr.P.C. and the sanction for the same was given by the due authority after perusing the case file and getting satisfied with respect to the permission. Ex.PW6/A specifically mentions the date of the incident to be 27.07.2004 and also that The above said Const. Vinod Kumar No.2533/DHG is a public servant was performing (sic) his official duty on the above said date and time.
11.3. Thus, as far the first issue is concerned, the same stands answered in favour of the Prosecution inasmuch as it stands proved that the Complainant as well as Ct.Vinesh and Ct. Vinod were public servants on the date of the commission of the alleged offences.
FIR no. 318/2004, PS Seemapuri 15 /22
12. Moving ahead with the second issue i.e. Whether the said persons were acting in discharge of public functions or duty assigned to them or not? All the three police officials i.e. Ct.Vinod (No.2533 DHG) [PW1], Ct. Vinesh [PW2] and Ct. Vinod (No.1337 NE) [PW6] have stepped into the witness box and deposed on oath with respect to their duties on the day of the incident.
12.1. PW1 has stated that on the day of the incident i.e. 27.07.2004, he was posted at DHG, PS Seemapuri and was on duty from 8:00 a.m. to 4:00 p.m. at N&O Pocket, Dilshad Garden, near Suraksha Nursing home at bridge (pulia) and at around 10:25 a.m. the entire incident started to occur.
PW2 has stated that on 27.07.2004 he was posted as Constable in PS Seemapuri and was on duty in Dilshad Colony as beat officer whereby while patrolling he saw that the Accused persons were quarrelling with and beating PW1.
PW6 has stated that on 27.07.2004 he was also posted as Constable in PS Seemapuri and he was on duty from 10:00 a.m. to 5 p.m. at Corporation Bank, Dilshad Colony, Seemapuri, Delhi when at about 10:25 a.m. one/two passerby told him that a quarrel was going on at N&O Pulia and therefore, he immediately rushed there.
12.2. The preceding paragraph gives an account of where exactly the victims had been at the time when the incident in question occurred. Certainly, there is no doubt that at the time when the incident occurred i.e. at 10:25 a.m. all the three police officials were on duty at their respective places and it is only upon getting alerted about the attack on the Complainant did the remaining two police officials rush from their spot to the spot of the incident. Undoubtedly, DHG Ct. Vinod being present at the spot of the incident was discharging his duty of maintaining public peace whereby he made an attempt to stop deceased Accused Pradeep Yadav FIR no. 318/2004, PS Seemapuri 16 /22 from abusing at a public place. At the same time, the fact of rushing of PW2 at the spot of the incident would also be covered within the scope of his official duties as being a beat Constable of the area he was expected to rush to the spot in his area of posting where any law and order situation had gone rouge. As far as PW6 is concerned, upon getting information regarding the incident, he also instinctively rushed to the spot of the incident and thus, discharging his duty of maintaining law and order.
12.3. It is without any doubt that all of the three said police officials were posted as Constables in PS Seemapuri, though they were assigned different duties. Further, it has nowhere been disputed by Accused Praveen Kumar that all the three police officials were on duty at the time of the incident. Another parameter which may be taken into account while considering whether PW2 and PW6 were on duty or not is whether if they had rushed for the help of a common man would their discharging of duty still be under question? The answer is certainly in negative. 12.4. To understand the meaning of the term discharging of duties better, a judgment from the Hon'ble High Court of Allahabad titled as Queen-Empress vs. Dalip And Ors [(1896) ILR 18 All 246] is vital to be perused wherein it has been held that:
In our opinion the words "in discharge of his duty" can have only one meaning, and that is that the officer has a duty to discharge and is discharging it at the particular time. They cannot mean that the officer is acting under colour of his office. He must be acting at the time as a Police officer and in the particular matter discharging a duty incumbent upon him as a Police officer. A Police officer may of course occasionally exceed what his duty requires of him when in the discharge of his duty, or may in the course of the discharge of his duty be guilty of an act unlawful in itself and not required to be done by the Police officer for the purpose of performing the duty which he is then engaged upon. It is to cover acts which the Police officer may have to do when in the discharge of his duty that in our opinion the words "lawful discharge" are introduced in the concluding portion of Section 332.
FIR no. 318/2004, PS Seemapuri 17 /22 From the above extract, it comes forth that not only in official discharge of the duties but also acts done in lawful discharge of duties shall be covered within the scope of section 332/353 IPC. In the case at hand as well, from the coherent testimonies of the PW1, PW2 and PW6 as well as the interpretation of law discussed above, there remains no scope of doubt that even the second issue stands answered in favour of the Prosecution inasmuch as all the said three police officials were acting in discharge of their official duties at the time of the incident in question.
13. The last issue which needs to be answered is Whether any obstruction or deterrence was caused to the Complainant and other victims or not from the acts of the Accused? For answering this question, the testimonies of PW1, PW2 and PW6 shall be most important as it is with respect to them that the present complaint has been initiated.
13.1. Starting with PW1, he has deposed that at around 10:25 a.m., when he was on duty, one person namely Pradeep Yadav (Deceased Accused) came in drunk condition and started abusing and when PW1 objected to the same, he started abusing PW1 itself. Further, PW1 has deposed that when he tried to apprehend said Pradeep Yadav, he called his friend who was standing nearby at TSR stand i.e. Accused Praveen Kumar. It is stated by PW1 that Accused Praveen Kumar also started beating him and also threatened him. Thereafter, it is stated by PW1 that Ct. Vinod and Ct. Vinesh came to save him but Accused scuffled with them also and Accused Pradeep Yadav even bit the finger of Ct. Vinesh. PW1 has categorically stated that he sustained injuries on his chest and face and both the Accused persons had torn his uniform and obstructed him while he was performing his duties.
FIR no. 318/2004, PS Seemapuri 18 /22 13.2. Adding immense support to his case are the testimonies of PW2 and PW6 who have also deposed that they themselves saw both the Accused persons beating the Complainant and they had to intervene and overpower them in order to save the Complainant. Ct. Vinesh is in fact a victim to the injuries himself as he suffered a finger-bite from Accused Pradeep Yadav while trying to apprehend him. Not only the timings given by the witnesses but the series of events narrated by them are in absolute tandem with each other, thus leaving no scope of any kind of discrepancy in the Prosecution case.
13.3. Further, the MLCs of Ct. Vinod Kumar and Ct. Vinesh are self- explanatory with respect to the injuries suffered by them. Ex.PW5/A i.e. the MLC of the Complainant DHG Ct. Vinod mentions multiple abrasions on the left side of his chest categorizing them as simple injuries. Further, Ex. PW5/B i.e. the MLC of Ct. Vinesh mentions laceration 0.2 x 0.2 cm on middle finger of left hand and it has also been mentioned that possibility of dental wound cannot be ruled out. In the MLC of Accused Pradeep Yadav Ex.PW5/C, it is specifically mentioned that smell of alcohol is present and mild swelling present over upper lip. The MLC of Accused Praveen Kumar is not record.
From the above extract of the MLCs, the injuries suffered by the Complainant and Ct. Vinesh on 27.07.2004 are manifest and as the MLCs have not been disputed by the Accused, they stand duly proved. It is argued by the Ld. Defence counsel that the injuries suffered by the victims are self-inflicted, but no evidence to support this averment has been led on behalf of the Accused. It is questionable that even if a person would inflict injuries upon himself, why would he bite his finger or give abrasions on chest and rather not give blunt injuries on face or neck? Certainly, the defence version does not find any logic, more so, because FIR no. 318/2004, PS Seemapuri 19 /22 no attempt has been made by defence to prove the same.
13.4. Another aspect which goes against the Accused is the torn uniform of the Complainant i.e. Ex.P1. Even on this aspect, it has been argued by Ld. Defence counsel that the same was torn by the Complainant himself, meaning thereby that as such tearing of the uniform on the day of the incident and in presence of Accused has not been disputed by the Accused. If he alleges that it was someone else who had torn it, be it the Complainant himself, he should have proved the same by stepping into the witness box which he did not do. 13.5. Another aspect which goes against the Accused is the absence of other eye-witnesses to this case. It is the admitted case of the Prosecution that no public person has been made as a witness to this case. Ld. Counsel for the Accused has suggested to the IO that despite the fact that other TSR drivers were willing to join as witnesses, they were not made to join investigation. Further, it has also been suggested that the staff of Suraksha Nursing Home was also not made witnesses as they knew about the illegal gratification received by the Complainant and Ct. Vinesh from them. Rather than going against the case of the Prosecution, this suggestion goes against the case of the Accused. If the Accused alleges that other persons were willing to be a witness in this case but IO deliberately did not add them in his investigation, the Accused had all the opportunity to bring them in the dock for deposing in his favour while leading defence evidence. Accused could not only have examined other TSR/Auto drivers but also staff of Suraksha Nursing home to depose regarding the true state of affairs as put forward by him but for the reasons best known to the Accused, he preferred not to lead any evidence in his defence.
13.6. As far as the aspect of kalandara is concerned, the same also does not FIR no. 318/2004, PS Seemapuri 20 /22 come to the rescue of the Accused. It has been put forward by the Ld. Defence Counsel that the proceedings against the accused persons had ended with the kalandara Ex. PW7/DA which was prepared on 28.07.2004. However, on bare reading of the contents of Kalandara Ex. PW7/DA, it comes forth that the Accused persons had been arrested in FIR no.318/04 PS Seemapuri on 27.07.2004 and upon appearance of their sureties they were released on bail but as soon as they reached outside the gate of the PS, they started threatening that they would accumulate crowd and then do gherao and stop traffic and when despite being pacified they did not stop, then anticipating breach of pubic peace the kalandara proceedings had to be initiated. The entire content of the kalandara mentions nothing about the incident of 27.07.2004 and is entirely based upon a different incident which occurred on the next day. Further, the FIR could not have been registered falsely after the kalandara as it had already been registered on 27.07.2004 while the kalandara had been prepared on 28.07.2004 on account of after effect of releasing the Accused persons on bail. Thus, no merits, whatsoever, are found in the arguments of Ld. Counsel for the Accused that the proceedings against him ended with the Kalandara itself or that the FIR was falsely registered thereafter.
13.7. From the above discussion, there remains no scope of doubt that even the third issue stands answered in favour of the Prosecution as it is clear that Complainant and Ct. Vinesh had been hurt by the act of Accused persons, hence, deterring them from lawful discharge of their duties.
14. As already stated above, in the case at hand, Accused Pradeep Yadav, from whom the entire incident germinated, has already expired during trial. With respect to Accused Praveen Kumar, it has come in evidence that he joined Accused FIR no. 318/2004, PS Seemapuri 21 /22 Pradeep Yadav while he was beating the Complainant DHG Ct. Vinod and thereafter, both the Accused had to be overpowered by PW2 and PW6 to save the Complainant from their clutches. With respect to Accused Praveen mainly the allegation of beating the Complainant has come while he was trying to apprehend Accused Pradeep Yadav, which has also been supported by testimonies of other PWs who were also the eye-witnesses to the incident. Further, by not leading evidence in his defence, Accused Praveen Kumar has not been able to bring even a slight probability of his defence of illegal gratification imputed upon the Complainant and Ct. Vinesh. Thus, from the overall reading of the evidence led by the Prosecution, this court has no hesitation in holding that the case of the Prosecution stands proved beyond all reasonable doubts as it has not only been proved that Accused Praveen Kumar was present at the spot at the time of incident in question but also that he used criminal force upon the Complainant when he was acting in discharge of his duties.
15. In the light of above discussion, Accused Praveen Kumar is hereby held guilty and convicted for the offences u/s 186/353/332 IPC. This being the case, he shall be heard separately on point of sentence. One copy of this judgment be given free of cost to the accused Parveen Kumar. One digitally signed copy of the judgment be also uploaded on the official website. ANNOUNCED IN THE OPEN COURT ON 25.04.2018 (Vidhi Gupta Anand) MM (Mahila Court-03) SHD/KKD Courts/Delhi [This judgment contains 22 signed pages] VIDHI Digitally signed by VIDHI GUPTA GUPTA Date: 2018.04.25 17:11:28 +0530 FIR no. 318/2004, PS Seemapuri 22 /22