Delhi District Court
State vs . Om Prakash & Ors. on 15 July, 2011
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI
FIR No. 440/1997
ID R0767542003
U/s. 186/353/332/34 IPC
PS NDRS
State vs. Om Prakash & Ors.
JUDGMENT
1. Sr. No of case 1500/G
2. Date of commission of offence 29.6.1997
3. Name of complainant Ct. Ashok Kumar
4. Name of accused (i) Om Prakash
s/o. Late Sh. Sitaram
r/o. H NO. Qrt. No. 31
Thompson Road, Delhi.
(ii) Zamil Ahmed@ Kalu
s/o. Sh. Sagir Ahmad
r/o. Orani Bhakula
PS Bhawanipur
Distt Samastipur Bihar.
5. Offence complained of u/s. 186/353/332/34 IPC
6. Plea of accused Pleaded not guilty
7. Final order Convicted
8. Date of such order 15.7.11
BRIEF REASONS FOR SUCH DECISION:
1. The prosecution was set into motion in the present case 440/1997NDRS page1/ on the basis of statement of the complainant i.e. Ct. Ashok Kumar dated 30.6.1997. In his statement complainant had alleged that on 29.6.97 he was on duty at Ajmere Gate side, prepaid booth from 8.00 PM to 8.00 AM. It is further alleged that at about 11.05 PM one passenger came to him with a slip stating that he had to go to Rohini and there is no taxi at the Taxi Stand. It is further alleged that he went to the Taxi Stand and noticed that 23 taxi were standing near Senekwar Tea Stall, Middleover Bridge. It is further alleged that he went there and asked the taxi drivers to come to the prepaid Taxi Stand but they refused. It is further alleged that when he requested again to them to come to the prepaid booth, they started abusing him. It is further alleged that Om Prakash caught hold of him by his collar, pushed him down and started beating him. It is further alleged that when the GRP personnel came to his rescue, one of those driver took out a key chain in which knife was attached and tried to give him(complainant) knife blow but he saved himself from the knife blow. It is further alleged that thereafter 23 RPSF personnel who were passing through there gave danda blow to Om Prakash and he was rescued.
440/1997NDRS page2/ It is further alleged that in the aforesaid scuffle his uniform was torn. It is further alleged by the complainant that he can identify the person who had tried to give him knife blow if produced before him. Complainant had further alleged that the accused persons had obstructed him in discharge of his official duties and had also caused injuries to him. During the course of investigation accused Zamil Ahmad was apprehended and was arrayed as an accused in the present case.
2. After completion of investigation, chargesheet was filed. Accused persons were summoned and provisions of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused persons in Hindi language and a charge for offence punishable u/s. 186/353/332/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined seven witnesses in support of its case.(PW ASI Gurcharan Singh was wrongly numbered as PW8 on 17.3.11).
440/1997NDRS page3/
5. PW1 is Ct. Ashok Kumar i.e. the complainant/ victim; PW2 is HC Dharam Singh; PW3 is HC Balvinder Singh i.e. eye witness; PW4 is Insp. Madan Gopal; PW5 is ASI Vinod Kumar i.e. the duty officer; PW6 is ASI Gurcharan Singh and PW7 is Sh. Puranmal i.e. record clerk from Lady Hardinge Hospital.
6. Thereafter, prosecution evidence was closed on 17.3.11 and thereafter an application u/s. 311 cr.p.c. was moved by Ld. APP for the State and the same allowed and thereafter prosecution evidence was closed on 4.5.11 and statement of accused persons was also recorded wherein accused persons have denied the evidence that has come on record against them. They choose not to lead evidence in their defence.
7. I have heard Ld APP for State as well as Ld counsel for accused persons and have also carefully gone through the file.
8. PW1 Ct. Ashok Kumar testified that on 29.6.1997 he was posted at Kamla Market Circle, North Delhi Railway Station and his duty was at the prepaid booth from 8.00 PM to 8.00 AM. He further stated that at about 11.05 PM one passenger came to him alongwith a receipt of prepaid booth who had to go to Rohini. He 440/1997NDRS page4/ further stated that there was no taxi at the Taxi Stand at that time and he found 23 taxis parked near the snacks bar. He further stated that he asked those drivers to go to the prepaid booth alongwith taxis but they refused to go and started abusing him. He further stated that one of the driver namely Om Prakash caught hold of him by collar and threw him on the ground and another drivers attempted to give him knife blow which was in the key chain. He further stated that in the meantime Ct. Balvinder from GRP came there and tried to save him from the accused persons but he could not save him. He further stated that thereafter 23 RPSF personnels also came there and gave danda blow to accused Om Prakash and saved him. He further stated that accused Om Prakash had torn his uniform and caused him injury. He further stated that the second driver ran away from the spot but could identify him. He further stated that accused Om Prakash was apprehended at the spot and he made his complaint which is Ex. PW1/A. He further stated that accused Zamil Ahmad @ Kalu who had attempted to give him knife blow was apprehended on 2.9.97 at his instance and the key chain having 4 key and one small knife 440/1997NDRS page5/ was recovered from him and the same was taken into possession vide seizure memo which is Ex. PW1/B. He further stated that one Ambassador car bearing No. PB 08E 9070 was also seized vide seizure memo which is Ex. PW1/C. He further stated that his torn uniform (shirt) was taken into possession vide memo which is Ex. PW1/D on 30.6.97. He further stated that IO inspected the spot and prepared site plan at his instance. He identified the case property i.e. torn shirt and a key chain having four keys and a knife. He further stated that the complaint u/s. 195 cr.p.c. is Ex. PW1/E which bears the signatures of Insp. Madan Gopal.
9. PW2 HC Dharam Singh testified that on 29.6.1997 he was posted as MHCr in Traffic Circle, Kamla Market in the office of Traffic Inspector. He further stated that on that day Ct. Ashok Kumar was on duty at prepaid booth from 8.00 PM to 8.00 AM at New Delhi Railway Station. He further stated that on that day the departure report of Ct. Ashok Kumar was made in DD No. 10 in the roznaamcha register.
10. PW3 HC Balvinder Singh testified that on 30.6.1997 he was posted at police station New Delhi Railway Station and was on 440/1997NDRS page6/ patrolling duty from 9.00 PM to 9.00 AM. He further stated that at about 11.05 PM he saw accused persons namely Om Prakash and Zamil Ahmed beating Traffic Ct. Ashok Kumar and he went to rescue the complainant from the clutches of the accused persons and in the meantime 34 RPF officials also came there and he alongwith the RPF officials rescued the complainant. He further stated that during the occurrence the collar of the shirt of the complainant was torn and the shirt was taken into possession vide memo which is Ex. PW1/D. He further stated that car bearing registration No. BB 08E 9070 was also seized vide memo which is Ex. PW1/C. The further stated that accused Om Prakash was apprehended at the spot and was produced by them before the IO. He identified the torn shirt which is Ex. P1. He further stated that the personal search of accused Om Prakash is Ex. PW3/A.
11. In his cross examination, PW3 stated that the name of the IO was ASI Dharam Singh. He further stated that about 1015 public persons had collected at the spot. He further stated that the statement of public persons were not recorded who had collected there. He further stated that public persons were asked to become 440/1997NDRS page7/ witness on 30.6.97 but none agreed. He further stated that no notice was given to those persons who refused to join the investigation. He further stated that the distance between the spot and the PS was about ½ KM. He further stated that his statement was recorded at about 12.30 AM and site plan and other documents were prepared before his statement was recorded. He further stated that Ct. Ashok had sustained knife injury but no knife was recovered from the spot. He further stated that he cannot say whether the said knife was recovered from the accused persons or not. He further stated that accused Om Prakash had also sustained injuries at the spot. He further stated that he cannot say who had caused injury to accused Om Prakash. He denied the suggestion that Ct. Ashok was not on duty at prepaid booth and accused persons were falsely implicated. He further denied the suggestion that any quarrel, if taken place, was not in his presence. He further denied the suggestion that no proceedings were done in his presence.
12. PW4 Insp. Madan Gopal testified that in the year 1997 he was posted as Traffic Inspector, Kamla Market. He proved the 440/1997NDRS page8/ complaint u/s. 195 cr.p.c. which is Ex. PW1/E bearing his signatures at point A.
13. PW5 ASI Vinod Kumar testified that on 30.6.1997 he was posted at duty officer at police station New Delhi Railway Station and he proved the registration of the FIR which is Ex. PW5/A.
14. PW6 ASI Gurucharan Singh testified that on 2.9.1997 he was posted at police station New Delhi Railway Station and on that day he had joined the investigation of the case with the IO. He further stated that at about 6.45 PM he alongwith IO and complainant reached at TSR stand, New Delhi Railway Station and apprehended accused Zamil Ahmed @ Kalu at the instance of complainant. He further stated that on the formal search of accused one key ring having four keys and one small knife was recovered which was seized vide seizure memo which is Ex. PW1/B. He further stated that after interrogation accused was arrested and his personal search was conducted vide memo which is Ex. PW6/A.
15. PW7 Sh. Puranmal deposed that he is working in the 440/1997NDRS page9/ Lady Hardinge Hospital as record clerk since the year 1995 in the medical record department. He further stated that Dr. Sunita Singh who had prepared the Casualty Report No. 14091/97 pertaining to accused Om Prakash had since left the job of hospital and her present address is not known. He identified the handwriting and signatures of Dr. Sunita Singh on the report which is Ex. PW7/A.
16. Accused persons in their statement u/s. 313 cr.p.c. recorded in court denied the evidence that has come on record against them. However, they choose not to lead evidence in their defence.
17. In the present case, charge for offences punishable u/s. 186/332/353/34 IPC was framed against the accused persons.
18. Section 186 IPC lays down that 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 3 months or with fine which may extend to Rs. 500/ or with both. At this stage, a reference to section 195 cr.p.c. is also essential as section 195 cr.p.c. laid down that no court shall take cognizance of any offence 440/1997NDRS page10/ punishable u/s. 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, prosecution has produced and examined PW4 i.e. Insp. Madan Gopal to prove the complaint u/s. 195 cr.p.c. The complaint u/s. 195 cr.p.c. is Ex. PW1/E. Perusal of Ex. PW1/E clearly shows that the said complaint was not made to the court and infact the subject of Ex. PW1/E reads permission u/s. 195 cr.p.c. Even in the last paragraph of Ex. PW1/E it is mentioned that permission u/s. 195 cr.p.c. is granted to take the cognizance of the case by the court. From the contents of Ex. PW1/E it appears that Insp. Madan Gopal was under a mistaken belief that the court needs a permission from him for taking cognizance of the offences in question. The alleged permission u/s. 195 cr.p.c. is infact no complaint u/s. 195 cr.p.c. as envisaged by the said legal provision. Ex. PW1/E do not fall within four corners of a complaint as postulated by section 195 cr.p.c. Ex. PW1/E is not a complaint u/s. 195 cr.p.c. in the eyes of law. As there is no complaint u/s. 195 cr.p.c. the cognizance of the offence punishable u/s. 186 IPC 440/1997NDRS page11/ cannot be taken and the accused persons cannot be convicted for the said offence in the absence of valid cognizance.
19. Section 332 IPC postulates that 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 3 years or with fine or with both.
20. Section 353 IPC also postulates that 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 or either description for a term which may extend to 2 years or with fine or 440/1997NDRS page12/ with both.
21. In order to prove the essential ingredients of the offences punishable u/s. 332 IPC and 353 IPC and in order to bring home the guilt of the accused persons, prosecution has produced and examined seven witnesses. PW1 is the complainant/ victim. PW2 had merely proved that PW1 i.e. the complainant was on duty at the relevant date and time. PW3 is also a very important witness as he had seen the commission of the said offences by the accused persons and had even saved PW1 from the clutches of the accused persons. Testimony of PW4 and PW5 is of formal nature. PW6 had participated/ joined the investigation of of the present case with the IO and he had proved various documents prepared during the investigation of the present case. PW7 i.e. record clerk from the concerned hospital had identified the writing and signatures of Dr. Sunita Singh on the medical documents. IO of the case could not be examined in the present case as he had already expired before his testimony could be recorded in court. Thus, in nutshell the testimony of PW1 and PW3 is most important from the prosecution point of view as the testimony of other witnesses is 440/1997NDRS page13/ pertaining to formal aspects of the present case.
22. PW1 and PW3 had supported the prosecution case in totality. PW1 in his examination in chief narrated the whole incident in detail. PW1 correctly identified both the accused persons as well as the case property in court. PW1 also identified his torn uniform in court. PW1 in his testimony recorded in court stated in detail the role played by accused persons. PW1 also mentioned about the presence of PW3 in his testimony recorded in court. It is pertinent to mention that PW1 was not cross examined by or on behalf of accused persons and the testimony of PW1 has remained unchallenged and unrebutted. The testimony of PW1 is consistent and there is no reason to disbelieve the same. The testimony of PW1 recorded in court is almost identical to his statement recorded by the IO on 30.6.1997. The testimony of PW1 inspires confidence.
23. PW3 had also supported the version of PW1 in court and PW3 had also narrated in detail about the incident in question. PW3 also stated that PW1 i.e. the complainant was being beaten up by the accused persons and one of the accused persons had also 440/1997NDRS page14/ tried to inflict injury from a knife upon the complainant. PW3 had also correctly identified the accused persons as well as the case property. PW3 was cross examined on behalf of accused persons. However, PW3 had passed the test of cross examination with flying colours and in his cross examination Ld defence counsel failed to elicit anything from his mouth which makes his testimony unreliable or shaky one. PW3 had fully corroborated the testimony of PW1.
24. Accused persons in their statement recorded in court u/s. 313 cr.p.c. merely denied the prosecution case and stated that they were falsely implicated. In their statement u/s. 313 cr.p.c. no reason was given by the accused persons due to which they were falsely implicated by the police.
25. From the entire evidence available on record and in view of the discussion made hereinabove, I am of the considered view that the prosecution has failed to prove the charge of offence u/s. 186 IPC against the accused persons. However, prosecution has successfully proved beyond reasonable doubt all the essential ingredients of the offences punishable u/s. 332 and 353 IPC.
440/1997NDRS page15/
26. Hence, both accused persons are hereby acquitted in the present case for offence punishable u/s. 186 IPC and both accused persons are hereby convicted for offences punishable u/s. 332 and 353 IPC.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 15th of July, 2011 MMCentral04:DELHI.
440/1997NDRS page16/
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (CENTRAL04): DELHI FIR No. 440/1997 ID R0767542003 U/s. 353/332/34 IPC PS NDRS State vs. Om Prakash & Anr.
15.7.11 ORDER ON POINT OF SENTENCE Present: Ld APP for state.
Convict Zamil Ahmad is produced from JC.
Convict Om Prakash is present on bail.
Ld counsel for convicts is also present.
I have heard Ld APP for state as well as Ld counsel for convicts on the point of sentence and have perused the record.
It is submitted by Ld counsel for convicts that convict Zamil Ahmad had already spent a period of about one year in Jail during the trial of the present case. It is further submitted by Ld counsel for convicts that convict Zamil Ahmad belong to poor strata 440/1997NDRS page17/ of the society. It is further submitted by Ld counsel for convicts convict Zamil Ahmad is the sole bread earner for his family. It is further submitted by Ld counsel for convicts that convict Zamil Ahmad is not a previous convict.
On behalf of convict Om Prakash it is submitted by Ld counsel for the convicts that convict Om Prakash is working as taxi driver at New Delhi Railway Station and he was never involved in any other case. It is further submitted by Ld counsel for convicts that convict Om Prakash is the sole bread winner for his family comprising of old parents, wife and 2 minor children aged about 8 years and 6 years respectively. It is further submitted by Ld counsel for convicts that convict Om Prakash had also already spent a period of about 15 days in JC during the trial of the present case.
On the other hand Ld APP for State submitted that the convicts be sentenced to maximum punishment as prescribed for the offences in question.
In the present case, the convicts have been convicted for offences punishable u/s. 332 and 353 IPC. The punishment for offence punishable u/s. 332 IPC may extend upto 3 years of 440/1997NDRS page18/ imprisonment or with fine or both. The punishment for offence punishable u/s. 353 IPC may extend upto 2 years of imprisonment or with fine or both.
No previous conviction has been alleged or proved against the convicts. The convict Zamil Ahmad is also facing trial in a case u/s. 302 IPC; PS NDRS and he is in JC in the said case even prior to 6.9.2010 i.e. the date on which the convict Zamil Ahmad was produced in this court in compliance of P/Ws issued by this court. Thus, the convict Zamil Ahmad had not spent a period of about one year in jail only due to the pendancy/ trial of the present case as he was running into JC in the said case u/s. 302 IPC of PS NDRS as well. It is pertinent to mention that previously convict Zamil Ahmad was on bail in this case.
Convict Om Prakash had already spent a period of about 15 days in JC during the trial of the present case. He is having a family to support. The present case was registered against convict Om Prakash in the year 1997 and since then no other involvement/ conviction has been alleged or proved against him. Convict Om Prakash is earning his livelihood by driving a taxi.
440/1997NDRS page19/ Keeping in view the facts and circumstances and the discussion made hereinabove, I am of the considered view that interest of justice will be served if convict Zamil Ahmad is sentenced to SI for the period already undergone by him during the trial of the present case.
Convict Om Prakash is also sentenced to SI for the period already undergone by him during the trial of the present case and is also sentenced to pay a fine of Rs. 3500/ for offence punishable u/s. 332 IPC and in default of payment of fine SI for a period of 15 days. For offence punishable u/s. 353 IPC convict Om Prakash is sentenced to pay a fine of Rs. 2500/ and in default of payment of fine SI for a period of 7 days.
ANNOUNCED IN OPEN COURT DEEPAK DABAS on 15th of July, 2011 MMCentral04:DELHI. 440/1997NDRS page20/