Delhi District Court
State vs . Surender on 21 October, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST DELHI
STATE Vs. Surender
FIR No. : 989/97
U/SEC : 186/353/332 IPC
PS : Hari Nagar
Unique Case ID No. 02401R0129561999
JUDGMENT
Serial no. of the case 1328/II/97 Date of commission of offence '06.12.1997 Date of institution of the case '06.03.1999 Name of the complainant Ram Chander Name of accused, parentage &Surender s/o Biran r/o B-526, Jhuggi Samta address Dham Hari Nagar Delhi Offence complained of or proved Sections 186/353/332 IPC Plea of the accused Pleaded not guilty Date of arguments '13.10.2011 Final order Accused Surender is convicted. Date of Judgment '21.10.2011
1. The present case was registered on the complaint of Sh. Ram Chander who was employed as a beldar in the MCD Rajouri Garden office. On 06.12.1997 Inspector Mahavir Singh (Licensing/Encroachment Inspector) alongwith the beldars PW2 Ramesh, PW3 Ram Chander, PW4 Mahipal, PW5 Ganesh and PW8 Naresh alongwith the police force comprising of PW7 HC Joginder PW9 Ct. Bahadur, PW10 Ct. Karam Singh, PW11 Ct. Samay Singh, PW12 HC Vijay Pal and PW13 Inspector Mukhtiyar Singh had gone to the Samta Dham Jhuggies in order to remove the illegal encroachment from the ITI Road. When they were removing the illegal encroachments, then at about 01:00 PM the slum dewellers of the area surrounded the complainant Ram Chander and prevented him from removing the encroachments. It is alleged that the slum dewellers started beating him up. It is alleged that the accused Surender was one amongst those slum dewellers who had prevented the complainant from discharging his duties and who was also involved in beating him. All the slum dewellers except for the accused Surender who had beaten the complainant managed to escape. The accused Surender was apprehended by the police officials. The accused was arrested by the police. FIR was registered. Investigation commenced.
2. After the usual investigation, chargesheet was filed against the accused on 06.03.1999. Copies were supplied to the accused. And subsequent to compliance with the provision of Section 207 of CrPC, charge for the offences punishable under Sections 186/353/332 IPC was framed against the accused on 28.05.2002 to which he pleaded not guilty and claimed trial.
3. After framing of charge, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined thirteen witnesses. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded on 16.09.2011 wherein the accused stated that they had been falsely implicated. The accused took the defence that he was not in the crowd at the relevant time. He further stated that he had arrived at the spot later on and on seeing one injured lying at the spot started attending to him when the police came and falsely arrested him. The accused opted not to lead defence evidence.
4. The thirteen prosecution witnesses that were examined during the course of the trial are as follows: 1.) PW1 HC Dalel Singh, duty officer who exhibited FIR Ex. PW1/A on record; 2.) PW2 Ramesh; 3.) PW3 Ram Chander, the complainant; 4.) PW4 Mahipal; 5.) PW5 Ganesh; 6.) PW6 Mahavir Singh;
7.) PW7 HC Joginder, who was part of the police force that had gone to the spot alongwith the MCD officials; 8.) PW8 Mahesh; 9.) Ct. Bahadur Singh;
10.) PW10 Ct. Kadam Singh; 11.) PW11 Ct. Samay Singh; 12.) PW12 HC Vijay Pal; 13.) PW13 Inspector Mukhtiar Singh
5. I have heard the rival submissions at Bar and have gone through the records of this case.
6. In the present case, besides others, the witnesses PW4 Mahipal and PW5 Ganesh who have been projected as eye witnesses by the prosecution have not at all supported the case of the prosecution on the point of identity of the accused. These witnesses were cross examined by the Ld. APP for the State. However their cross examination by Ld. APP for the State on the point of identity of the accused did not elicit anything material which could be said to be favourable to the case of the prosecution. Therefore, the testimonies of PW4 Mahipal and PW5 Ganesh can be of no assistance to the prosecution in establishing the identity of the accused Surender.
7. PW2 Ramesh has also been projected as an eye witness. However, the testimony of this witness is not at all reliable. In his examination in chief, this witness has stated that the accused Surender was amongst the crowd who had beaten the complainant Ram Chander. However, during the course of his cross examination, this witness ended up saying, "it is correct that the accused was not present at the spot and that I gave my statement at the instance of the police". This witness was thereafter re-examined by Ld. APP for the State. In his re-examination this witness did not at all support the prosecution case on the point of identity of the accused and he stated, "it is correct that accused Surender was shown to me at the PS and then I gave the statement as stated by me in my XXX and it is incorrect that I saw accused Surender at the spot beating the Ram Chander". Therefore, from a perusal of his testimony it is evident that the same is full of material contradictions. He has made inconsistent statements that cannot be reconciled with each other. The deposition of this witness in his examination in chief is materially at variance with what was deposed by him in his cross examination and re-examination. It is a settled law that when a witness make inconsistent statements, such a witness cannot be relied upon and his testimony becomes unreliable. Reference in this regard can be made to the case reported as Suraj Mal Vs. The State (Delhi Administration) AIR 1979 SC 1408 and Harchand Singh Vs. State of Haryana 1974 CrLJ 366. I, therefore, hold that the testimony of witness PW2 Ramesh is absolutely unreliable.
8. In order to bring home the guilt of the accused, the prosecution has very strongly relied upon the testimony of the complainant PW3 Ram Chander and the other beldars/officials of the MCD (PW6 Mahavir Singh, PW8 Mahesh) and the police officials who were there at the spot. The complainant PW3 Ram Chander was the most material witness of the prosecution. In his evidence PW3 Ram Chander stated that on the date of the incident, he alongwith other persons from the MCD and the police force had gone to the Samta Dham Jhuggies for removal of encroachment. He further deposed that when they were removing encroachment at about 12:30-12:45 PM several persons gathered at the spot. He went on to depose that when he started running away the accused Surender who was amongst the crowd that had gathered at the spot threw a brick at him. It has further come in testimony that he was also beaten with a lathi on his foot. He stated that due to the injuries sustained by him he fell down on the ground and he was thereafter taken to the DDU Hospital. There is nothing in the entire cross examination of this witness to create any doubt in the case of the prosecution.
9. The testimony of the complainant PW3 Ram Chander stands corroborated to material extent by the witness PW8 Mahesh. PW8 Mahesh was also a beldar in the MCD. He has stated that while they were removing the encroachments, many persons gathered and started obstructing them in the discharge of their duties. He further deposed that during the course of the incident, the crowd had caused injuries to his associates Ram Chander. He also deposed that the accused Surender was amongst the crowd that was involved in the incident. He deposed about the arrest of the accused Surender in his presence. This witness was not cross examined by the defence. And neither at any point thereafter was this witness sought to be summoned under section 311 CrPC for his cross examination. As such the testimony of this witness namely PW8 Mahesh remains unchallenged and unrebutted. The other material witness of the prosecution was PW6 Mahavir Singh. He was the Encroachment Inspector of the West Zone at the relevant time. He testified that on the date of the incident he alongwith the other beldars and peons had gone to the Samta Dham Jhuggies to remove the encroachment. He further testified that a crowd gathered while the encroachment was being removed and they caused injuries to the beldar Ram Chander who was later on taken to the DDU hospital. He further testified that the accused Surender who was one amongst the crowd was also apprehended by the police. This witness was not cross examined by the defence. And neither at any point thereafter was this witness sought to be summoned under section 311 CrPC for his cross examination. As such the testimony of this witness namely PW6 Mahavir Singh remains unchallenged and unrebutted.
10. This leaves us with the police officials who had gone with the MCD staff for their protection to the encroachment removal site. These police officials are PW7 HC Joginder, PW9 Ct. Bahadur Singh, PW10 Ct. Kadam Singh, PW11 Ct. Samay Singh, PW12 HC Vijay Pal and PW13 Inspector Mukhtiyar Singh. PW7 HC Joginder has categorically stated that while the MCD staff was removing the encroachment many persons gathered at the spot and started beating them. He further deposed that the accused Surender had beaten the complainant Ram Chander. Along similar lines is the testimony of PW9 Ct. Bahadur. These two witnesses PW7 HC Joginder and PW9 Ct. Bahadur were not cross examined by the defence and as such their testimonies have stood unrebutted and unchallenged.
11. PW10 Ct. Kadam Singh testified that while the encroachment was being removed, residents of the jhuggies gathered and they interfered in discharge of their official duties and beat up the complainant. He also deposed that the accused Surender who was one amongst the crowd was apprehended at the spot. PW11 Ct. Samay Singh and PW12 HC Vijay Pal have deposed along the same line as that of PW10 Ct. Kadam Singh. PW13 Inspector Mukhtiyar Singh deposed that on the date of the incident he alongwith the other police officials and the MCD Staff had gone to the Samta Dham Jhuggies for removal of encroachment. He further deposed that at the spot the persons in the locality had gathered and started beating the complainant Ram Chander. He also testified that all the offenders except for the accused Surender managed to escape. It has further come in his testimony that the complainant was taken to the hospital for medical examination and his statement Ex. PW13/A was recorded. He also deposed about registration of the FIR, preparation of the site plan and tha arrest of the accused. He also exhibited on record the complaint under section 195 CrPC as Ex. PW13/E. The witnesses PW10 Ct. Kadam Singh, PW11 Ct. Samay Singh, PW12 HC Vijay Pal and PW13 Inspector Mukhtiyar Singh were cross examined by the defence counsel. However there is nothing in their cross examination to even create remote a doubt in the case of the prosecution.
12. Counsel for the accused argued that the oral testimony of the prosecution witnesses, identifying the accused, is not at all liable to be believed. Counsel for the accused drew the attention of the court to the portion of the testimony of the complainant Ram Chander where it has recorded that there were about 100-150 persons at the spot. It is submitted by him that it is extremely difficult to identify any single person out of the crowd of 100- 150 persons. In the present case, it is correct that a big crowd had gathered at the spot. In the present case it is certainly not that the accused Surender has been identified by only one witness. But, he stands identified by as many as nine witnesses including the complainant Ram Chander. Out of those nine witnesses three were the MCD officials and the rest were the police officials who had gone to the spot for their protection. The evidence of a sole eye witness identifying the accused out of a large crowd may be faulted. But evidence of as many as nine witnesses who have categorically identified the accused to be part of the crowd that had gathered at the spot and had interfered and prevented the complainant from discharging his official duty and also beaten him, certainly cannot be faulted. In the case reported as Mahantappa Vs. State of Karnataka AIR 1999 SC 314 the accused were alleged to have formed unlawful assembly, assaulted the deceased with sword and thereafter threw his body in a hut which was set on fire. The Apex Court in this case acquitted few co-accused who were solely identified by only one witness observing therein that there was no evidence to establish that the co-accused were the members of unlawful assembly. The Apex Court has also held after acquitting the co-accused that their presence at the scene of crime merely as onlookers cannot be ruled out. This present case certainly does not fall within the ambit of the ratio laid down in Mahantappa case for the reason that there is not one eye witness who identifies the accused but there are nine witnesses who have categorically stated that the accused Surender was part of the crowd that had committed the alleged offence.
13. Counsel for the accused further argued that all the witnesses apart from the complainant Ram Chander have not attributed any specific act to the accused. It is stated by him that besides the complainant Ram Chander there is no other witness to state that the accused Surender had actually caused injuries as alleged by the prosecution. It was argued by him that the sole testimony of the complainant wherein he attributed specific act to the accused cannot be believed. I am not inclined to accept this argument of Ld. Counsel for the accused. The complainant who was the victim has specifically stated that the accused Surender had thrown a brick at him. The other witnesses have also stated that the accused was part of the crowd that had been beating the complainant. The evidence of the witnesses on this score is not liable to be disbelieved.
14. In the present case, the person who had given the complaint under section 195 CrPC has not been examined. It may therefore be argued that the accused could not be convicted for the offence under section 186 IPC for the reason that the sanctioning authority who had given the complaint under section 195 CrPC has not been examined. Although this point was not argued, yet it is necessary to deal with this aspect. In this connection, the judgment reported as State, CBI Hyderabad Vs. Edwin Devasahyam AIR 2007 SC 2507 is material. This was a case against a public servant under The Prevention of Corruption Act, 1988 where the sanctioning authority was not examined by the prosecution during the course of the trial. The conviction was, inter alia, challenged on the ground that the sanctioning authority had not stepped into the witness box to prove the sanction. The Apex Court held that the non-examination of the sanctioning authority was not fatal to the prosecution when the sanction order has been placed on record and the same contained the details showing application of mind by the concerned authority. In this connection, there is yet another judgment of Apex court holding that the non-examination of the sanctioning authority is not at all fatal to the prosecution case. This judgment is reported as State of Madhya Pradesh Vs. Jiyalal 2009 (4) RCR Criminal 137. The relevant observation of the Apex court in this connection out of this judgment are as follows: "It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bond fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution".
15. Although, the aforesaid two judgments were in the context of sanction required under The Prevention of Corruption Act; yet the law of the land as laid down thereunder would, of course, apply to the instant case, too, as regards the sanction under section 195 CrPC. Therefore, in the light of the ratio decidendi of the aforesaid two judgments, I hold that the non- examination of the sanctioning authority who had given the complaint under section 195 CrPC was not at all fatal to the case of the prosecution.
16. The accused in his statement under section 313 CrPC took the defence that he was not there in the crowd and that he had reached the spot later on and saw one injured at the spot when the police arrested him. The defence of the accused appears to be false and a complete afterthought. This is for the following reasons. In the cross examination of none of the prosecution witness the accused ever took this defence by putting such a suggestion in their cross examination. In the cross examination of none of the prosecution witness the accused had put the suggestion that he came to the spot some time later and he was arrested when he stopped to see the injured lying at the spot. On the contrary, in the testimony of PW12 HC Vijay Pal the accused has taken an altogether different defence. In the cross examination of PW12 HC Vijay Pal the accused had put the suggestion to him that he had been picked up from his tea stall by the police, which suggestion was of course denied by the witness. Therefore, what appears is that the defence which the accused has taken in his statement under section 313 CrPC does not inspire any confidence and the same is a complete afterthought.
17. From the evi dence on record what stands established is that the MCD staff including the complainant Ram Chander had gone to Samta Dham Jhuggies for removal of encroachment. From the evidence on record it also stands established that the complainant Ram Chander while discharging his duties was beaten by the residents of the locality including the accused Surender.
18. In view of the foregoing discussion, this court is of the view that the prosecution has successfully proved its case against the accused beyond reasonable doubt. The accused Surender therefore stands convicted for the offences under sections 186/353/332 IPC.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 21st October, 2011 MM-02/WEST DELHI
21.10.2011