Delhi District Court
State vs Ganpat Singh Etc. on 14 February, 2012
IN THE COURT OF SHRI SHAILENDER MALIK : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
State Vs Ganpat Singh Etc.
FIR No.302/97
U/S: 147/148/149/186/332/353 IPC
P.S.: Shahdara
Date of Institution of case: 25.2.1999
Date on which judgment is reserved: 06.02.12
Date on which judgment is delivered: 14.02.12
Unique I.D. No. 02402RO3389020003
J U D G M E N T
a) Sl. no. of the case 276/03 b) Date of commission of offence 18.6.1997 c) Name of complainant Ashwini Kumar
d Name of accused, his parentage 1. Ganpat Singh @ Chijju S/o Sukhveer Singh R/o: 109, gali no. 10, Balbir Nagar, Shahdara, Delhi
2. Smt. Bimlesh Sharma W/o Shri Chain Sukh R/o:
G 110, gali no. 10, Balbir Nagar, Shahdara, Delhi.
FIR NO. 302/97 page1 of 19 pages
(Discharged)
e) Offence complained of or proved U/S:186/332 and 353
IPC
f) Plea of the accused :Pleaded not guilty
g) Final order : Acquitted
h) Date of such order :14.2.2012
j) Brief reasons for the just decision of the case
1. Accused Ganpat Singh s/o Sukhveer Singh and Smt Vimlesh Sharma were sent up to face trial for offence u/s 186/332/353/379 IPC r/w section 148 and 149 IPC. Factual matrix of the matter is that on 18.06.97 upon receipt of DD No. 42B, SI Ravinder Kumar along with Ct Mukesh went to the place of occurrence i.e gali no.10, G110, Balbir Nagar Extension, Shahdara where IO found that public persons had thrown stones at the MCD officials and have also damaged vehicle bearing no. DL 1C 2036 of MCD. MCD officials were hiding themselves in the street and after arrival of police, they came out and statement of one Ashwini Kumar, J.E North Zone, MCD was recorded. Complainant has stated that on 18.06.97 at the Control Room, Shahdara Zone, a complaint was received regarding unauthorized construction at House FIR NO. 302/97 page2 of 19 pages No. G110, Gali No.10, Balbir Nagar Extension, Shahdara.
Complainant states that upon receipt of said complaint, he along with other officials of MCD namely Niranjan Lal Sharma and Kishori Lal as well as labourers in a truck No. DL 1G A0471 and in Maruti Gypsy No. DL 1C 2036 went to the place where unauthorized construction was going on for stopping said construction or for demolishing of unauthorized construction. Complainant further states that when they reached at the above said address, they found that unauthorized construction was going on at the first floor of that house and when he made the enquiries, one lady came out from that house and claimed herself to be the landlady of that house. In the meantime, two/three other persons were called by her. Complainant states that when he enquired from them about any sanction plan for construction, they flatly refused to have any sanction plan regarding construction which was going on there. Complainant has stated that when they started the process of demolishing the unauthorized construction, many persons of the locality gathered there and they started misbehaving with them. Complainant has further alleged in his complaint that people of that locality started obstructing in their work and had also started beating them and in that process many persons started throwing stones/bricks on them and when situation went out of FIR NO. 302/97 page3 of 19 pages control, all the officers came down from that floor and mob gathered there started giving pushes and throwing stones on their vehicle No. DL 1C 2036 and even tyres of that vehicle were busted. Moreover, wireless set and log book of that vehicle was also taken away. In the meantime, somebody had called police by dialing 100 number and PCR van reached at the spot. Though complainant expressed his unwillingness for medical examination, however, has alleged that even their clothes were torn and they were assaulted while discharging their official duties.
2. Upon the above said complaint of JE Sh Ashwini Kumar, present case was registered and investigation was carried out. In the course of investigation, IO prepared the site plan and took photographs as well as collected the stones and broken pieces of glasses of the MCD vehicle. On 24.06.97, accused Ganpat was arrested when he was identified by MCD staff to be one of the assailant. Accused Ganpat stated to have made disclosure statement and thereafter on 11.08.97, land lady of house in question was also arrested. Other assailants were also stated to be apprehended and as per the disclosure statement of accused Ganpat, these persons were shown to the officials of MCD but they could not identify them and FIR NO. 302/97 page4 of 19 pages therefore, they were not arrested. Ultimately upon completion of investigation, chargesheet was filed.
3. Copy of chargesheet was supplied to both the accused free of cost. Vide order dated 17.02.07, Ld Predecessor of this Court discharged Smt Vimlesh Sharma on the ground of non availability of any evidence against her whereas charge for the offences u/s 186/332/353 IPC was framed against accused Ganpat to which he pleaded not guilty and claimed trial.
4 In order to substantiate charge, prosecution has examined as many as 13 witnesses. PW1 is complainant Sh Ashwini Kumar, JE who has testified that on 18.06.97 while he was posted at Shahdara North Zone of MCD as JE, a complaint was received at the Control Room regarding unauthorized construction by owner of House No. G110, Gali No.10, Balbir Nagar Extension, Shahdara at first floor. PW1 says upon receipt of said information from Control Room, he along with Sh Rajiv Goswami, A.E, Niranjan Lal Sharma, NE, Kishori Lal, PRO along with other staff went to the spot in a truck no. DL 1GA 0471 and Maruti Gypsy No. DL 1C 2036 for stopping/demolishing of unauthorized construction which was going on there. PW1 further says that when he reached at the spot, he saw unauthorized construction was going on at FIR NO. 302/97 page5 of 19 pages first floor and upon asking, one lady came out of that house and stated that she is the land lady and thereafter 2/3 persons gathered there. PW1 says that when he asked regarding sanction of building construction, they denied having any sanction regarding said construction. PW1 says that when they started demolishing unauthorized construction, many local people gathered there and started obstructing their public work and started threatening them. Further, they started giving beatings and their vehicles were damaged. PW1 also says that in the fight, their clothes were also torn. PW1 further proved his statement given to the police as Ex.PW1/A. He also proved site plan prepared by the IO at his instance as well as seizure memo Ex.PW1/C vide which bricks/stones thrown at the spot were also taken into police possession. Seizure memo of Maruti Gypsy in damaged condition is Ex.PW1/D. PW1 in his further evidence has identified the accused and has testified that he was the one who called the people at the spot. PW1 says that accused instigated the people to beat them. Wind screen of the vehicles were broken and tyres were deflated. PW1 also proved photographs from Ex.PX1/1 to Ex.PX1/11. PW1 has also proved the authorization/authority letter in his favor given by Executive Engineer, Shahdara North Zone MCD as Ex.PW1/E. FIR NO. 302/97 page6 of 19 pages 5 PW2 is another official of MCD Sh Kishori Lal, JE who has also told all these facts as stated by PW1. PW2 has also testified that on 18.06.97, a complaint was received at Control Room regarding unauthorized construction at the above mentioned address. He along with Ashwini Kumar, JE and other staff had gone in a truck and a Maruti Gypsy. PW2 has also stated that when they saw unauthorized construction going on at the first floor, enquiries were made upon which lady came out and claimed herself to be landlady of the house and in the meantime 2/3 persons came there. PW2 also testified that when sanction for construction was demanded, they denied to have any sanction regarding construction. PW2 also says that when unauthorized construction was started to be demolished, local people gathered there started obstructing them and started giving them beatings and damaged their vehicles. He also identified the accused to be one present at the spot and called the people at the spot. of the persons who was present at the spot . PW2 has also stated that accused instigated the people to beat them and to damage the vehicle.
6 PW3 is Sh Rajiv Goswami, AE MCD whose evidence is FIR NO. 302/97 page7 of 19 pages
also on the same lines as that of PW1 and PW2. PW3 has also identified the accused and has also testified that accused was instigating people to beat them and to damage their vehicles. PW4 is ASI Babu Ram who proved formal registration of FIR as Ex.PW4/A. 7 PW5 is one Vinod Kumar who has testified that on 18.06.97, upon receipt of information regarding unauthorized construction, he accompanied other officials of MCD for going to the House No. G110, Gali No.10, Balbir Nagar Extension, Shahdara and when demolishing of unauthorized construction was started, many persons started pelting stones and assaulted them. PW4 says that due to that incident, they all fled away. Since witness has not completely supported the prosecution story, therefore, he was allowed to be cross examined by Ld APP for State wherein witness did not identify the accused to be one of the assailant or one who man handled the MCD staff or pelted stones. Statement of witness is Ex.PW5/PA was confronted , however, witness denied to have given any statement to the police.
8 PW6 is Ct. Mukesh who accompanied the IO at the spot and has also testified that SI Ravinder Kumar recorded the statement of the complainant Ashwini Kumar and prepared FIR NO. 302/97 page8 of 19 pages rukka which was handed over to him for getting the FIR registered. PW6 is stated to have gone to PS and after getting the FIR registered from DO, came back at thespot and handed over the FIR and original rukka to the IO.
9 PW7 is Niranjan Lal Sharma, JE MCD who has also proved all these facts as stated by PW1, PW2 and PW3. PW7 has also identified the accused to be one who was at the spot and was calling the people and was instigating them to assault them as well as for damaging the official vehicles.
10 PW8is Ct. Rajesh Bal wo has testified that on 24.06.97, he joined the investigation along with SI Ravinder Kumar and went to the office of MCD where one of the witness Kishori Lal was sent for identification of accused as one who was present on the date of occurrence. Thereafter, they stated to have gone to the spot where above said witness stated to have identified the accused to be one of the assailant. Witness has also testified about the involvement of accused and arrest vide personal search memo Ex.PW5/B. Witness has also proved his disclosure statement of the accused as Ex.PW8/A. 11 PW9 is SI Satya Prakash who has testified that on 14.02.98, investigation was handed over to him and he search FIR NO. 302/97 page9 of 19 pages those accused persons whose names were revealed in the disclosure statement of accused Ganpat and in this regard a notice u/s 160 Cr.P.C was given to the complainant Ashwini Kumar and Rajiv Goswami which are Ex.PW9/A and Ex.PW9/B and thereafter, he took the witnesses to the spot for identifying those persons. However, witness Ashwini Kumar and Rajiv Goswami had stated that those persons were not involved in the incident and therefore, their statement was recorded qua those persons. PW9 has further stated that in his investigation, a formal complaint u/s 195 Cr.P.C was also collected from Executive Engineer and subsequently chargesheet was filed.
12 PW10 Rajiv Kumar Tiwari also proved the said formal complaint filed by Executive Engineer as Ex.PW10/A. PW11 is HC Ved Perkash who had taken the photographs at the spot which are Ex.PX1/11 to PX1/11. PW12 is Inspector who has testified about the steps taken by him in the course of investigation. PW12 says that upon receipt of intimation vide DD No. 42B regarding incidence of quarrel, he along with Ct Mukesh had gone to House No. G110, Gali No.10, Balbir Nagar Extension, Shahdara where IO stated to have recorded the statement of complainant Ashwini Kumar and prepared rukka and has also testified about taking of photographs FIR NO. 302/97 page10 of 19 pages Ex.PX1/1 to Ex.PX1/11. PW12 also seized bricks/stones thrown at the spot on other MCD officials vide seizure memo Ex.PW1/C. PW12 says that Govt. vehicle No. DL 1C 2036 was also taken into police possession vide memo Ex. PW1/D. Site plan is Ex.PW1/B. Witness has also testified about arrest of accused and recording of his disclosure statement, seizure of case property like pieces of bricks taken from the spot and broken glasses were also proved by the witness as Ex.P1 and Ex.P2. PW13 is Inspector Maha Vir Singh who had also carried out some of the investigation. He has further testified that he tried to search for the accused and thereafter investigation was handed over to SI Satya Prakash.
13 Upon completion of prosecution evidence, all the incriminating evidence were put to the accused in statement of accused recorded in terms of section 281/313 Cr.P.C wherein accused while denying the evidence has taken the plea that he has been falsely implicated in this case on the ground that he is neither the owner nor having any concern with House No. G110, Gali No.10, Balbir Nagar Extension, Shahdara. Accused states that owner of the property in question has already been discharged. Accused says that he is a disabled person and is unable to move without sticks. Accused has also denied to be present at the spot at the time FIR NO. 302/97 page11 of 19 pages of incident.
14 No evidence was led in defence.
15 I have heard Ld. APP for State and Sh Pradeep Sharma, Ld. Counsel for the accused. Having heard the submission at bar & having gone through the record care fully. Let us first discuss the legal requirements for proving charge u/s 186/332 & 353 IPC. Sections 186, Indian Penal Code reads as under: "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."
Section 332 IPC provides "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."
So the intent to prevent or deter a public servant from discharging his duties as such public servant is an essential ingredient of the charge under the second part of S.332. Section 353 IPC read as under : "Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such FIR NO. 302/97 page12 of 19 pages 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."
16 A bare glance through the same leaves no doubt that the assault or intimidation to the public servant must be with intent to prevent or deter that person from discharging his duty as such public servant. Offence u/Section 353, I.P.C, requires following ingredients:
(a) the accused should have assaulted or used criminal force;
(b) that the assault or criminal force should have been directed against a public servant; and
(c) that the public servant should have been acting in execution of his duty.
17 So section 186, Indian Penal Code relates to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 332, IPC the ingredient of voluntarily causing hurt as a consequence of assault or use of criminal force while the public servant is discharging his duty with the intent to prevent or deter such public servant from discharging his duty as such public servant, is necessary. The gravity of the FIR NO. 302/97 page13 of 19 pages two offences is, therefore, different. Similarly under S. 353, Penal Code, the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary.
18 Having discussed the legal proposition let us now appreciate the facts of the case. As discussed above officials of MCD who were present at the spot are PW1, PW2, PW3 PW5 and PW7. Perusal of their evidence would show that PW1, PW2, PW3 and PW7 though consistently stated about reaching of house no. G 110, gali no. 10, Balbir Nagar Extention where they found that unauthorised construction was going on and a lady claimed herself to be the land lady of that house who failed to produce sanction regarding the construction and therefore when the process of demolishing unauthorised construction was started, many people gathered there and started throwing stones and started beating them. If we assess their evidence in cross examination PW1 Ashwini Kumar has testified that accused was just making the noise to collect people and asked the people to beat MCD officials. PW2 Kishori Lal when cross examined has testified that accused himself did not beat them nor directly obstructed them in discharge of their officials duties. PW2 further testified that accused was having a lathi in his hand and was moving the same in the air. In the further FIR NO. 302/97 page14 of 19 pages cross examination of PW2, witness was duly confronted with his previous statement Ex. PW2/A where all those facts were not stated. Similarly cross examination of PW3, Rajeev Goswami would also indicate that even this witness has stated that accused did not beat them nor directly obstructed in discharging of their officials duties. PW3 has also testified that accused was having a lathi in his hand which he was moving in the air. PW3 was also confronted with his previous statement recorded before the police Ex. PW3/DA where all those facts which these witnesses have attributed to the accused were not mentioned.
Another witness is PW5 Vinod Kumar who had not supported the prosecution case and even has not testified even a single word regarding the accused facing the trial.
PW7 is Niranjan Lal Sharma, when he was also cross examined this witness has also admitted that accused Ganpat had not given any beating to any of the MCD official nor he obstructed them in discharge of their official duties. PW7 has also testified that accused was having a lathi in his hand which he was moving in the air. Thus reading the evidence of PW1, PW2 , PW3, PW4 and P7 it would be very much clear that none of these witnesses have given any evidence which connect the accused with the crime. Although it is the version of the complainant that at the time of incidence many public FIR NO. 302/97 page15 of 19 pages persons were gathered but as discussed above police has charge sheeted two accused out of which one accused has already been discharged for want of any evidence against her, whereas the accused Ganpat has no concerned with the property where unauthorised construction was allegedly going on. Moreover none of these witnesses have attributed any part of beating or obstructing in discharge of duties to accused Ganpat.
Therefore the evidence of these witnesses do not satisfy the essential requirements for proving the charge under section 186, 332 and 353 as discussed above.
Important aspect in this case which is required to be discussed that on the complaint given by complainant Ashwini Kumar, JE, present case was registered. In that complaint, the complainant has stated that certain persons obstructed in discharge of their duties and started giving them beatings as well as damaging their vehicles etc. It is also stated that he and other MCD officials can identify those persons who were involved in the crime. But surprisingly, IO has not got conducted Test identification Parade in the presence of any Magistrate. So far as arrest of the accused Ganpat is concerned he was arrested on 24.6.97 stated to be identified by Vinod MCD officials in the P.S. First of all, identification of the accused in the P.S. has no legal FIR NO. 302/97 page16 of 19 pages recognition. Moreover in the evidence of IO, PW12 Inspector Ravinder Kumar, it has come that on 24.6.97 he along with Ct. Rajesh Bal and one labourer of MCD Vinod Kumar went to the spot where said Vinod Kumar identified the accused and upon which accused was arrested. Evidently Vinod Kumar appeared in the witness box as PW5. He has not testified about identifying the accused Ganpat on 24.6.97. Moreover no memo regarding identification was prepared or proved on record. It be noted that whenever question of identity of the accused is involved in case complainant is not known to the accused, in terms of the provisions of section of 9 of Indian Evidence Act, Test Identification Parade is required to be conducted by the IO in the presence of Magistrate. In this regard, reference can be given of judgment in Ravi v. State Rep. by Inspector of Police 2007 CRI. L. J. 2740 (SC) where it was held that it is no doubt true that the substantive evidence of identification of an accused is the one made in the Court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. Such test identification parade is required to FIR NO. 302/97 page17 of 19 pages be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographs published in the newspaper. Where the manner in which occurrence took place as well as conduct of prosecution witnesses do not lead to an inference that the accused has been properly identified, the conviction is not sustainable and the accused is at least entitled to benefit of doubt. Similarly in Ayyappan v. State of Kerala 2005 CRI. L. J. 57 Where Identification parade was not conducted. Authentic identification made for first time in Court. It was held that such identification is inherently uninspiring and cannot be accepted or acted upon unless sufficient circumstances are there to corroborate such identification. Reference can also be given of judgment of Supreme Court in Lakhwinder Singh v. State of Punjab 2003 CRI. L. J. 3058 = AIR 2003 SC 2577 Where in a murder case, eye witness not knowing assailants. Not holding of test identification parade to identify assailants, held fatal to prosecution.
Thus in this case first of all, Test Identification Parade was not conducted as required in the Law. Moreover whatever identification evidence was collected during the investigation FIR NO. 302/97 page18 of 19 pages that was not proved . Therefore. question of identity of the accused has not been properly proved on record. In the light of this, if we see the evidence of PW1, pW2, PW3 and PW7 they have also not said anything against the accused regarding beating of them or obstructing them in discharging of their duties. Therefore, I find that evidence came on the record does not completely connect the accused with the crime. There being lack of complete evidence benefit of which has to be given to the accused as a consequence thereof accused is entitled to be acquitted.
ANNOUNCED IN OPEN COURT ON 14.02.12 (SHAILENDER MALIK) ACMM-II, North East, KARKARDOOMA COURTS:
DELHI FIR NO. 302/97 page19 of 19 pages