Delhi District Court
State vs . Shri Kishan Rai on 12 April, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. 18/1997
P.S. Defence Colony
U/s 186/353 IPC
State Vs. Shri Kishan Rai
JUDGMENT :
a. Sl. No. of the case : 8/2
b. Date of Institution : 18.01.2001
c. Date of Commission of Offence : 06.01.1997
d. Name of the complainant : Sh. Satbir Singh
Security Officer
e. Name of the accused and his : Sh. Kishan Rai
parentage and address S/o Bateshwar Rai
R/o 689/7A, Shambhav
Colony, Mandi Pahari,
Mehrauli, New Delhi
f. Offence complained of : U/s 186/353 IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 12.04.2013
i. Final Order : Acquitted
j. Date of such order : 12.04.2013
1. Accused in this case were sent up for trial for the commission of
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PS DEFENCE COLONY
offence U/s 186/353 IPC.
2. The Prosecution case in brief is that on 06.01.1997, at about 1.00 p.m., at AIIMS hospital, New Delhi, accused Kishan Rai had obstructed the complainant namely Satbir Singh, Security Officer from discharging his official duty and also assaulted on him while he was discharging his official duty as public servant. Thereafter on the basis of the complaint of complainant, present case FIR was registered. Investigation was carried out. During the investigation, accused was arrested and thereafter he was sent up for trial by filing the charge sheet before this court.
3. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 03.09.2003, u/s. 186/353 IPC to which he did not plead guilty and claim trial.
4. To prove its case, the prosecution has examined seven witnesses namely Satbir Singh as PW1, Kartar Singh as PW2, HC Neeru as PW3, Pankaj Sharma as PW4, Dr. P.K. Dave as PW5, HC Sham Dev as PW6 and Retd. SI Suresh Pal as PW7.
5. PW1 Satbir Singh has testified that in the year 1997, General Secretary of Employee Union Sh. Raghu Mandal was to sit on FIR NO. 18/1997 PAGE 2 OF PAGE 10 PS DEFENCE COLONY fast unto death in P.C. Block, Foyer under the leadership of accused Krishan Rai present in the court. Accused was the President of the Employees Union. PW1 further testified that in the noon, during lunch hour, the supporters of the accused whose name he did not know, perhaps pushed him while he was on duty at P.C. Block, Foyer. The employees of Union Officials were being warned by them not to organize any Dharna, agitation as there was a stay order of the Hon'ble High Court of Delhi. PW1 further testified that he reported the matter to the police which is Ex. PW1/A. PW1 further testified that his staff was also present at that time. PW1 was cross examined by Ld. APP as he was resiling from his statement given earlier to the police. In his cross examination PW1 has testified that he had stated to the police in his complaint Ex. PW1/A that the accused Krishan Rai obstructed him from discharging his official duties and physically intimidated him while he was on duty.
6. PW2 Kartar Singh has testified that on 06.01.1997, he along with security Khan Singh, Ashok Kumar and security officer Satbir Singh was on duty at P.C Block, AIIMS. PW2 further testified that Raghu Mandal, the General Secretary of Employees Union was sitting on a dharna in P.C Block in front of library gate. The accused present in the court was not there. PW2 further testified that when security Khajan Singh and Ashok Kumar went to remove loud speakers and FIR NO. 18/1997 PAGE 3 OF PAGE 10 PS DEFENCE COLONY flags, he went to Dy. Director office. PW2 further testified that in his presence, no incident of beating/assaulting took place. PW2 further testified that he did not know anything more about this case. PW2 was cross examined by Ld. APP as he was resiling from his previous statement. In his cross examination, PW2 has testified that police did not record his statement Mark A. PW2 has further denied the suggestion to this effect that he was an eye witness of the incident and accused present in the court had assaulted on security officer Satbir Singh and obstructed him from discharging his official duties in his presence.
Ld. counsel for accused did not prefer to cross examine PW2.
7. PW3 HC Neeru has testified that on 07.01.1997, he recorded the present case FIR which is Ex. PW3/A. Ld. counsel for accused did not prefer to cross examine PW3.
8. PW4 Pankaj Sharma has testified that on 06.01.1997, on the call of Security officer Satbir Singh, he had taken the photographs of the office of Employee Union at AIIMS hospital from different angles. PW4 further testified that the General Secretary of the Union namely Raghu Mandal was sitting on Hunger Strike outside the Union office. PW4 further testified that he had submitted the photographs and the same were given to the security Satbir Singh. PW4 further testified that the negatives photographs had already FIR NO. 18/1997 PAGE 4 OF PAGE 10 PS DEFENCE COLONY been destroyed by the order of the competent authority and the Incharge of the Photo Unit had endorsed in this regard on his application which is Ex. PW4/A. Ld. counsel for accused did not prefer to cross examine PW4 also.
9. PW5 Dr. P.K. Dave has testified that on 11.09.2000, after perusal of the record, he made the complaint u/s 195 Cr.P.C against Kishan Rai to prosecute him u/s 186/353 as he physically obstructed and intimated Sh. Satbir Singh, Security Officer of the AIIMS hospital while he was discharging his official duties. His complaint is Ex. PW5/A. Accused did not prefer to cross examine PW5 also.
10. PW6 HC Sham Dev has testified that on 07.01.1997, Duty Officer had handed over to him original tehrir and copy of FIR after the registration of the FIR in the present case. Thereafter after receiving the same, he reached AIIMS hospital police booth and handed over the copy of FIR and original tehrir to the SI Suresh Pal. Ld. Counsel for accused did not prefer to cross examine PW6.
11. PW7 Retd. SI Suresh Pal has testified that on 07.01.1997, he was marked the investigation of the present case by the Duty officer at the instructions of SHO and original tehrir and copy of FIR was handed over to him by Ct. Sham Dev at the police post AIIMS.
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PW7 further testified that he recorded the statement of Ct. Sham Dev. Thereafter he went to the office of security officer Satbir Singh in the AIIMS Campus itself and went to the spot wherein he had prepared the site plan at the instance of complainant vide memo Ex. PW7/A. PW7 further testified that he recorded the statements of other security guards namely Khajan Singh, Kartar Singh and Ashok. PW7 further testified that on 17.02.1997, complainant had handed over to him certain documents of High Court which are Ex. PW5/A. Thereafter he recorded the statement of photographer Pankaj Sharma who took the photographs on the day of incident. In his cross examination, PW7 has testified that he did not know why the photographs had not been placed on record.
12. After closing of prosecution evidence, statement of accused was recorded U/s 281 of Code of Criminal Procedure Code,1973 r/w 313 Cr.P.C. In his statement, he has denied to have committed the offence and claimed to has been falsely implicated in this case. He further denied to lead any defence evidence.
13. I have heard the Ld. APP for the State as well as Ld. Counsel for the accused and also perused the record.
14. The accused has been charged for offences u/s 186 and 353 of IPC. To attract the provision of section 186 IPC, the prosecution must FIR NO. 18/1997 PAGE 6 OF PAGE 10 PS DEFENCE COLONY establish that the complainant was performing his duty as public servant at the time of commission of offence and accused obstructed him in discharge of his public function. To establish a charge u/s 353 of IPC again the first ingredient to be proved is that the accused was a public servant and there was assault or use of criminal force against him by the accused while he was discharging his duty.
15. In the instant case, PW1, who is also complainant, was working as a security officer in the AIIMS hospital at the time of the incident and he is alleged to have been assaulted by the accused during some strike in the hospital. Accused is stated to be leader of the employee union of AIIMS hospital. However, the evidence coming forth from the PW1 itself is not very convincing as far as the role of accused is concerned. In the first place, he did not support the prosecution case in its entirety. Resultantly, he was declared hostile by the prosecution and was cross examined on various material points. PW1 has not stated anything inculpatory against the accused in his examination in chief. He has deposed that he was perhaps pushed by supporters of the accused. He has not stated that he was in any manner assaulted by accused. However, in his cross examination by the prosecutor, he has admitted that in his statement to the police which is proved as Ex PW1/A he had stated that he was intimidated by the accused and obstructed in the discharge of his official duty. However, by this testimony, he has merely admitted his earlier statement to the police, FIR NO. 18/1997 PAGE 7 OF PAGE 10 PS DEFENCE COLONY but not the act of obstruction or assault by accused. Even in Ex.PW1/A, PW1 has not mentioned the actual manner of obstruction or assault. He has merely stated that he was physically intimidated by the accused to prevent him from discharging his duty. How PW1 was physically intimidated by accused is not at all clear from either in evidence in the court or from his complaint Ex PW1/B.
16. The prosecution has examined another eye witness PW2 who was also working as a security guard at the hospital at the time of incident. But he has also not given any credence to the prosecution case. In his evidence before the court, he plainly states that in his presence no incident of beating or assault took place. He has been declared hostile by the prosecution. But even in his cross examination by the prosecutor, he did not say anything to fasten any criminal liability upon the accused. On the contrary, he denied to have made any statement to the police.
17. PW3 is alleged to be a photographer who was called by PW1 to take photographs of the strike movement. But he has not deposed anything against the accused. He has merely stated that he took the photographs and submitted the same to PW1. But there are no photographs on the record. As per the testimony of PW3, the negatives of the photographs were destroyed by the order of the competent authority of the AIIMS hospital. The evidence of PW3 FIR NO. 18/1997 PAGE 8 OF PAGE 10 PS DEFENCE COLONY offers no credibility to the prosecution case.
18. Further more, there is also not evidence to show that PW1 was on duty at the time of incident and he was discharging his public functions. In a criminal case, the burden always lies upon the prosecution to prove its case against the accused by adducing untainted evidence. But the prosecution in this case has not brought on record any document or other record from the hospital to establish that PW1 was posted as a security officer in the hospital and at the time of incident he was on duty.
19. Again, there is not medical evidence to substantiate the allegation that the PW1 was subjected to any assault. In his own evidence, PW1 has deposed that he did not get himself medically examined. The incident took place in hospital and PW1 could have easily got himself medically examined. His explanation in this respect that his priority was to implement the order of the High Court does not go down well because even subsequently he sought no medical help.
20. The prosecution has also not placed on record any material to substantiate the fact that accused was himself employed in the hospital and he was acting as leader of the employee union. The hospital must be having record in this respect, but the same has not been brought on record.
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21. All these infirmities in the prosecution evidence seriously reflects on the varacity of prosecution case the benefit whereof must go to the accused.
22. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Kishan Rai is acquitted for the offence punishable U/s 186/353 of IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 12.04.2013 Metropolitan Magistrate
South East/New Delhi
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PS DEFENCE COLONY
FIR No.18/1997
P.S. Defence Colony
U/s 186/353 IPC
12.04.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 186/353 IPC for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. Same is accepted. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/12.04.2013
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PS DEFENCE COLONY