Delhi District Court
State vs . on 20 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 3887/2017
Unique Case ID No. -: DLSW020129572017
FIR No. -: 288/2014
Police Station -: Chhawla
Section(s) -: 353/186/34 IPC.
In the matter of -
STATE
VS.
YASHPAL YADAV
S/o Sh. Hari Ram,
R/o H. no. 137,
Near Radha Krishan Mandir,
Village Kanganheri,
Najafgarh, New Delhi.
.... Accused
1. Name of Complainant : Sh. Saurav Sharma
2. Name of Accused : Yashpal Yadav
Offence complained of or
3. : 353/186/34 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 07.05.2014
offence
6. Date of Filing of case : 22.05.2017
7. Date of Reserving Order : 10.02.2023
8. Date of Pronouncement : 20.03.2023
9. Final Order : Convicted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 1 of 17
"There is no grievance that is a fit object of redress by mob law"
Abraham Lincon Accused, as member of a bigger mob, beat up certain BSES officials, to prevent them from carrying out inspection, and discharging their duties. Although other members of mob were never arrested or identified, since prosecution has proved its case against accused cogently, he is convicted for the offence alleged against him.
BRIEF STATEMENT OF REASONS FOR THE DECISION
-:
FACTUAL MATRIX -
1. Accused is facing trial for the offence punishable under Section 186/353/34 Indian Penal Code (hereinafter, the 'IPC'). It is the case of prosecution that a team of BSES officials, headed by Saurav Sharma, Assistant Manager in BSES, RPL Enforcement, Hari Nagar had gone for inspection of the electric meter in the house of Smt. Sunil Devi at village Kanganheri.
While they were still searching for the address, a mob accosted the raiding party. 3-4 persons caught hold of the said Saurav Sharma, and beat him up with iron rods. Videographer Amit and lineman Hakim Singh were also beaten up by the mob. In the scuffle that ensued, mobile phone and spectacles of Saurav Sharma were also damaged. Some how, the team of BSES managed to escape from the spot. MLC of no injured was conducted, as they did not receive any serious injuries. Later on, name of one of the assailant was discovered to be Yashpal S/o Sh. Hari Ram, as the said accused used to work with Marble Industries for BSES.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 2 of 172. On the basis of this complaint an FIR was registered, investigation was conducted and upon conclusion of the same, the subject chargesheet was filed against Yashpal S/o Sh. Hari Ram for the offence punishable under Section 356/186/34 IPC.
3. Accused was summoned to face trial, when he entered appearance in compliance of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"), copy of chargesheet was supplied to him. Formal charge under Section 186/354/34 IPC was framed against the accused on 12.10.2017, to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. Thereafter proceedings were adjourned for recording of P.E. To prove its case, prosecution examined a total of eight witnesses-
Witness Name Nature of testimony PW-1 Saurav Sharma / He supported the case of prosecution.
Complainant/ part In his examination in chief, he testified of the raiding that when his team was searching for team BSES. the relevant electric pole number as per the testing lab report, they were attacked by a mob, which included accused Yashpal. He testified that when the team ran outside the village to save themselves, the accused, alongwith some others, again accosted them, after reaching the spot in two vehicles and some bikes and again beat them up. In his testimony, CW-1 relied upon the complaint made by him to the police Ex. PW1/A. He identified the accused correctly in his testimony. He Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 3 of 17 was duly cross examined by accused and discharged.
PW-2 Amit Kumar, part He deposed that he was part of the of the raiding team of BSES that had gone to conduct team BSES. the inspection on the day of the incident. He testified that had had joined the team in the capacity of photographer. He deposed that the entire team except the driver of their vehicle was beaten up by the mob that had collected in the village. However, PW-2 failed to identify the accused as being part of the mob that had attacked him and his team. PW-2 was not cross examined despite opportunity.
PW-3 ASI Sanjeev He deposed that he registered the Kumar/ DO subject FIR Ex. PW3/A, and also made Writer. the endorsement on the rukka Ex.
PW3/B. He also proved on record the certificate under Section 65 B of Indian Evidence Act, filed in support of subject FIR, being Ex. PW3/C. He was not cross-examined despite opportunity.
PW-4 Vipin Kumar/ part He testified that on the day of of the raiding incident, he was working as an team BSES. Engineer in BSES Enforcement office, and he was part of the raiding team that had gone to Kanganheri Village on the day of the incident. He deposed that when he and his team were searching for the electric pole for the purpose of the carrying out the inspection, they were attacked by a mob of 10-12 villagers. Upon this they ran from the spot. However, the villagers apprehended some team members, with whom they were already acquainted, and beat them up.
PW-4 deposed that PW-1 Saurav sustained injuries in the attack and his Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 4 of 17 mobile phone was also damaged. PW-4 also failed to identify the accused in his testimony. In his cross examination, PW-4 denied the suggestion that he was not the member of the raiding party on the day of incident. After being cross examined thus, PW-4 was discharged as a witness.
PW-5 Hakim Singh / He testified that on the day of incident part of the raiding he was working as a Technician with team BSES. BSES, BRPL, and was part of the raiding team that was attacked at Kanganheri village. He testified about the attack that had taken place on his team by a mob, and corroborated the prosecution version. However, he deposed that due to the lapse of time since the day of the incident, he can not identify any member of the mob that had attacked him. In his cross examination he accepted as correct the suggestion that he had not taken any medical treatment on the day of the incident. After being duly cross examined by the accused PW-5 was discharged as a witness.
PW-6 Insp. Ram Niwas He deposed that on the basis of the complaint given by Saurav Sharma, he had prepared the tehrir Ex. PW1/A, and he got the subject FIR registered.
PW-6 was not examined despite opportunity.
PW-7 HC Jaswant Singh He testified that IO ASI Manveer Singh had arrested the accused in his presence, vide arrest memo Ex.
PW7/A. PW7 was not cross examined despite opportunity.
PW-8 Mohit Sibbal, He testified that on the day of incident Assistant, BSES a raiding team consisting of Saurav Enforcement Sharma, Hakim Singh, a line man, Mr. Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 5 of 17 Office, Hari Nagar Vipin, DET and Amit videographer was constituted, and they had left the office for carrying out the inspection at 10.30 AM. He testified that at about 02.00 PM on the said date, he had received an information that certain villagers had attacked the raiding team, and he was informed of the name of the accused and being one of such villagers also. In his testimony he relied upon the complaint filed by him under Section 195 CrPC against the accused, Ex PW8/A. He also relied upon the notification of Government of NCT of Delhi Ex.PW8/B. PW8 was not cross examined despite opportunity.
5. No other witness witnesses were examined by the prosecution and P.E was closed thereafter.
6. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath under Section 313/281 CrPC. He submitted that he is innocent and has been falsely implicated in the present case. He submitted to the court that on the day of the incident he was attending his official duties at JP Kalan, and was not present at the spot of the incident. Accused opted to lead D.E in the affirmative.
7. At the stage of D.E, accused examined one Naresh Yadav as the sole witness. DW-1 Naresh Yadav testified that on the day of the incident he alongwith the accused were installing Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 6 of 17 meter in a house, and the accused could have not been the part of the mob which has allegedly attacked BSES officials. He testified that the accused Yashpal told him that he has been falsely implicated in the case because of his previous animosity with the BSES officials.
In his cross examination, DW-1 deposed that he does not remember the house number in which he and accused were installing the meter on the date of incident. He also failed to bring on record any document to support his testimony despite specifically being asked to do so. He testified that he came to know about the previous animosity of accused Yaspal with the team of BSES only 10 days prior to the date on which his testimony was recorded. After being cross examined thus, DW-1 was discharged as a witness.
8. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
9. Ld. APP for the State argued that with the help of prosecution witnesses, the prosecution has been able to establish all the necessary ingredients alleged against the accused. Per contra, Ld. Counsel for the accused argued that ingredients of the offence punishable under Section 186/353 IPC are not attracted in the present case, as BSES official can not be termed as public servants. He further argued that the accused has been falsely implicated in the case, and was not even present at the spot of the incident, at the time of the incident.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 7 of 1710. In order to establish the offence punishable under 186 IPC, the prosecution must fulfil all the essential ingredients of the offence. Section 186 IPC is reproduced for ready reference-
Section 186 IPC 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."
In order to establish the offence under 353 IPC, the prosecution must fulfil all the essential ingredients of the offence. Section 353 IPC is reproduced for ready reference-
Section 353 IPC 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 to 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."
11. Qua the aforesaid provisions, Hon'ble Supreme Court of India held in Durgacharan Naik Vs. State of Orissa 1966 AIR 1775, " It is true that most of the allegations in this Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 8 of 17 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 Sections 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. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section.
12. In the case at hand, prosecution has alleged both obstruction by accused of public servants dischargeing their duties, and assault committed, for such obstruction.
13. Indeed by virtue of Section 195 CrPC, cognizance of the offence under Section 186 IPC can only be taken on the basis of complaint filed by a public servant. The said complaint on the Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 9 of 17 basis of which the cognizance in the present case was taken is Ex. PW8/A. The same has been duly proved by author thereof, PW8.
14. Now it is to be seen if the raiding party of BSES which was attacked allegedly on the day of the incident can be said to be constituted of public servants within the meaning of Section 21 of IPC. At this juncture reliane is to be placed on the notification Ex. PW8/B of the Delhi Government, as per which all technical officials, not below the rank of Assistant Engineer, are authorised officers for the purpose of Clause (a) and Clause (b) of sub-Section (2) of Section 135 of the Electricity Act. Section 135(2) of Electricity Act 2003 is also been produced herein for reference.
Section 135 (2) 1 Any officer of the licensee or supplier as the case may be, authorized in this behalf by the State Government may -
(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity 2[has been or is being,] used unauthorisedly;
(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been, or is being, used for unauthorized use of electricity;
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under sub-section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 10 of 17
15. Perusal of the aforesaid provision makes it clear that the legislature has provided power of search and inspection to the officers of BSES, who have been authorised to do so by the government itself. Therefore, by virtue of Section 135(2) of the Electricity Act, 2003 as well as the notification Ex. PW8/A dated 12.0.2007, any officer who has been authorised by the government, when he exercises his power under Section 135 of Delhi Electricity Act, is a public servant within the meaning of Section 21 of the IPC.
16. Reference can also be placed on Section 126 of Electricity Act. Section 126 of Electricity Act provides for assessment of any place or premises, or gadgets, equipments, machines or devices for the purpose of ascertaining if electricity is being used unauthorisedly, and the proviso thereof provides that officer of a licensee is also an "assessing officer". Needless to say, BSES is one such licensee. Furthermore, PW1, PW2, PW4 and PW5 have all deposed that they were part of the team of BSES that had gone for inspection of a particular house at Village Kanganheri on the day of incident, with lab testing report. No document, concededly, was brought on record by any of the witnesses to show that they had gone to the village for such inspection. Be that as it may, their consistent testimonies to this effect cannot be brushed aside for want of such a document. This is more so in view of testimony of PW8 that he had constituted a team consisting of aforesaid people for the purpose of inspection.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 11 of 17The Sanction Ex PW8/A given by him further corroborates this version.
17. Prosecution has thus proved that the complainant, and other injured, are covered within the definition of "public servants" for the purpose of Section 186 IPC and Section 353 IPC.
18. Going further ahead, the evidence brought on record by the prosecution has established that accused, along with other co-accused, voluntarily obstructed the BSES officials from discharge of their functions. PW1 has consistently deposed how he, and his team members, were attacked by a mob which included the accused, to prevent them from conducting the inspection. PW2 also deposed that he was a member of the team that was constituted to conduct the inspection on the day of the alleged incident. Now, PW2 failed to identify the accused as part of the mob that attacked them, but described, in detail, how he and his team members were brutally attacked and beaten up. PW2 truthfully deposed that he cannot identify if accused was one of the members of the mob that had attacked the team. However, he supported prosecution version in as much as he still deposed that an attack was launched on his team by a mob consisting of villagers. It is a well settled position of law that the maxim "falsus in uno, falsus in omnibus" doesn't apply to Indian jurisprudence. That is to say, merely because PW2 did not support the version of prosecution to the extent of identifying the accused, his testimony cannot be discredited as a whole. He has described the attack that was suffered by them, in detail, and consistently Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 12 of 17 with testimony of PW1, and to reach the conclusion that he and his team were indeed so attacked , testimony of PW2 deserves due weightage.
19. PW4 and PW5 also testified that they were part of the team of BSES which was constituted for inspection on day of inspection , and that they were brutally attacked by a mob of 10- 12 people, the intention of which mob was to prevent such inspection. Neither of these witnesses could also identify the accused, but in all other respects, supported the version of prosecution. Their testimonies also lend more credibility to the case of prosecution.
20. Thus far, this Court has reached the conclusion that prosecution has successfully proved that a mob attacked a group of BSES officials, and obstructed them from discharge of their duties. Testimonies of prosecution witnesses has also established that to cause this obstruction, violence was resorted to by the mob. Interestingly, the tenor of defence taken by accused, as culled out from cross-examination of the above witnesses, is also not that no such attack took place, but that he was not part of the mob that attacked the BSES team. Deposition of DW1 to the effect that he and accused were working together at a site, when they were informed of the attack, also reinforces this conclusion. Then, if it can be established that accused was part of the mob, he can be held liable for the offence punishable both under Section 186 and 353 IPC. The fact that no injured got an MLC prepared does not detract from this, for all eye witnesses have deposed that injuries Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 13 of 17 were sustained by PW1 majorly, and then by other team officials during the attack, and the gravity of the attack cannot be nullified for the nature of injuries suffered by them was not serious enough, for them to require immediate medical attention.
21. In so far as identity of accused is concerned, only PW1 identified him as part of the mob that attacked the team of BSES. PW1 both wrote in his initial complaint, and testified on oath later, that he found out subsequent to the attack that one of the members of the mob was the accused, and that the latter also used to work in BSES. Testimony of PW1 inspires the confidence of this Court. He testified that he saw the accused in the mob, and later discovered his name, for the accused used to work in BSES before. While accused has himself admitted that he was previously employed with BSES, and has also suggested to PW1 that they were familiar with each other since much prior to the incident , his vague defence that he has been falsely implicated in the case does not hold water. Merely suggesting to PW1 that he has named the accused as part of the assailants that had carried out the attack on the day of the incident due to a prior enmity between them, without so much so as suggesting a probable cause of such enmity, takes his defence nowhere. Accused only suggested to PW1 that he has been named as part of the mob for he used to work with BSES earlier. Surely, this can be no reason for PW1 to falsely implicate anyone. When contrasted with such a vague defence taken, credibility of testimony of PW1 shines through even more, given his consistency. He had stated in the initial complaint itself how he found out that accused was one of the Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 14 of 17 members of the mob attacking the BSES team, and remained consistent in his testimony throughout. Accused could not elicit anything damaging from the witness, and his testimony is sufficient to prove that accused was one of the members of mob involved in the attack on the day of incident. Regard has to be had to the time honoured principle that evidence is to be weighed and not counted, encapsulated in Section 134 of Indian Evidence Act, 1872. Since testimony of PW1 is otherwise held to be cogent, truthful and credible, even if it does not find corroboration in the testimony of other team members of BSES qua the aspect of identification of accused, it stands established that accused was one of the members of the mob which attacked team of BSES on the given date.
22. Prosecution case cannot be thrown out merely because public witnesses have not been examined in the case at hand. It has been discussed at length how prosecution has both established that a mob assaulted BSES team, to prevent it from carrying out its duties, and how the accused was part of the mob. No motive has been shown for which accused will be falsely implicated by any of the witnesses, who had no previous enmity with each other. In view thereof, non-joining of public witnesses, which is certainly a reflection of shoddy investigation, cannot unduly benefit the accused. Similarly, though the investigation agency should have made proper efforts to trace the other members of the mob, effect of this lacuna cannot be to absolve the accused of his guilt, which otherwise stands established beyond reasonable doubt.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 15 of 1723. It stands established that accused, along with other people, attacked the team of BSES constituted for inspection in the village. Testimony of DW1 to the effect that he was working with accused at some other site at the time of attack is found woefully insufficient to establish the plea of alibi taken by accused. DW1 could not even specify what premises he was working in, with the accused, on the day of incident , and even after specific questions, could not bring on record even a single document to prove the defence set up by him. In fact, he admitted in a later portion of his testimony that accused told him of his previous enmity with PW1 right before his testimony was to be recorded in court. DW1 appears to be a tutored witness, and his deposition does not inspire confidence. DW1's testimony, thus, could not establish that accused was not present at the spot of incident, at the time thereof.
24. Lastly, because PW1 did not impute specific role to Accused by elaborating exactly what injuries were inflicted by accused to him, or his team members, does not take away from prosecution version. Section 34 IPC has been invoked in the present case, and it is not the remit of law that before liability could be fastened upon accused, prosecution had to establish exact act done by him. To convict the accused, it is sufficient that it has been established that he was a part of mob that had attacked BSES officials.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 16 of 1725. To conclude, prosecution has established-
(i) BSES officials , including complainant, were clothed with the protection given to "public servants" as on the day of incident, they had gone to conduct inspection of unauthorised. Usage at one house at village Kanganheri.
(ii) They were attacked by a mob, which had the intention to prevent them from discharging their duties, and were assaulted by it, as a result of which they could not discharge their functions.
(iii) Accused was a part of the said mob.
Thus, accused Yashpal S/o Hari Ram is convicted for the offence punishable under Section 186/353/34 IPC, all the ingredients of offence having been established.
Pronounced in open court on 20.03.2023 in presence of accused person.
This judgment contains 17 pages and each page has been signed by the undersigned. MEDHA Digitally signed by MEDHA ARYA ARYA Date: 2023.03.21 16:36:19 +0530 (MEDHA ARYA) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 20.03.2023.
Cr. Case No. 3887/2017 State vs. Yashpal Yadav Page 17 of 17