Delhi District Court
State vs . Gurcharan Singh on 24 January, 2011
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IN THE COURT OF SH. PURSHOTAM PATHAK : MM07:
DELHI
State VS. Gurcharan Singh
FIR No: 557/93
P. S. : Patel Nagar
U/s : 186/332/353/506 Indian Penal Code and
185,39/112 Motor Vehicle Act
JUDGMENT
Sl. No. of the case and : 284/III
Date of its institution : 29.03.94
Name of the complainant : Ct.Sukhbir
Date of Commission of offence : 25.08.1993
Name of the accuse : (1) Gurcharan Singh Arora
S/o Jagmohan Nath Arora,
R/0 G29, Bali Nagar, Delhi.
(2) Gaurav Arora ,
S/o Sh.G.S.Arora,
R/o G29, Bali Nagar, Delhi.
Offence complained of : Under section186/353/332/506
Indian Penal Code, and 185,39/112
Motor Vehicle Act
Plea of accused : Not guilty
Final Order : Convicted
FIR No.557/93 State Vs Gurcharan Singh & Ors.
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Date of Institution of Case : 29.03.94.
Judgment Reserved : 14.01.11
Date of Judgment : 24.01.2011
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The present case was registered against aforesaid two accused persons on the allegation that on 25.08.1993 Ct. Sukhbir and Constable Gopal Dutt (Homegaurd)were on patrolling duty at kutcha rasta near Kalindi college 31/5. At 2:00 am they stopped a car bearing number DL2CD5231 both the accused who were under influence of liquor came out of the car and Gaurav caught hold of Gopal Dutt and Gursharan Singh slapped him voluntarily causing hurt. Gaurav also snatched name plate from his uniform thus both obstructed Gopal Dutt from discharging his duty and also assaulted and used criminal force to deter him from performing his public duty and also threatened him with dire consequences .
2. After completing the formalities, the investigation was carried out in pursuance of which the chargesheet Under Section 186/ 332/353/506/34 Indian Penal Code and Under Section 185,39/112 Motor Vehicle Act was filed. The charge was framed against the accused Under Section 186 /332/353/506/34 FIR No.557/93 State Vs Gurcharan Singh & Ors. 3
Indian Penal Code and also under section 185,39/112 Motor Vehicle Act to which they pleaded not guilty and claimed trial. Later charge u/s 186 Indian Penal Code was quashed by Honble High Court.
3. Thereafter, in order to prove its case, the prosecution has examined 7 witnesses.
4. PW 1 Sukhbir deposed that on 25.08.1993 he alongwith Ct. Gopal Dutt (Home Guard) was on patrolling duty near Kalindi College 31/5, at about 2 am they stopped the Car bearing no.DL 2 CD 5231 which did not stopped at the place of signal but stopped 10 paces ahead. He stated Gaurav Arora present in the court , stepped down from the Car from driving seat and started abusing Ct.Gopal Dutt ( Ma Behen Ki) and also told who he was to stop the vehicle and how dare he stopped his vehicle. Thereafter he snatched the name place of Ct.Gopal Dutt and threatened him and also caught hold of the said Ct.Gopal by his Uniform and 23 buttons of his uniform were also broken. He stated that accused Gursharan also stepped down from the said car and slapped on the face of the Ct.Gopal and told him that he do not know how powerful they are and if at any other time their vehicle is stopped they would burn his uniform . He stated that he tried to save FIR No.557/93 State Vs Gurcharan Singh & Ors. 4
Ct.Gopal Dut and intervened, Gurcharan and Gaurav Arora pushed him, in the meanwhile SI Santosh Kumar also came at the spot and tried to pacify the accused persons but the accused persons misbehaved with him . He also stated that both accused persons were taken to hospital and their Ct.Gopal and accused persons were medically examined . He further stated that at the place of incident SI Santosh Kumr recorded his statement which is Ex.PW1/A . He stated that Ct. Babu Lal who came at the spot alongwith SI Santosh Kumar went to PS for registration of FIR alongwith rukka and after registration of FIR returned back at the spot. He stated the broken buttons and torn uniform of Ct.Gopal Dutt with his name plate was seized by the IO , Seizure memo is Ex.PW1/B and the maruti car was also seized. In his cross examination PW1 stated that he do not remember the DD number and also whether any departure entry was made or not . He stated that picket was in residential area but no one participated in the investigation. He stated altercation continued till the arrival of SI Santosh Kumar who came to the spot after 1015 minutes and Santosh Kumar and the constable are the eye witness to the occurrence. He stated SI Santosh Kumar separated them and the accused present in court obstructed in discharge of duty of FIR No.557/93 State Vs Gurcharan Singh & Ors. 5
Santosh Kumar but SI Santosh Kumar did not lodge any report He stated senior officers arrived at the spot and on their instructions he lodged the report. He denied the suggestion that Gopal Dutt has demanded some money for tea which resulted in altercation. . He stated writing work was carried at the place of occurrence and was done by Santosh Kumar on the Bonnet of Govt. Vehicle. He stated only rukka was prepared at the spot and the remaining work was carried out in Police Station. He stated accused alongwith Gopal Dutt were taken to hospital. He denied the suggestion that accused was harassed by Gopal Dutt.
5. PW2 ASI Kailash deposed that on 25.08.93 he was working as Duty officer , at about 3.05 am he received a rukka through Babu Lal sent by SI Santosh Kumar and on the basis of rukka he recorded FIR no. 557/93 which is ExPW2/A. In his cross examination he deposed that Constable who brought the rukka came at about 2.50 am and after registration of FIR he returned back and he was on patrolling duty, the rukka constable alongwith Ct.Gopal Dutt made the departure entry at 12 mid night. He stated he do not remember the DD number . He stated SI Santosh Kumar and Ct.Babu Lal also made departure entries. He stated there was no medical or anything else alongwith rukka. He FIR No.557/93 State Vs Gurcharan Singh & Ors. 6
denied the suggestion that all the writing work including the rukka was prepared in SI Santosh Kumar's room and the same was not sent from the spot.
6. PW 3 J.C.Vashist, deposed that he was working in DDU hospital as Record Clerk and had seen the E No. 62830, 62838 and 62837 , in respect of Gopal Dut , Gurcharan Arora and Gaurav Arora . The said MLC was prepared by Dr.Anil and he has now left the hospital and present whereabouts are not known. He stated he can identify the handwriting and signature of Dr.Anil and identified the MLC Ex.PW3 /A , B and C. In his cross examination he stated that Ex.PW3/C is medical of Ct.Gopal Dutt which was later on after cutting was made as Gaurav Arora and Gopal Dutt complainant has taken liquor although he was not under influence of the same .
7. PW4 HC Vijender deposed that on 24/25.08.93, he was posted as DD writer and at about 12.30 am he made a departure entry vide DD no. 70 B of Ct. Sukhbir and Ct. Gopal Dutt (DHG) and other staff members for night patrolling duty Which is Ex. PW 4/A and as per order dt. 21.12.2000, of DCP said DD no. was destroyed. In his cross examination he stated the duty of Home Guard is only to help Police Personnel in Police Station. He stated FIR No.557/93 State Vs Gurcharan Singh & Ors. 7
the entries are made by duty officer and he was assisting the duty officer.
8. PW 5, Gopal Dutt Joshi, deposed that on 25.08.93, he was posted as Ct. Home Guard at Police Station Patel Nagar and on that day he along with Ct. Sukhbir was on patrolling duty for checking the vehicles in front of 31/5, East Patel Nagar. He stated that vehicle no. DL 2C 5231 was signaled to stop which was being driven by Gaurav Arora. He stated that Ct. Sukhbir was also present at the spot. Driver Gaurav Arora and Gurcharan Singh were found under influence of liquor. He correctly verified the accused persons present in the Court. He stated when he made inquiry with both person, they asked him (who are you), and in which capacity you are checking the vehicle. He stated both the accused came out of the car and accused Gaurav Arora caught hold of his collor and accused Gursharan slapped him on his face. They both were using abusive language. He stated he had told the accused persons that he is Ct. of Home Guard. He stated that he was in uniform and Ct. Sukhbir was also in uniform and it is their duty to check the vehicles in night. He stated that both of the accused threatened him to face dire consequences. He stated that accused Gaurav had snatched his name plate from his uniform FIR No.557/93 State Vs Gurcharan Singh & Ors. 8
and due to scuffling 3 buttons of his shirt were broken. He stated in the mean time SI Santosh Kumar came at the spot who was also on patrolling duty. Both the accused were arrested and taken to police station. He stated that his medical examination was conducted at RML Hospital. In further cross examination he deposed that his statement and the statement of Ct. Sukhbir was recorded in police station by SI Santosh Kumar. He stated that he visited the hospital at 34 am in the night and remained there for 15 to 20 minutes. He stated he went to hospital in a Govt. Vehicle . He stated instruction to check the vehicle were given orally. He stated that they did not chased the car and denied the suggestion that on giving abuses accused returned back and he started inquiring as to why they have abused them. He stated before the arrival of checking officer Santosh Kumar, the incident has taken place. He stated he came to know that the accused are under influence of liquor when the car came back at the spot. He stated he have made note of important particulars from the police file. In his further cross examination, he deposed that they all went to police station in vehicle belonging to accused.
9. PW 6 Santosh Kumar deposed that on 25.08.1993, He was on patrolling duty and at about 2.05 am, when he reached near FIR No.557/93 State Vs Gurcharan Singh & Ors. 9
31/5 East Patel Nagar, he found that Ct. Sukhbir, Home Guard Ct. Gopal Dutt were scuffling with accused Gaurav Arora and Gurcharan. He stated that he had separated all the persons . He recorded the statement of Ct.Sukhbir and got conducted the medical examination of injured Gopal Dutt and accused Gaurav and seized the torn shirt, name plate and three buttons. Accused Gaurav Arora was driving the vehicle under influence of liquor and could not produce the RC of offending vehicle and the kallandra Under Section 185 Motor Vehicle Act and Section 39/192 Motor Vehicle Act were prepared. He recorded statement of all the prosecution witnesses. He collected the complaint U/S 195 Cr.P.C. which is Ex.PW6/H. In his further cross examination he stated Ct. Babulal and Sukhbir were accompanying him when he was on patrolling duty and statement of Ct.Sukhbir was recorded on the spot. He stated no other public persons except Chowkidar Baldev was present at the spot. Documents were prepared under the street light at the spot. He denied the suggestion that he reached the spot after the incident.
10. PW7 deposed that on 25.08.93 he was working as SHO and the present case was registered against the accused Guracharan Arora and Gaurav Arora and investigation was marked to IO FIR No.557/93 State Vs Gurcharan Singh & Ors. 10
Santosh Kumar and he gave a complaint U/S 195 Cr.P.C. In his cross examination he stated that complaint was filed after the registration of case on 02.10.93. He stated he did not give in handwriting a specific duty to the patrolling staff at night and voluntarily said that duty was mentioned in Duty Roaster and the instructions were given to night staff that they will get the vehicle slow down to check the passengers.
11. After recording the evidence of this witness, the prosecution evidence was closed. The accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidence were put to them where they denied the allegations raised against them and they choose to lead defence evidence.
12. DW1 Smt. Ram Arora deposed that about 17 years ago she alongwith her husband and son were returning from a function in Delhi . Their vehicle was stopped and when they came to know that person asking to stop are police official they stopped the vehicle at some distance. They asked to get out of the vehicle . She stated that the police officials were heavily drunked. One of the official asked for money from them later another police vehicle reached at the spot and they joined the police officials and they asked them to sit in their vehicle. She denied the suggestion that FIR No.557/93 State Vs Gurcharan Singh & Ors. 11
she was not present on the date of incident with the accused persons. She stated no complaint was made to any authority with respect to misbehavior of police officials.
13. I have heard the Ld. APP for State and counsel for accused and perused the record.
14. It is argued by the Ld. APP for State that the case has been proved against the accused persons and there are no contradictions and dents in the testimony of witnesses and in view of the same there is no impediment in convicting the accused persons.
15. On the other hand it has been argued by the defence counsel that PW Santosh Kumar is not the eye witness and he came at the spot after the incident. PW Sukhdev the chowkidar, the only public witness was not examined . There are contradictions in versions of PW regarding writing of statement whether statement was recorded at the spot or at the police station. He also argued that MLC Ex.PW3/C was initially of Gopal and later on after cutting, the name of Gaurav Arora was put on it. He argued Section 332 is not made out as hurt is not proved and Section 353 is also not made out as it came into the statement of one of the witnesses that Home Guard Gopal Dutt was supposed to be doing his duty in FIR No.557/93 State Vs Gurcharan Singh & Ors. 12
police station . He further argued that even 506 is not made out as offence of criminal intimidation is not proved.
16. I have heard submissions of both the Ld.Counsels And Ld.APP for State and perused the records of the case.
17. The accused persons are charged with four different kinds of offences. I will deal with all of them one by one.
18. Firstly, I come to the offence u/s 332 Indian Penal Code . Section 332 Indian Penal Code read as under :
Regarding the offence u/s 332 Indian Penal Code, it says that; Voluntarily causing hurt to deter public servant from his duty 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.
19. Secondly, I come to the offence u/s 353 Indian Penal Code.
Section 353 Indian Penal Code read as under :
FIR No.557/93 State Vs Gurcharan Singh & Ors.13
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 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.
20. Hence, for both the offences U/S 332 and 353 Indian Penal Code it is important to make out that hurt U/S 332 and assault and criminal force U/S 353 was to deter public servant from discharge of his public duty . Here in this case Ld counsel for accused relied on Statement of PW 3 J.C.Vashist that duty of home guard is only to help police personnel in police station. On the other hand testimonies of witnesses and documents on record proved the case of prosecution, PW Sukhbir and PW Gopal Dutt has stated that at the time of incident they were on patrolling duty . PW Kailash the duty officer has deposed that constable Gopal Dutt (HG) left the police station after making departure entry .PW4 the DD writer also stated that he made a departure FIR No.557/93 State Vs Gurcharan Singh & Ors. 14
entry vide DD No.70 B of constable Sukhbir and constable Gopal Dutt which is EXPW4/A. PW7 SHO Patel Nagar deposed that he did not give any specific duty to patrolling staff at night but instructions were given to night staff that they will get the vehicle slow down to check passengers. Even in complaint U/S 195 Cr.P.C. EXPW6/H it is mentioned that constable Sukhbir and constable Gopal Dutt were deployed in night checking duty at kutcha rasta east Patel Nagar . Thus it is clearly proved that Sukhbir and Gopal Dutt at the time of offence were discharging public duty.
21. Now we come to Section 332 Indian Penal Code. Aggrieved was medically examined but it is not always possible to make out hurt in medical examination. Although it is not supported by medical examination report of victim, it can be inferred that act of accused persons attacking Gopal Dutt in furtherance of there common intention, catching hold and slapping must have caused voluntarily hurt though not visible. The guilt of accused persons is established by testimony of witnesses. PW5 Gopal Dutt the aggrieved stated that accused Gaurav caught hold of his collar and Gurcharan slapped on face. PW1 Ct.Sukhbir and PW6 Ct.Santosh the eye witnesses has corroborated the deposition of PW5 . PW1 stated Gaurav Arora caught hold of Gopal Dutt and accused FIR No.557/93 State Vs Gurcharan Singh & Ors. 15
Gurcharan slapped on the face of Gopal Dutt. PW Santosh also stated in same line that when he reached at the spot Gopal Dutt was scuffling with Gaurav and Gursharan .
22. The other offence for which accused persons have been charged is section 353 Indian Penal Code . All the witnesses in there testimony has supported the case of prosecution. PW1 Sukhbir has deposed that when he along with Gopal Dutt was on patrolling duty, while performing there duty they stopped a car and when they were making inquiry accused Gaurav caught hold of Gopal Dutt and accused Gursharan slapped him and when he intervened he was also pushed by them PW5 Gopal Dutt stated that while they were on patrolling duty and checking vehicles they stopped a car and when inquired accused Gaurav caught hold of his collar and accused Gursharan slapped him. PW Santosh Kumar also supported the testimonies of other witnesses and stated when he reached at the spot he saw Gopal Dutt was scuffling with accused Gaurav and Gurcharan. Thus while Gopal Dutt and Sukhbir were performing there official duties both the accused persons started abusing Gopal Dutt and by using criminal force and assault beat him and pushed Sukhbir therefore offence under section 353 Indian Penal Code is made out . FIR No.557/93 State Vs Gurcharan Singh & Ors. 16
23. Now we come to offence U/S 506 Indian Penal Code. Section 506 Indian Penal Code which reads as under; Punishment for criminal intimidationWhoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Criminal intimidation is defined in section 503 Indian Penal Code as under;
Criminal intimidationWhoever threatens another with any injury to his person, reputation or property, or to the person or reputation or any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
24. As laid down in section ,the threat in offence of criminal intimidation must be directed against person reputation or property and secondly the threat must be made with intent either to cause alarm or to cause victim to do an act which he is not legally bound to do or to abstain from an act he is entitled to perform. Here according to deposition of witnesses as PW 1 stated FIR No.557/93 State Vs Gurcharan Singh & Ors. 17
Gaurav stepped down from the car and started abusing constable Gopal 'MAA BEHEN KI' and also said Gopal that who he was and how dare he stopped his vehicle and Gurcharan said that he do not know how powerful they are and if at any time their vehicle is stopped they will burn his uniform. PW5 Gopal Dutt stated when he made inquiry from accused persons they asked 'who are you ,and in which capacity you are checking the vehicle 'both used abusive language and when he told them he is home guard both the accused threatened him for dire consequences. Here the threat was directed by both accused towards person and reputation of constable Gopal and causing him to abstain from an act he was entitled to perform . Thus offence U/S 506 Indian Penal Code are made out .
25. As far as offence U/S185 and U/S 39/112 of Motor vehicle act is concerned for proving this offence deposition of PW6 Santosh Kumar is important, he stated that accused Gaurav Arora was driving the vehicle under influence of liquor and could not produce the R.C. of offending vehicle . On perusal of medical examination report it is clear he was under the influence of liquor. Thus offence U/S 185 and U/S 39,112 of Motor Vehicle Act is made out.
26. For contradictions in versions of witnesses regarding FIR No.557/93 State Vs Gurcharan Singh & Ors. 18
recording of statement at different places it can be said it is a minor discrepancy which may be possible after a gap of time .
27. Ld Counsel has also brought into notice of court the MLC of accused Gaurav Arora on which there is a cutting and he has tried to support his case by statement of PW JC.Vashisht who has stated that EXPW3/C is medical examination report of Gopal Dutt which was later on after cutting made of Gaurav Arora. Here we cannot rely completely on this witness as presence of this witness at the time of medical examination is not proved and he appeared in court only to identify the writing of Dr Anil who prepared the MLC of both the accused persons and the aggrieved.
28. The defence of non joining of public witnesses is also not worthy of credit. This is the defence taken by all the accused in similar nature of offences which occurs in pubic places. But one cannot be oblivious of the fact that there is a glaring prevalence of the fact in the society that independent witness are not forthcoming to assist the investigation agency for various reasons such as terror by the accused, danger to their life and property on behalf of the accused, harassment at the investigation stage, repeated adjournments in the Courts. Therefore, merely because the prosecution has failed to examine so called independent FIR No.557/93 State Vs Gurcharan Singh & Ors. 19
witnesses would be no ground to discard the evidence of prosecution.
29. In this case, incident is of 2 am late night and at that time presence of public witness at the place of incident is unquestionable. As far as the only public witness Baldev Chowkidar is concerned, summons and warrant were issued on many occasions at both his addresses but lastly his presence could not be ensured.
30. On the basis of aforesaid discussions, the accused persons are convicted for the offence Under Section 186/332/353/506 Indian Penal Code and Under Section 185/39/112 Motor Vehicle Act.
Announced in the Open Court ( Purshotam Pathak) today on 24th January 2011 MM07, Central, Delhi FIR No.557/93 State Vs Gurcharan Singh & Ors. 20 FIR No. 557/93 PS Patel Nagar 24.01.2011 Present : Ld.APP for State.
Both accused with counsel .
` Vide my separate Judgment announced in the open court , both the accused persons are convicted for the offence Under Section 186/332/353/506 Indian Penal Code and 185/39/112 Motor Vehicle Act.
Let the accused be heard on the point of sentence 27.01.2011.
( Purshotam Pathak) MM07/Central/Delhi/ 24.01.2011 FIR No.557/93 State Vs Gurcharan Singh & Ors. 21 State VS. Gurcharan Singh FIR No: 557/93 P. S. : Patel Nagar U/s : 186/332/353/506 Indian Penal Code and 185/39/112 Motor Vehicle Act ORDER ON SENTENCE Arguments heard on the point of sentence. Convicts stated that there is no record of previous conviction against them .
On the other hand Ld.APP for States prays for maximum sentence to the convicts . After hearing both the parties and taking into consideration the facts and circumstances that accused has been facing the agony of trial for the last 17 years , I am of the considered opinion that a lenient stand be taken in sentencing the convicts.
Accordingly, accused are sentenced to pay a fine each in the sum of Rs.1,000/ for the offence U/S 332 Indian Penal Code in default of fine Simple Imprisonment for 10 days, Rs.1500/ for the offence U/S 353 Indian Penal Code in default of fine Simple Imprisonment for 15 days, Rs.1,000/ for the offence U/S 506 Indian Penal Codein default of fine Simple Imprisonment for 10 days , Rs.1,000/ for the offecne U/S 185 MV Act in default of fine Simple Imprisonment for 10 days and Rs. 100/ for the offence U/S 39/192 Motor Vehicle Act in default of fine FIR No.557/93 State Vs Gurcharan Singh & Ors. 22 Simple Imprisonment for 1 days. Fine paid.
The case property be disposed off as per rules. Bail bonds of the accused persons are canceled. Sureties are discharged.
Original documents, if any be returned to the person entitled to after cancellation of endorsement thereupon.
File be consigned to record room.
Announced in the Open Court ( Purshotam Pathak) today on 27th January 2011 MM07, Central, Delhi FIR No.557/93 State Vs Gurcharan Singh & Ors. 23 FIR No.557/93 State Vs Gurcharan Singh & Ors. 24
On the basis of aforesaid discussions, the accused persons are convicted for the offence u/s 186/353/506 Indian Penal Code and are acquitted of the offence u/s 3 of Prevention of Damages to Public Property Act 1984 and u/s 332 Indian Penal Code. 332 it ........page12.some hurt.here the
1. 2. For offence u/s 506 ..................................................................................
3.
4.
5.
6.
Announced in the open court (Samar Vishal)
th
on 26 November, 2010 Metropolitan
Magistrate05,
South East, New Delhi
FIR No.557/93 State Vs Gurcharan Singh & Ors.