Delhi District Court
State vs . : Pankaj on 20 October, 2022
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTHWEST)
DWARKA COURTS: DELHI
State vs. : Pankaj
FIR No. : 405/16
U/sec : 186/353/332 IPC & 129/177 M.V. Act
P.S. : Dwarka South
1. CNR No. of the Case : DLSW020250962018
2. Date of commission of offence : 13.07.2016
3. Date of institution of the case : 23.06.2018
4. Name of the complainant : HC Gaurakh Nath
5. Name of accused, parentage &
Address : Panakj, S/o Sh. Roshan Lal Rana,
R/o Plot No. 23A, Gali No. 2, Hashi
Kalan, Nangli, Najafgarh, New Delhi.
6. Offence complained of : 186/353/332 IPC & 129/177 M V Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
9. Date of final order : 20.10.2022
FIR No. 405/16 State vs. Pankaj Page 1 of 16
Argued by: Mr. Manish Sidhawat, Ld. APP for the State
Mr. N P Singh and Mr.M P Singh, Ld. Counsel for
accused person.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 13.07.2016 at about 11:00 a.m. at Sector 4 and Sector 5 road, towards, Rajapuri, Dwarka, when the traffic officials were performing their duty, then one motorcycle bearing no. DL8SBJ7242 came after jumping the red light where the rider was without helmet. On giving indication to stop his bike, he had hit HC Golaknath while he was discharging his public function and caused injuries upon him. As such, it is alleged that the accused has committed the offence punishable under section 186, 353, 332 of the Indian Penal Code, 1860 (hereinafter, "IPC") and section 129/177 of Motor Vehicles Act, for which FIR no. 405/2016 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The Ld. Predecessor of this court took the cognizance against the accused and summons were issued to the accused.
FIR No. 405/16 State vs. Pankaj Page 2 of 16On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 186 of IPC was framed against the accused on 28.05.2019. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: ORAL EVIDENCE PW1 ASI Goraknath PW2 SI Jai Kishan PW3 Ct. Prem Prakash PW4 Ct. Narender PW5 HC Anuj PW6 ASI Suresh Chand DOCUMENTARY EVIDENCE Ex. PW1/A Statement of PW1, HC Gorakhnath Ex. PW1/B Site Plan Ex. PW1/C Arrest Memo Ex. PW2/A Copy of rukka Ex. PW2/B Seizure memo of motorcycle Ex. PW2/D Duty roster of the traffic official Ex. PW2/E Panchnama Ex. PW2/F Seizure memo of RC of motorcycle and DL of the accused Ex. PW2/X/1 Personal search memo ADMITTED DOCUMENTS Ex. P/A/1 Copy of FIR no. 405/2016 alongwith certificate under section 65B of Indian Evidence Act Ex. P/A/2 DD No. 15 A dated 13.07.2016 Ex. P/A/3 Mechanical Inspection report FIR No. 405/16 State vs. Pankaj Page 3 of 16 Ex. P/A/4 Complaint u/sec 195 CrPC Ex. P/A/5 MLC No. 10424/16
4. PW1, ASI Goraknath has deposed that on 13.07.2016, he was posted as Traffic Head Constable in Dwarka Circle and was performing the traffic duty alongwith ASI Suresh Chand, Ct. Narender and Ct. Anuj at the spot of the incident. He further deposed that one motorcycle bearing no. DL 8SBJ 7242 came from the side of sector 8 after jumping the red light and that the rider was without helmet and that he gave the indication to the accused to stop his bike but instead of stopping it hit him due to which he fell down and sustained injuries and the rider also fell down. Then PW1 was taken to the DDU hospital in the PCR van. In his cross examination, he has refuted the suggestion made by the defence counsel that he was hit by a car when it applied the emergency brake. He also refuted the suggestion that he misbehaved or demanded any money from the accused. He admitted that people were present at the spot, however, he did not inquire from the IO whether the statements of any independent witnesses were taken.
5. PW2, Retd. SI Jai Kishan, has deposed that on the alleged day, on receiving DD No. 15A, he alongwith Ct. Prem Prakash went to the spot and met the traffic officials namely, ASI Suresh, Ct. Narender and Ct.
Anuj, who produced the accused and his motorcycle to him. He further deposed that he was told that the accused had hit PW1 who was shifted to DDU hospital, from where he obtained MLC No. 10424/14 on which the doctor had opined the nature of injury as simple in nature. Thereafter, he prepared the rukka and handed over the same to Ct. Prem Prakash for registration of FIR and went to the PS after getting the FIR registered.
FIR No. 405/16 State vs. Pankaj Page 4 of 16Thereafter, he went to the spot and handed over the copy of FIR and rukka. He prepared the site plan at the instance of HC Goraknath. He also got done the mechanical inspection of the motorcycle. He has correctly identified the motorcycle and the accused. In his crossexamination, he has stated that no public witness was present at the spot and admitted that the where the accident took place was a busy route.
6. PW3, Ct. Prem Prakash, has deposed that on the alleged day, on receiving DD No. 15A, he alongwith PW2 went to the spot and met the traffic officials namely, ASI Suresh, Ct. Narender and Ct. Anuj who produced the accused and his motorcycle and told that the accused had hit PW1 who was shifted to the DDU hospital. He remained at the spot while the IO had left for the hospital and after returning to the spot, the IO recorded the statement of PW1 and prepared the rukka and handed over to him for registration of FIR. After getting the FIR registered, he returned to the spot and handed over the copy of the copy of FIR and rukka to the IO and then IO prepared the site plan. He has correctly identified the motorcycle and the accused. In his crossexamination, he has stated that no public witness was present at the spot and admitted that the where the accident took place was a busy route. He also stated that it is correct that the IO did not record the statement of the public witnesses in his presence.
7. PW4, Ct. Narender, has deposed that on the alleged day, he was posted as Traffic Head Constable. He alongwith ZO ASI Suresh Chand, ASI Goraknath and Ct. Anuj were performing their traffic duty near sector4/6 Dwarka traffic light. He deposed that one motorcycle bearing no.
FIR No. 405/16 State vs. Pankaj Page 5 of 16DL8SBJ7242 came from the side of sector 8 after jumping the red light and the rider was without helmet, on which PW1 gave him indication to stop his bike but instead of stopping it hit hi, from his bike and due to the impact, PW1 fell down and sustained injuries and the said rider also fell down who revealed his name as Pankaj. He deposed that PW1 was taken to the hospital. In his crossexamination, he has admitted that 5 to 7 public persons gathered at the spot and the IO did not record the statement of public persons in his presence. PW 5 HC Anuj has also deposed on the same line as that of PW4. In his crossexamination, he has stated that PW1 returned from the hospital in his presence and was accompanied by the IO. He also deposed that IO had not recorded the statement of any public witness despite the fact that place of the incident is a public place and many vechiles were passing through. PW 6 ASI Suresh Chand has also deposed on the same line as that of PW4 and PW5. In his crossexamination, he has stated that PW1 returned from the hospital in his presence and was accompanied by the IO. He also deposed that IO had not recorded the statement of any public witness despite the fact that place of the incident is a public place and many vehicles were passing from there.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
8. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 02.09.2022 without oath under section 281 read with 313 CrPC, wherein FIR No. 405/16 State vs. Pankaj Page 6 of 16 he stated that he is innocent and has falsely been implicated in the present case. He further stated that he does not want to lead defence evidence.
ARGUMENTS
9. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
10.Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel for the accused further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. Ld. Counsel for the accused has also relied upon the judgment of Hon'ble High Court of Delhi Jagdish Vs State 1987 Law Suit (Del) 86 & judgment of Hon'ble High Court of Andhra Pradesh in case of T Rama Rao Vs. Andhra Pradesh 1983 Law Suit (AP) 83. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
FIR No. 405/16 State vs. Pankaj Page 7 of 1611.In order to bring home the charge against the accused for the offence punishable under section 186, 353 and 332 of the Indian Penal Code and section 129/177 of Motor Vehicles Act, it becomes relevant to reproduce the said sections as under:
Section 186. 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.
Section 332. 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.
Section 353. 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.
Section 129. Wearing of protective headgear Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear 1[protective headgear conforming to the standards of Bureau of Indian Standards]:
Provided that the provision of this sections shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a FIR No. 405/16 State vs. Pankaj Page 8 of 16 public place, wearing a turban: Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation -- "Protective headgear" means a helmet which:
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and
(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
12.In order to prove its case, the prosecution is required to prove the following
(i) Firstly, the injured HC Gouraknath was a public servant and was discharging his public function at the time of incident;
(ii) Secondly, that the accused Pankaj had voluntarily obstructed complainant while he was discharging his public function;
(iii) Thirdly, the accused Pankaj had assaulted and used criminal force against complainant to deter him from discharging his public function;
(iv) Fourthly, in doing so the accused Pankaj inflicted an injury upon the complainant.
13.The import of both the sections of 186 and 353 of IPC is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in the case of Durgacharan Naik FIR No. 405/16 State vs. Pankaj Page 9 of 16 & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court as under
"It is true that most of the allegations in this 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 ss. 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."
14.It is important at the outset to understand certain preconditions attached with the prosecution under Section 186 IPC so as to give credence to further discussion. Section 195 (1) (a) of the Code of Criminal Procedure bars court to take cognizance of an offence punishable under Section 186 IPC unless a complaint has been made in writing by the public servant or by another public servant to whom he is subordinate. In Makardhwaj vs. State AIR 1954 Orissa 175, it has been held, "noncompliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC." Section 195 Cr.P.C bars cognizance of an offence punishable, inter alia, under Section 186 IPC except on a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate, however, it is FIR No. 405/16 State vs. Pankaj Page 10 of 16 clear that no sanction is required to prosecute the accused persons for offence punishable under Section 332 and Section 353, IPC.
15.Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
16.Adverting to the facts of the present case, it has not been disputed that the complainant Sh. Gaurakh Nath was a public servant being head constable of Delhi Police at the relevant time. The complaint, to prosecute the accused person under Section 195 Cr.PC is available on record which is Ex.P/A/4, which is admitted by the accused himself. Therefore, there is no legal bar to proceed further in the present case to decide the liabilities of the accused persons for an offence punishable under Section 186, IPC.
17. PW1, in his testimony has reiterated the story as it happened on the date of the incident that one motorcycle bearing no. DL 8SBJ 7242 where the rider was without helmet jumped the red light and when indication was given by PW1 to stop the bike, he had hit him with his bike due to which the PW1 sustained injuries and the rider also fell down. It has also come on record that the accused was riding the motorcycle without helmet as per the testimony of PW1. It is also corroborated by the testimonies of PW4,PW5 & PW6 It is pertinent to note that no material contradiction has come in his cross examination so as to doubt his testimony. It is also FIR No. 405/16 State vs. Pankaj Page 11 of 16 corroborated by the site plan which was prepared at the instance of PW1 which is Ex. PW1/B which has also been signed by PW1 and thus the same can be relied upon while relying upon the testimony of PW1. In any case, no question regarding the said document was asked from the witness when it was relied upon by the witness in his examination in chief. Therefore, the document is duly proved and it is admissible in evidence.
18.It is also pertinent to note that the Ld. Counsel has not been able to show any contradictions in the testimonies of the prosecution witnesses so as to disbelieve the testimony of PW1 and even if he would have pointed out, it is a settled law that some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contradictions cannot make the evidence unreliable. A reliance be placed upon the judgment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under :
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect FIR No. 405/16 State vs. Pankaj Page 12 of 16 of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "
19.It has been further stated by Ld. Defence Counsel that there is no public witness to prove the alleged incident. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. He is the best witness to describe the manner in which the offence was committed by the accused. Being the victim of the crime, he would be most keen to ensure that the real culprits do not go scot free. In Abdul Sayeed vs State FIR No. 405/16 State vs. Pankaj Page 13 of 16 of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
20.In the present case also, there is no major contradiction noted in the testimony of the PW1. His testimony is cogent and convincing. There is no reason to doubt his testimony. The MLC of the complainant is on the record. Perusal of the MLC Ex.P/A/5 would show that there was abrasion and swelling over lower lip and the doctor has opined the nature of injury as simple in nature. It corroborates the testimony of the complainant that the hurt was caused by the accused. There appears no reason as to why the complainant would falsely implicate innocent person while leaving the real culprit unpunished.
21.The accused during his examination under Section 313 Cr.P.C., has stated that he had not committed any offence. The burden to prove his defence was on the accused. The accused, however, has not led any evidence to prove his defence. It is settled position of law that statement made during examination under Section 313 Cr. PC is not evidence. It has not been made on oath and has not been tested on the touchstone of cross examination. The Hon'ble High Court of Delhi in V.S.Yadav vs Reena, FIR No. 405/16 State vs. Pankaj Page 14 of 16 Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
22.In the present case, for the aforesaid reason, the statement made by the accused person during his examination under Section 313 Cr.P.C. that he is being falsely implicated can't be considered as evidence. The statement has not been made on oath. On the other hand, there is statement of victim on record which has been made on oath. The law is settled that testimony of an eyewitness/victim should be believed unless there is specific reason on record to disbelieve him. In the present case, I do not find any reason to believe otherwise.
23.To recapitulate the discussion, the prosecution has been able to prove that the prosecution has been able to prove beyond reasonable doubt, that accused Sh. Pankaj had voluntarily obstructed the complainant, a public servant, in the discharge of his public function and caused hurt to the complainant being a public servant in the execution of his duty as such public servant. Thus, the prosecution has proved the ingredients of offence punishable under Section 186, 332 and 353 IPC against the accused beyond reasonable doubts. Also, it has been proved that the FIR No. 405/16 State vs. Pankaj Page 15 of 16 accused was riding the motorcycle without helmet punishable under section 129/177 of MV Act.
24.Hence, accused Sh. Pankaj is found guilty and he is accordingly convicted for the offences punishable under Section 186, 332 of IPC and section 129/177 of MV Act. As he has been convicted for major offence punishable under Section 332 IPC, there is no requirement of punishing him for minor offence punishable under Section 353, IPC.
25. Let the accused be heard on the quantum of sentence.
26. Copy of the judgment be given free of cost to the convict.
Announced in open court on 20.10.2022 in the presence of the accused.
Digitally signed by KRATIKA KRATIKA CHATURVEDI
CHATURVEDI Date: 2022.10.20
16:22:26 +0530
(Kratika Chaturvedi)
Metropolitan Magistrate04,
Dwarka, Delhi/20.10.2022
Note :- This judgment contains 16 pages and each page has been signed by me.
FIR No. 405/16 State vs. Pankaj Page 16 of 16