Delhi District Court
State vs . Rajeev Malhotra on 21 June, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05, SOUTH
EAST DISTRICT, NEW DELHI
STATE VS. Rajeev Malhotra
FIR NO: 424/00
P. S. Ambedkar Nagar
U/s 186/353/332 IPC
Unique ID no. 02403R0462702003
JUDGMENT
Sl. No. of the case : 672/2 (5.10.2010) Date of its institution : 1.10.2001 Name of the complainant : Sh. U.S. Chauhan Date of Commission of offence : 30.10.2000 Name of the accused : Sh. Rajeev Malhotra Offence complained of : Section 186/353/332 IPC Plea of accused : Not guilty Case reserved for orders : 1.6.2012 Date of judgment : 21062012 Final Order : ACQUITTED BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Rajeev Malhotra upon the police report filed by P.S. Ambedkar Nagar u/s 186/353/332 IPC.
2. As per the prosecution's case, on 30.10.2000 at about 3 pm at Near 37/C, Sainik Farm accused voluntarily obstructed a Jr. Engineer Sh. U.S. Chauhan, a public servant in discharge of his public function and also voluntarily pushed him and physically manhandled him and gave a punch on his chest with intent to prevent him from discharging his duty and thereby committed an offence punishable u/s 186/332/353 IPC.
3. In order to prove its case, prosecution has examined eight witnesses.
4. PW 1 is ASI Shamsher Singh who was the duty officeron the date of incident and proved the FIR as Ex.PW1/A upon a rukka Ex.PW1/B.
5. PW 1A is Sh. S.B. Bhardwaj who deposed that on 30.10.2000 he was posted as AE, Building South Zone, Green Park, New Delhi and received a telephonic message from his JE Sh. U.S. Chauhan to the effect that somebody has misbehaved with him and caused obstructions while he was discharging his duties in demolition programme at Sainik Farm. He forwarded a complaint Ex.PW1/A handed over to him by Sh. U.S. Chauhan for necessary action.
6. PW 2 Sh. U.S. Chauhan and PW 3 Sh. Rakesh deposed on the same lines to the effect that on 30.10.2000 they alongwith his 67 staff members and 1012 police officials from PP Sainik Farm had gone to the premises no. 37C, Sainik Farm for demolition of unauthorized construction. When they had just completed the demolition of half of the portion of construction, accused started misbehaving with them and assaulted Sh. U.S. Chauhan and punched him at his chest and also pushed him several times while abusing him. He had also snatched his private camera from his hand. When the police officials tried to apprehend the accused, he slipped away by his car from the spot. Sh. U.S. Chauhan proved his complaint as Ex.PW1/A.
7. PW 4 is Sh. S.D. Sharma who proved his complaint u/s 195 Cr.PC as Ex.PW4/A.
8. PW 5 is SI Man Mohan is the investigation officer of this case who deposed that on 30.10.2000 he was posted at PS Ambedkar Nagar and was working as incharge police post Sainik Farm. On that day, a complaint Ex.PW1/A was made on the basis of which he prepared rukka Ex.PW5/A and got the case registered through Ct. Jai Kishan. He proved site plan as Ex.PW5/B and after completion of investigation filed the charge sheet in this case.
9. PW 6 Ct. Pradeep Kumar deposed that on 30.10.2000 he was posted at police post Sainik Farm where demolition work was going on. When the work was going on, Rajiv Malhotra (correctly identified by this witness) misbehaved with JE Sh. U.S. Chauhan and gave him fist blow.
10. PW 7 Ct. Jai Kishan deposed on 30.10.2000 he was posted at police post Sainik Farm where demolition work was going on. When the work was going on, Rajiv Malhotra (correctly identified by this witness) quarreled with JE Sh. U.S. Chauhan and gave him fist blow.
11. PW 8 is HC Joginder Pal who deposed that on 30.10.2000 he was posted at PS Ambedkar Nagar and he alongwith Ct. Anup, Ct. Satbir, Ct. Pradeep, Ct. Jai Kishan, SI Man Mohan and MCD staff for demolition work and reached premises no. 37E, Sainik Farm. While the demolition work was started, accused had quarreled with JE Sh. U.S. Chauhan and also abused him. Accused was apprehended. Higher official of MCD were summoned, police case was registered.
12. This is the overall evidence on behalf of the prosecution.
13. After the prosecution's evidence was closed, accused was examined u/s 313 Cr.PC wherein all incriminating evidence were put to the accused which he denied and answered that he was constructing a building in Sainik Farm. He used to pay Rs. 12,000/ to SI Manmohan and Rs.70,000/ to U.S. Chauhan. They again demanded him money on the pretext that Diwali has come and they have to give some money to the Commissioner of MCD. On 30.10.2000, these persons came at the place of incident and pulled the collumn of the building due to which the building collapsed. Thereafter, heated arguments ensued between them and he said to them that they took bribe and despite that they pulled the collumn of his building. Besides heated arguments, he had not beaten or assaulted them because he was alone at that time and Sh. U.S. Chauhan was with his whole team. Then he went to Hon'ble High Court of Delhi. Hon'ble High Court of Delhi had punished Mr. Chauhan and Mr. R.S. Sherawat with fine of Rs.25,000/ each and imprisonment of one month. They have filed a review petition in Hon'ble High Court of Delhi which was dismissed and the matter is pending in Hon'ble Supreme Court of India.
14. I have heard the Ld. APP for State and counsel for accused persons and perused the records of the case.
15. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved by the testimony of the its witnesses and there is no impediment in convicting the accused.
16. On the other hand, it has been argued by the accused in person that he is falsely implicated in this case, there is no evidence that the complainant was on duty on the date of incident and that neither any public person made a witness.
17. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
18. The case of the prosecution is that the accused Rajeev Malhotra on 30.10.2000 at 37/C, Sainik Farm obstructed Junior Engineer Sh. U.S. Chauhan who was performing his public duties. He also manhandled him and punched him on his chest with the intention to prevent him from discharging his duty. The accused is charged with offence u/s 186/332/353 IPC. Now as discussed above, in order to prove its case, prosecution's main witnesses are Sh. U.S. Chauhan, Rakesh Kumar, SI Manmohan, Ct. Jai Kishan, HC Joginder Pal and Ct. Pradeep. The other witnesses are formal in nature.
19. As discussed above the combined testimony of Sh. U.S. Chauhan and Rakesh Kumar Beldar goes on to show that on the date of incident when half of the demolition work was completed, the accused started misbehaving with MCD team. The accused assaulted and punched Sh. U.S. Chauhan. The accused also snatched his private camera from his hand. When police official tried to apprehend him, he slipped away from the spot through his car. Except the testimony of the aforesaid two witnesses from MCD, the other witnesses of MCD examined on behalf of prosecution namely Sh. S.B. Bhardwaj are formal witness because as per their testimony, they were not present at the spot at the time of incident and he was told by Sh. U.S. Chauhan regarding this incident. Sh. S.B. Bhardwaj was in office and was telephonically informed about the incident. PW 4 Sh. S.D. Sharma, Assistant Engineer has also admitted in his cross examination that he do not have any personal knowledge regarding the facts of this case nor he can tell who were the officers of MCD who were in demolition work. He had simply made his complaint u/s 195 Cr.PC which is a formality of Criminal Procedure Code. The other eye witnesses are SI Manmohan, Ct. Jai Kishan, HC Joginder Pal and Ct. Pradeep. There is not much in their testimonies regarding the incident. SI Manmohan who is the investigating office of this case has stated in his cross examination that in his presence some quarrel took place but with the help of the staff, the persons were separated. He did not noticed any injury on any person. The accused was arrested on the spot. He had not seen or seized any camera. The witness Ct. Pradeep Kumar has stated that the accused misbehaved with Sh. U.S. Chauhan and gave him fist blow. However, PW 8 HC Joginder Pal who is also the eye witness states that the accused has quarreled with the complainant and had abused him. He does not states anything that the accused has punched the complainant.
20. Regarding the incident, the accused has given an explanation that he was constructing a building in Sainik Farm. He used to pay Rs.12,000/ to SI Manmohan and Rs.70,000/ to U.S. Chauhan. They again demanded him money on the pretext that Diwali has come and they have to give some money to the Commissioner of MCD. On 30.10.2000, these persons came at the place of incident and pulled the collumn of the building due to which the building collapsed. Thereafter, heated arguments ensued between them and he said to them that they took bribe and despite that they pulled the collumn of his building. Besides heated arguments, he had not beaten or assaulted them because he was alone at that time and Sh. U.S. Chauhan was with his whole team. Then he went to Hon'ble High Court of Delhi. Hon'ble High Court of Delhi had punished Mr. Chauhan and Mr. R.S. Sherawat with fine of Rs.25,000/ each and imprisonment of one month. They have filed a review petition in Hon'ble High Court of Delhi which was dismissed and the matter is pending in Hon'ble Supreme Court of India. The answers given by the accused in his examination u/s 313 Cr.PC is to afford him an opportunity to personally explain any circumstances appearing in evidence against him. The answer given by the accused while under examination under the provisions of 313 Cr.PC may be taken into consideration alongwith the prosecution's evidence in deciding the case. The statement of an accused recorded u/s 313 Cr.PC are among the most important matters to be considered at a trial. Such evidence must be treated like any other piece of evidence coming from the mouth of a witness, and matters in favour of the accused must be viewed with such defence and given such weight as matters which tell against him. Nay, more, because of the presumption of innocence in his favour. Even when he is not in a position to prove the truth of his story, his version should be accepted. If it is reasonable and accords with probabilities, unless the prosecution can prove beyond reasonable doubt that it is true. It means that although the answers given by the accused u/s 313 Cr.PC may not be evidence in the strict sense but has to be considered vis a vis prosecution evidence to explain his position. As stated above, the accused has explained that he was known to the complainant and investigating officer of this case earlier and they used to take bribe from him for the construction of his building and when further bribe was not paid, this demolition programme was arranged. He has also argued that the complainant has been convicted for filing false affidavit in Hon'ble High Court of Delhi and is not a reliable witness. He is also an interested witness because he had the motive to harass the accused in view of their previous relations.
21. Now in the backdrop of the explanation of the accused, the prosecution's evidence has to be considered. It is well settled law that the interested evidence is not necessarily a false evidence. What the law required is that where the witnesses are interested, the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The Hon'ble Supreme Court in Lallu Manjhi Vs. State of Jharkhand stated the issue of sole witness by classifying the evidence of a solitary witness into three categories, namely, (a) wholly reliable, (b) wholly unreliable, (c) neither wholly reliable nor wholly unreliable. It was said that in the first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial, before acting upon the testimony of a single witness.
22. Now in the present case, it is clear that the complainant falls in the category of partially reliable and partially unreliable witness. The reason is that he was involved in the demolition programme and was interested in its outcome. There are other litigations between complainant and the accused and as per the argument of accused, this complainant has been convicted for perjury for filing false affidavit in Hon'ble High Court of Delhi. Therefore, it is expedient that the testimony of the complainant should be taken with care and should be corroborated by some independent evidence. The complainant as PW 2 and Rakesh Kumar Beldar PW 3 are witnesses from MCD. Complainant has deposed that on the date of incident he was demolishing the building of the accused when he suddenly assaulted him and punched him on his chest and also abused him. To corroborate his testimony, is the testimony of PW 3 Rakesh Kumar Beldar. Rakesh Kumar Beldar was the member of the same team and probably subordinate to the complainant and therefore, it was not expected of him to give an independent evidence of the incident. This is also clear from the testimony given by him which is exactly similar to that of the complainant and it appears that he has given a parrot like statement and therefore, the corroboration from his testimony cannot be considered independent corroboration.
23. At the time of incident, the demolition programme was carried out with the help of police. There were many police personnels alongwith the MCD staff. The accused has argued that he was alone at that time and on the other side there were many MCD and police personnels. There were public persons and also media persons present at the spot and therefore, there was no question of his assaulting the complainant. SI Manmohan who was the investigating officer of this case and was present at the time of incident deposed that in his presence only quarrel took place but they were separated with the help of staff. He has not noted any injury upon any person. Similarly, Ct. Pradeep who was also present on the spot has not said anything that the accused has pushed the complainant or he has punched him on his chest and he has only said that the accused has misbehaved with JE Sh. U.S. Chauhan and gave him fist blow. As per his testimony, there were around 15 persons alongwith the MCD staff and there were 45 police personnels also present. Ct. Jai Kishan was also present at the spot and as per his deposition the accused only quarreled with JE and has not said anything about the allegations made by the complainant. PW 8 HC Joginder Singh was also present on the spot and as per his testimony, the accused abused and quarreled with the complainant but in his testimony there is nothing that the complainant was assaulted or obstructed in performing his duty. Therefore, the allegations of assault are not corroborated by any kind of testimony from the witness of police department who were present at the spot.
24. The complainant says that he was pushed several times, abused and punched and assaulted by the accused. Even then he has not bothered to go for his medical examination. He has admitted in his testimony that his medical examination was not conducted. In such cases of assault even when there is slight injury and the person wants to go for a criminal case, it is always advisable that he should get his medical examination conducted as a proof of the assault done upon him. Non examination of the complainant by medical expert goes against the case of the prosecution and an adverse inference can be taken regarding the assault. Not only this, there are public persons and media persons at the spot. The independent public persons at the spot were neither examined or interrogated by the investigating officer. PW 3 Rakesh Kumar admitted the presence of media officers on the spot. PW 7 Ct. Jai Kishan admitted that there were 2030 public persons at the spot but none of them has been interrogated or examined on behalf of the prosecution, leading to adverse inference against the prosecution. In State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125 Hon'ble Supreme Court held:
"The failure of the prosecution to examine independent witness though available is fatal for their case".
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that: Where the IO has failed to even note down the names and addresses of the persons, who have refused to join a public witnesses, couple with the fact that no action was taken against them, the case is rendered doubtful.
Further illustration (g) appended to Section 114 of the Indian Evidence Act reads thus:
"The court may presume
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who holds its."
25. Thus on the basis of this provision of law, an adverse inference, therefore, could be drawn for nonexamination of public witnesses. Now this nonexamination of public witnesses has to be read in the background of the explanation given by the accused in his examination u/s 313 Cr.PC.
24. Apart from all these lacunae in the investigation, there are contradictions in the testimony of the witnesses. Some of these contradictions are major. PW 2 Sh. U.S. Chauhan has deposed in his cross examination that Sh. S.B. Bhardwaj, the Assistant Engineer was also present to whom he has made this complaint. On the contrary, Sh. S.B. Bhardwaj has deposed that he was not present at the spot and was telephonically informed by the complainant about the incident. The complainant has deposed about the camera which was snatched by the complainant and through on the ground but the other witnesses have not said anything about this camera, the investigating officer has not seized the camera. The investigating officer has even not deposed anything about this camera.
25. The investigation also seems to be biased in this case. There are allegations by the accused upon SI Manmohan that he has taken money from the accused for constructing the building. The investigating officer was himself present at the spot at the time of incident and incident occurred in his presence and therefore, he should not have been the investigating officer of this case and some independent police officials, not present at the spot should have been the investigating officer and should have done the investigation in the present case so that the fair investigation could have been done in this case.
25. Now coming to the offence with which the accused is charged. The accused is charged with offence u/s 186/332/353 IPC. Section 186 IPC punishes the offence of voluntarily obstructing a public servant in the discharge of his public duty. Section 332 IPC punishes the offence of voluntarily causing hurt to the public servant to deter him from discharging his public duties. Section 353 IPC punishes the assault of criminal force used upon a public servant to deter him from discharging his public duty.
26. Now to prove all these offences, the first thing which the prosecution has to prove is that the complainant Sh. U.S. Chuahn was performing his public duty. It can be presumed that the demolition work of MCD is a public duty but criminal law does not allow the facts to be settled on the basis of presumptions. If the complainant Sh. U.S. Chauhan was performing a public duty then the prosecution should have produced evidence to that effect. Whenever a building has to be demolished which is unauthorizedly constructed, a notice has to be given to the person. No such notice has been proved on record. There is no order of demolition by any officer of the MCD which is required in view of section Section 343 of Delhi Municipal Corporation Act, 1957. There are no documentary evidence of any other proceeding whereby the present building decided to be demolished by the MCD. Apart from this, even if the act of the accused is considered then this act has to be seen in the backdrop of the explanation given by him. His building was being demolished by MCD alongwith the assistance of the police and MCD personnels. Accused said that MCD personnels used to take bribe from him and when further demand was not met, the building was demolished. There is no evidence of the fact that by the act of the accused the demolition work has to be permanently stopped or the building was not to be further demolished. The Junior Engineer would have been supervising the demolition of the building and he would not himself be directly engaged in the demolition of the building. The act of the accused even if accepted as prima facie true as came on record from the evidence of the complainant then, it appears to be a case of simple assault upon the complainant and there does not seems to be any intention on the part of the accused to deter the complainant from creating obstruction or doing any kind of act which could deter the complainant or his team or the police from going on with the demolition work. The reason being simple that the capacity of the act of punching or abusing by the accused was not sufficient to deter the complainant from discharging his public duties, more so when he was accompanied by MCD and there was police assistance and the accused was alone at that time. Therefore, even if the prosecution story is considered to be correct for a moment, even then the act done by the accused does not amount to an offence of voluntarily obstructing the complainant from discharging his duty or causing hurt with the intention of obstructing him from discharging his public duties. Therefore, on this aspect also neither it has been proved that the complainant was performing any public duty at that time nor it has been proved that the act of the accused was sufficient to deter the complainant from performing his public duty.
26. On the basis of aforesaid discussions, it is clear that there are glaring loopholes in the prosecution's story and hence the accused stands acquitted of the offence with which he is charged.
Announced in the open court (Samar Vishal)
on 21.6.2012 Metropolitan Magistrate05,
South East, New Delhi