Delhi District Court
State vs . Ravinder & Ors. on 16 February, 2008
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Ravinder & Ors.
FIR No. 46/93
PS : NDLS
U/s. 186/332/353 IPC
r/w Sec. 146 I.R. Act
JUDGMENT
a) The Sl. No. of the case : 1609/03 b) Date of Institution : 21.08.2003 c) Name of the complainant : Insp. Ujaggar Ram
d) The name & add. of accused : 1) Ravinder, S/o. Raja Ram, R/o. House No. 11B, Railway Colony, Tilak Bridge, Delhi
2) Sahab Singh, S/o. Mangal Sain, R/o. House No. 104A3, Railway Colony, Tuglakabad, Delhi
3) Kuldeep Singh, S/o. Lakshman Singh, R/o. House No. 102, Village Kilokari, PS Sriniwas Puri, Delhi
e) Date of commission of offence : 16.01.1993
f) Offence complained of : U/s. 186/332/353 IPC r/w Sec. 146 I.R. Act
g) Plea of accused : Pleaded not guilty
h) Date on which judgment reserved : 16.02.2008
i) Final Order : Accused No. 1 convicted for offence punishable U/s. 332/353 IPC.
Accused No. 2 & 3 acquitted Page No. 1
j) Date of Judgment : 16.02.2008 BRIEF STATEMENT OF REASONS FOR DECISION :
1. Briefly stated the facts as to dispose of the case in hand are that on 15.01.1993 at about 11.00 AM at TKD yard within jurisdiction of PS NDLS accused persons in furtherance of their common intention voluntarily obstructed HC Nazirgiri and Ct. Vijender IInd, public officials while they were discharging their public duties and while doing so they caused assault to above said public officials who suffered simple hurt and thereby accused persons committed offence punishable U/s. 186/332/353/34 IPC r/w Sec. 146 of I.R. Act.
2. After completion of necessary investigation, challan was prepared and filed in the court for trial. Accused persons were summoned and copy of challan and other documents were supplied to accused. A prima facie case was made out against accused persons. On 23.02.1994 charge for offence punishable U/s.
186/332/353/34 IPC r/w 146 I.R. Act was framed out against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove its case prosecution examined PW1 Dr. Y. Seenu, PW2 HC Nazirgiri and PW3 HC Umed Singh. Thereafter PE was closed and on 01.08.2007 statement of all accused persons U/s. 313 Cr. P.C. was recorded in which they denied each and every incriminating evidence led by the prosecution and stated themselves Page No. 2 to be innocent. Accused persons also desired to led evidence in their defence.
4. Accordingly in DE, accused persons examined DW1 Shri Sanjay Kumar, DW2 Shri Suresh Pal Singh, DW3 Shri Daleep Kumar Singh and DW4 Shri Manohar Dutt and DE was closed.
5. I have learned APP for State and Counsel for accused persons and carefully gone through the material produced on record. Learned APP has submitted that prosecution has examined all material witnesses to prove its case against accused while examining PW1 Dr. Y. Seenu who proved the MLC Ex. PW1/A and B of injured HC Nazirgiri and Ct. Bijender Singh respectively. PW2 HC Nazirgir in his examinationinchief supported the case of the prosecution and also proved the documents prepared during course of investigation and in the cross examination, he denied that their uniform got torn while deboarding the wagon and that accused persons did not cause hurt to them. PW3 HC Ujjagar Singh who produced the pullanda and register No. 19, photocopy of register no. 19 are Ex. PW3/A. No other witness is examined by the prosecution. Thereafter the statement of accused recorded who denied the evidence led by the prosecution and examined in their support DW1 HC Sanjay Kumar, DW2 Shri Suresh Pal Singh and Head Clerk proved duties of the accused persons. DW3 Shri Daleep Kumar Singh has also stated in Page No. 3 his examination that there were some exchange of words between Ravinder and other RPF officials when Ravinder was coming towards line No. 21 after checking the line No. 20. DW4 Shri Manohar Dutt has also corroborated and proved the duty of accused Ravinder on the spot and also that there was some altercation between RPF staff and accused Ravinder.
It is further submitted by learned APP that in fact the defence witnesses have also supported the case of the prosecution and proved and as such prosecution has successfully established its case against accused persons beyond reasonable doubt, therefore, accused persons are liable to be convicted.
6. On the other hand learned Defence Counsel while arguing the matter submitted that the case of the prosecution is false, concocted and afterthought and accused persons are falsely implicated with a view to harass and humiliate them in the eyes of the society and to maintain the police officials their prestige question, when accused Ravinder refused to close the door of the said Wagon since as per rule it was the duty of sickline employees. Accused person never stolen anything from the wagon and never tried to cause hurt to any government servant in discharging their duties and never assaulted or used criminal force to deter any public servant. All accused persons are railway employees and they were on duty and Page No. 4 were performing their duties properly as per the direction of their incharge. In fact complainant directed the accused Ravinder Kumar to close the door and he refused to close the same door as it was the duty of sickline employee and same has been testified by DW3 Shri Dalip Kumar Singh. The police officials had altercation with accused Ravinder and falsely implicated accused persons in this case. There were 2 complainants namely HC Nazirgiri and Ct. Vijender Singh whereas only HC Nazirgiri was examined. Second complainant is not examined by the prosecution to corroborate the evidence deposed by HC Nazirgiri. PW2 also cried for help as many persons were there but none of the public person was joined in the investigation to corroborate is statement, as such statement of PW2 cannot be relied upon or considered trustworthy. PW1 Dr. Deenu is a formal witness. IO ASI Krishan, Duty Officer ASI Bahadur Chand are also material witnesses who are not examined. The incident took place on 15.01.1993 and FIR was lodged on 16.01.1993 which is an afterthought. Accused Ravidner remained in duty on 15.01.1993 to 17.01.1993. Accused Sahab Singh who was the union leader has been falsely implicated and he tried to settle the matter and the mater was settled amicably by the Incharge D.K. Singh and others. Under these circumstances the accused persons are liable to be acquitted.
7. In view of the aforesaid discussion I am of the view that Page No. 5 the prosecution has cited 7 witnesses in the list of witnesses and out of them examined only 3 witnesses. The material witness is PW2 who is one of the complainants and who proved the alleged incident against accused and also denied in the cross examination that cloth was torn automatically while he was deboarding the wagon. He further denied that accused has not committed any offence. In the examination in chief PW2 categorically stated that accused persons started quarreling with them and gave him beating. He received injuries and his uniform became torn. Accused Sahab Singh and Kuldeep Singh managed to get free accuse Ravinder leaving behind the tyre which accused Ravinder had stolen from the wagon. He and Ct. Vijender were medically examined and torn uniforms were seized vide seizure memo Ex. PW2/A and B. In the cross examination there is no rebuttal by learned Defence Counsel to the specific allegations made against accused persons by PW2, rather while examining defence witnesses, the presence of the accused persons at the alleged place and time and quarrel with the complainants was proved.
8. With respect to the contentions of learned Defence Counsel regarding nonexamination of Duty Officer, I am of the view that original rukka has been proved by PW2 during his deposition and there is no rebuttal in the cross examination of PW2 as such question of proving the FIR through Duty Officer becomes formal and Page No. 6 FIR itself is one of the material document. So far as examination of Investigating Officer ASI Krishan is concerned, since he expired during the course of trial on 07.04.2003 as such he could not be examined and therefore, his testimony will not be as material since PW2 himself reiterated the allegations made against accused persons. The allegations of PW2 have been corroborated by the defence witnesses who have also testified presence of accused Ravinder Kumar and his shuffle with PW2 HC Nazirgiri, therefore, nonexamination of IO or Ct. Vijender does not make any negative impact on the case of the prosecution, rather had these witnesses been examined, it would have given more strength to the case of the prosecution.
9. Further, it is also been contended by learned Defence Counsel that injuries of PW2 HC Nazirgiri are selfinflicted injuries and his uniform was torn while he was deboarding the wagon. In this regard the contentions of learned Defence Counsel does not appeal to my mind as the injuries which are sustained by PW2 cannot be selfinflicted injuries.
10. Section 353 IPC reads as under : "Whosoever 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, Page No. 7 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 332 IPC reads as under : "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."
"In order to sustain a charge of offence punishable U/s. 353, it is is to be established that the public servant was actually engaged in execution of the duty", as observed in case titled as " State of Karnataka Vs. M. Chandrappa" (1986) 1 Crimes 137 (Karnataka).
"When the constable on finding that the accused was behaving unruly on the road, took him in custody, boarded a bus to take him to police station and the accused assaulted him in the bus, the constable was discharging his official duty when he was assaulted." So the accused can be convicted under Section 332 I.P. Page No. 8 Code" as observed in case titled as " Krishman Kutty Vs. State of Kerala" 1989 Cr. L.J. 2257 (Ker.). "The bar U/s. 195 (1) (a) Cr. P.C. is not effective for prosecution to two accused for offence U/s. 332 IPC. Hence, the requirement of making complaint in writing as postulated by Section 195 is not extended" as observed in case titled as " State of H.P. Vs. Vidya Sagar" 1 997 Cr. LJ 3893.
11. Therefore, to attract the provisions of Sections 353/332 IPC, prosecution has to prove that accused persons have assaulted or used criminal force upon the complainant with the intention to prevent or deter him from discharging his duty as a public servant. To prove this prosecution examined Complainant PW2 who categorically deposed that accused Ravinder tried to take away a tyre from the Wagon and when he prevented him to commit theft of tyre, in that eventuality accused used criminal force and created obstruction in the sovereign function of the complainant and assaulted him. Accordingly charge for offence punishable U/s. 353/332 IPC framed against accused has also come within the four corner of the guilt as defined under Indian Penal Code.
12. With respect to Section 186 IPC, prosecution has to prove the substance of 186 IPC through complaint U/s. 195 Cr. P.C., however but no complainant was filed U/s. 195 Cr. P.C. or proved on record. In a case titled as " Sardul Singh Vs. State of Haryana" Page No. 9
cited in 1992 Cr. L. J. 354 it has been observed that :
" The reading of the provision of Section 195 Cr. P.C. coupled with the provision prescribed U/s. 340 Cr. P.C. absolutely leave no doubt that not only cognizance of such offence without the complaint in writing of the court concerned is barred, but also the investigation into such offences because that will amount to taking over the function of the court where forgery was committed by the investigating agency which is against the mandate of Section 340 Cr. P.C."
In another case cited in AIR 2000 SC 168 titled as " M.S. Ahlawat Vs. State of Haryana it was observed that : " ........ provisions of Section 195 Cr. P.C. are mandatory and no court has jurisdiction to take cognizance until and unless there is complaint in writing as required under that Section."
Therefore, in the present case no specific complaint U/s. 195 Cr. P.C. has been filed as such provisions U/s. 186 IPC is not attracted against accused.
Page No. 10
13. In a case titled as " S.N. Pare Vs. State" cited in AIR 1985 SC 866 it has been held that "Conviction on the testimony of solitary witness is legal if he is wholly reliable".
The maxim falsus in uno falsus in omnibus i.e., false in one thing, false in every thing is neither a sound rule of law nor a rule of practice. So testimony of the prosecution witnesses which is found to be false in respect of one fact cannot be rejected outright as a whole, it can be accepted on cumulative evidence and other material on record as held in case titled as " Prithvi Nath Pandey Vs. State"
1994 Cr. L.J. 3623 (All.). Similarly, mere fact that the evidence of one witness was found unsafe for conviction is not per se a ground for rejecting the whole testimony of the prosecution because the maxim falsus in uno falsus in omnibus cannot be mechanically applied as held in case titled as " Nadodi Jayaraman Vs. State" AIR 1993 SC 777.
In another case titled as " Kapur Singh Vs. State" 1995 SCC (Cri) 944 it was held that "The testimony of eyewitnesses cannot be discarded merely because they could not speak with mathematical precision about the distance from which the gun was fired."
14. In view of the aforesaid discussion and facts & circumstances of the case I come to the conclusion that prosecution Page No. 11 successfully proved its case beyond reasonable doubt U/s. 353/332 IPC against accused Ravinder. There is no specific allegations found against coaccused Sahab Singh and Kuldeep Singh which can attract ingredients of Sections 353/332 IPC as such prosecution has failed to prove its case beyond reasonable doubt against accused Sahab Singh and Kuldeep Singh. Accordingly accused Ravinder is hereby convicted for offence punishable U/s. 353/332 IPC whereas accused Sahab Singh and Kuldeep Singh are acquitted from the charge leveled against them in this case.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 16.02.2008. MM:DELHI.
Page No. 12
State Vs. Ravinder & Ors.
FIR No. 46/93
PS : NDLS
U/s. 186/332/353 IPC
16.02.2008
Present: APP for the State.
All accused persons on bail.
Vide separate judgment of today accused Ravinder, S/o. Raja Ram is convicted for the offence punishable U/s. 353/332 IPC whereas accused Sahab Singh, S/o. Mangal Sain and Kuldeep Singh, S/o. Lakshman Singh are acquitted from the charge leveled against them in this case.
Now put up for order on sentence on 18.02.2008.
(S.K. Gautam)
MM/Delhi
16.02.2008
Page No. 13
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Ravinder & Ors.
FIR No. 46/93
PS : NDLS
U/s. 186/332/353 IPC
r/w Sec. 146 I.R. Act
ORDER ON SENTENCE
Present: APP for State.
Accused/Convict Ravinder with Counsel.
APP for the State submitted that the prosecution has proved its case against the accused/convict person beyond reasonable doubt hence accused/convict person is liable to be sentenced in accordance with law.
On the other hand accused Ravinder has submitted that the case is pertaining to the year 1993 and since then he has been appearing before the court regularly except on few occasions and due to his involvement in the present case he has suffered a lot of mental agony and pain. He further submitted that he belongs to a poor family and if he is sent behind the bars the condition of his family would become further miserable, therefore, he may be fined as the court may deem fit and proper.
In this regard reliance has been placed on following citations :
i) 1995 Supp (2) Supreme Court Cases 713 (Before M.M. Punchi and K. Kayachandra Reddy JJ) titled as "Nirmal Lal Gupta Vs. State of Orrisa"
"Criminal Appeal No. 35 of 1990, decided on September 8, 1994 - Railway Property Page No. 14 (Unlawful Possession) Act, 1966, S. 3(a) and
(b) - Probation of Offender Act, 1958, held, applicable to an offence punishable under clause (a) of S. 3 - Under clause (a), unlike clause (b), court not obliged to always award imprisonment as a punishment - Distinction between clauses (a) and (b) pointed out - In the circumstances of the case, sentence of imprisonment altered to a fine of Rs. 3000 as prayed by the appellant before the High Court
- Probation of Offenders Act, 1958, Ss. 3 and
4.
ii) 1980 CC Case 46 (Delhi) In the High Court of Delhi at New Delhi Hon' ble Mr. Justice J.D. Jain titled as "Dalip Singh Vs. State"
"The expression "Special reasons" natural connotes reasons which compel the Court to held that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to his age, character, antecedents and the circumstances in which, the offence was committed. "
iii) 1979 ALL. L. J. 947 H.N. KAPOOR, J. titled as "State Vs. Shivendra Pratap Singh"
"Held that in the circumstances of the case the sentence of imprisonment was not called for in this case - The ends of justice would be adequately met if the accused was sentenced to fine."
Page No. 15
Keeping in view of the facts and circumstances of the case as well as nature of the offence and socio, economic condition of the accused, accused/convict Ravinder, S/o. Raja Ram is hereby sentenced to imprisonment which is already undergone by him during the course of enquiry and trial and fine of Rs. 2,000/ I.D. 30 days S.I. each in this case U/s. 353/332 IPC.
Case property be disposed of in accordance with law. File be consigned to Record Room. Copy of order be given to the accused/convict, free of cost.
ANNOUNCED IN THE OPEN S.K.GAUTAM
COURT ON 21.02.2008 MM:DELHI.
Page No. 16
State Vs. Ravinder & Ors.
FIR No. 46/93
PS : NDLS
U/s. 186/332/353 IPC
r/w Sec. 146 I.R. Act
21.02.2008
Present: APP for RPF.
Accused/convict Ravinder in person.
Heard arguments on the point of sentence.
Vide separate order of today accused Ravinder, S/o. Raja Ram is sentenced for the offence punishable U/s 353/332 IPC.
Case property be disposed of in accordance with law. File be consigned to RR.
(S.K. Gautam) MM/Delhi 21.02.2008 Page No. 17