Delhi District Court
State vs 1. Mohd. Tosif on 22 October, 2020
In The Court Of
Dr. Satinder Kumar Gautam : Additional Sessions Judge-03 :
East District : Karkardooma Courts : Delhi.
Sessions Case No. : 1677 of 2018
State Versus 1. Mohd. Tosif
S/o Mohd. Shkil Ahmed
R/o H.No. 847, Haweli Azam Khan
Chitli Kabra, Zama Masjid, Delhi.
2. Mohd. Tohid
S/o Mohd. Shakil Ahmed
R/o H.No. 2121, Kuncha Chalan
Kuncha, Nahar Khan, Daryaganj,
Delhi.
3. Mohd. Owais
S/o Mohd. Abid
R/o H.No. 1352, Phari Imli
Churiwalan Zama Masjid, Delhi.
4. Mohd. Shoeb
S/o Mohd. Shakeel Ahmed
R/o H.No. 847, Gali Godo Wali,
Haweli Azam Khan, Chitli Kabra,
Zama Masjid, Delhi.
(Already sentenced vide order dated
05.12.2018 for the offence
punishable under Sec. 5/181 MV Act)
5. Rizwan Ahmed
S/o Khaleel Ahmed
R/o H.No. N-86, Narayan Nagar,
Lalita Park, Laxmi Nagar, Delhi.
(Already sentenced vide order dated
05.12.2018 for the offence
SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 1 of 30
punishable under Sec. 5/181 MV Act)
FIR No. : 178/2018
Under Section : 186/353/308/333/34 IPC
Police Station : Geeta Colony
Chargesheet Filed On : 02.08.2018
Chargesheet Allocated On : 25.08.2018
Chargesheet received by
this Court on : 30.08.2018
Judgment Reserved On : 17.10.2020
Judgment Announced On : 22.10.2020
JUDGMENT
1. The brief facts of the case of the prosecution are that on 03.06.2018 on receipt of DD No. 4-B (Ex.PW4/D) regarding an accident, Head Const. Vineet along with Const. Sandeep (PW-12) reached at the spot i.e. Pusta Road, near Shamshan Ghat police picket where police friend Manish (PW-3) met them who produced one boy namely Tosif along with scooter bearing registration no. DL-7SAQ-4980 and informed that said boy along with his two other associates intentionally hit HC Pramod Kumar with his scooter and injured was rushed to LNJP hospital by ASI Harbir. Thereafter, HC Vineet left for LNJP Hospital after leaving Const. Sandeep and police friend Manish at the spot. In the LNJP Hospital, he collected SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 2 of 30 the MLC of injured - HC Pramod Kumar who was found under treatment. Thereafter, he recorded the statement of injured Pramod Kumar who inter alia stated that on 02.06.2018, while he was on picket duty at Shamshan Ghat Pusta Road, Geeta Colony, Delhi along with ASI Harbir and police friend Manish from 8 p.m. to 8 a.m. and were checking the vehicle vide DD No.46-B dated 02.06.2018 after putting the barricades. At about 1.30 a.m. during night hours, three boys who were without helmet, came on a scooter at a very high speed and when ASI Harbir who was standing at first barricade, gave a signal to them to stop but they did not stop and tried to hit ASI Harbir however, he saved himself. Thereafter, when he tried to stop them then said boys shouted at him to remove the barricade otherwise they kill him, and in the meantime, they hit him with intention to kill due to which, he fell down on the road along with his service rifle and sustained multiple injuries on his person and scooter of assailants also fell down. Thereafter, ASI Harbir and police friend Manish apprehended Tosif, driver of said scooter along with his scooter bearing registration no. DL- 7SAQ-4980. Thereafter, ASI Harbir rushed him to LNJP Hospital after leaving behind apprehended boy in the custody of police friend Manish however, other two boys fled away from the spot.
2. On the basis of statement of complainant, present case bearing FIR No. 178/2018 under Sections 186/353/308/34 IPC was SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 3 of 30 registered. Then investigation was marked to SI Mintu Singh. Site plan was prepared. Accused Tosif was arrested who also disclosed about his other two associates namely Tohid and Owais. Accused Tohid was also arrested. Statement of witnesses were recorded. Final opinion regarding nature of injury of injured was obtained which was opined as 'grievous'. Thereafter, Section 333 IPC was also added. Mechanical inspection report of scooter in question was taken. On conclusion of the investigation, chargesheet was filed against all accused persons before the court of ld. MM for the offences punishable under Sections 186/353/308/333/34 IPC.
3. On 23.09.2018, supplementary chargesheet was also filed against co-accused persons namely Mohd. Owais, Mohd. Shoeb and Rizwan Ahmed (owner of scooter no. DL-7SAQ-4980). Ownership proof of abovesaid scooter was taken from Transport Registration Authority and came to know that the said scooter was in the name of Fashion Creation, N-86, Narayan Nagar, Lalita Park, Laxmi Nagar. Then he went to said place where Rizwan Ahmed met him and informed that he is owner of said company and said scooter was also owned in the name of his company in the year 2007 however, on 15.05.2017, he sold said scooter to Mohd. Shoeb for a sum of Rs.3,500/- and handedover the scooter along with insurance and RC in presence of a witness Areeb. Thereafter, he met with Mohd. Shoeb who disclosed that he had purchased the said scooter and SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 4 of 30 taken its RC and insurance however, on the date of incident, the insurance of said scooter was not with him and he himself handedover his scooter to his younger brother Tosif who was not having driving licence, to ply the same. Thereafter, Section 5/180 & 149/19 M.V. Act was added. Statement of witnesses were recorded. Sections 128/177, 129/177, 3/181, 5/180 and 146/196 M.V. Act were also added for driving the scooter without driving licence, triple riding and without helmet. Accused Mohd. Owais was also arrested and then released on bail.
4. Supplementary chargesheet was also filed against accused Rizwan Ahmed, Mohd. Shoeb and Mohd. Owais for the offences punishable under Sections 186/353/308/333/34 IPC; under Sections 128/177, 129/177, 3/181, 5/180 and 146/196 of M.V. Act.
5. After compliance of provisions of Sec. 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 308 IPC was exclusively triable by it.
6. On 08.10.2018, Supplementary chargesheet was allocated to the Court of Sessions and it was clubbed with main chargesheet.
7. Vide order dated 05.12.2018, Charge-I under Sections 186/34 IPC; 353/333/34 IPC; 307/34 IPC and Charge-II under Section 129/177 of The Motor Vehicle Act, 1988 was framed against all accused persons namely Mohd. Tosif; Mohd. Tohid and Mohd. Owes. A separate Charge-III SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 5 of 30 under Section 3/181 M.V. Act, 1988; 146/196 M.V. Act, 1988; 128/177 M.V. Act, 1988 and 112/183 M.V. Act, 1988 also framed against accused Mohd. Tosif vide the same order. To the said charges, all accused persons pleaded not guilty and claimed trial.
8. Vide said order, charge under Section 5/180 M.V. Act, 1988 was also framed against accused Mohd. Shoeb and Rizwan Ahmed to which both accused persons pleaded guilty and do not claimed to be tried. As such, accused Mohd. Shoeb and Rizwan Ahmed were held guilty and were sentenced accordingly vide detailed order of 05.12.2018.
9. The Prosecution in support of its case examined 15 witnesses in all whose testimony are as under :
PW-1 HC Pramod Kumar is the injured/victim of present case who narrated the entire incident by stating on th intervening night of 02/03.06.2018, he was on picket duty along with ASI Harbir and police friend Manish at Shamshan Ghat, Pusta Road, Geeta Colony from 8 p.m. to 8 a.m.. At about 1.30 a.m. when ASI Harbir Singh was present at the first barricade and he was standing behind of third barricade, three boys came on a scooter without helmet at a high speed and despite signal to stop by ASI Harbir, they did not stop and crossed said barricade however, ASI Harbir saved himself. Thereafter, when he gave a signal to them to stop, pillion rider exhorted not to stop the vehicle and they hit him with their SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 6 of 30 scooter with intention to kill due to which he fell down on the road with his service riffle and sustained multiple injuries. The scooter of assailants also fell down and then ASI Harbir and Manish came there and apprehended driver namely Tosif of said scooter along with his scooter and thereafter, ASI Harbir took him to LNJP hospital after handing over the custody of apprehended boy. PW-1 also proved his statement Ex.PW1/A. He correctly identified all three accused persons present in the court.
PW-2 ASI Harbir Singh and police friend/PW-3 Manish Kataria are the eye witnesses of present incident and have narrated the entire incident as deposed by PW-1. Both these witnesses also correctly identified accused Tosif as driver of the said scooty.
PW-4 HC Shri Ram, Duty Officer, proved copy of FIR as Ex.PW4/A with other records including DD No. 4-B as Ex.PW4/D. PW-5 Sh. Tasnimuddin Siddiqui, Mechanical Inspector, has proved the Mechanical Inspection Report as Ex.PW5/A. PW-6 Dr. Shivani, CMO, of LNJP Hospital proved MLC No. 11949999 Ex.PW6/A of patient Pramod Kumar, brought by ASI Harbir Singh to the hospita,l with the alleged history of RTA near Geeta Colony, Shamshan Ghat at around 1.30 am.
PW-7 Dr. Surya Prakash, Senior Resident of ENT Department, LNJP Hospital gave his opinion regarding nature of injuries as SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 7 of 30 ''Grievous" as per ENT point of view at points X to X on MLC Ex.PW6/A. PW-8 HC Vineet Kumar stated that on receipt of DD No.4-B, he alongwith PW-12 Ct. Sandeep reached at the spot where apprehended boy was handedover to him by police friend Manish along with scooter bearing registration no. DL-7SAQ-4980. Thereafter, he went to LNJP Hospital and collected the MLC of injured from there and also got registered the FIR of present case. He recorded the statement of injured/PW-1 and made his endorsement Ex.PW8/A on it. Thereafter, investigation of the present case was marked to SI Mintoo and he handedover all the relevant documents to him.
PW-9 Ct. Gundeep stated that accused Tohid surrendered himself in the Police Station before the IO and in his presence, accused Tohid was arrested vide arrest cum personal search memo Ex.PW9/A and proved his disclosure statement is Ex.PW9/B. PW-10 SI Mintu Singh is the investigating officer and has conducted the proceedings of present case. He also proved seizure memo of Scooty bearing registration No. DL-7SAQ-4980 vide Ex.PW10/A, site plan Ex.PW10/A1, arrest memo Ex.PW10/B and disclosure statement Ex.PW10/C of accused Tosif, disclosure statement Ex.PW10/D and arrest memo Ex.PW10/E of accused Owais.
PW-11 Dr. Virat of LNJP Hospital stated that under his SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 8 of 30 supervision, Dr. Babneet examined patient Pramod Kumar vide MLC Ex.PW6/A. PW-13 Sh. Danveer Singh, Record Clerk of LNJP Hospital identified the handwriting and signature of Dr. Charit who had given the opinion on MLC of patient Pramod Kumar at point X to X. PW-14 Dr. Charit, Senior Resident of Neuro Surgery Department, LNJP Hospital has given the nature of injuries on the MLC of Pramod Kumar as 'Simple' and then the patient was referred to ENT Department for final opinion. He proved his noting at point X to X on the MLC Ex.PW6/A. PW-15 Sh. V.H.M. Meena, IPS, DCP Traffic, South Range proved a complaint under Section 195 CrPC vide Ex.PW15/A.
10. Vide separate statement dated 20.01.2020, ld. Addl. P.P. for the State has dropped witness Areeb S/o Late Nisar Khan in supplementary challan as accused Shoeb and Rizwan Ahmed have already convicted in the present case. He also made statement that there is no need to examine witness Mohd. Shoib S/o Shakeel Ahmed who was a witness in supplementary challan and also mentioned his name as an accused.
11. The statement of all accused persons were recorded under Section 313 CrPC in which they denied all the incriminating circumstances SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 9 of 30 put against them. They pleaded their innocence and further pleaded their false implication. Accused Mohd. Tosif stated that he did not cause any injury to anyone at any point of time. The accused persons did not lead any evidence in their defence.
12. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges against the accused persons as the testimonies of the prosecution witnesses are trustworthy, reliable and cogent. There is no iota of evidence to disbelieve the same. He argued that there is no reason to disbelieve the testimony of the injured/PW-1 HC Pramod Kumar, which is cogent and credible and is sufficiently corroborated by medical evidence with other ocular evidence of other witnesses. The scooter in question has been recovered from the possession of accused Mohd. Tosif through which, he along with his co-accused persons hit the injured with intention to kill. He argued that accused persons have failed to give any reasonable account for their false implication. No material contradiction or discrepancy has occurred which may hamper the prosecution case in any manner. Ld. Addl. PP further submitted that therefore, all accused persons are liable to be convicted in accordance with law and the charges framed against them.
13. Per contra, ld. defence counsel has completely refuted the said contentions with the submissions that the accused persons have been SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 10 of 30 falsely implicated in this case. The accused persons have not been arrested in the manner as deposed by the police witnesses. One of the contentions of ld. defence counsel is that the police officials did not make any sincere efforts to cite any witness from the public either at the time of apprehension of accused Mohd. Tosif and recovery of scooter and other proceedings though the alleged place of arrest is a thickly populated area. All the witnesses as cited by the prosecution are police officials/police friend and are interested witnesses and that there are material contradictions. Ld. defence counsel thus, prayed for acquittal of the accused persons submitting that the prosecution case is full of doubts.
14. Having carefully gone through the entire material on record and the rival submissions of the parties, in the light of the law laid down in the judgments on the issue in question.
15. There is no dispute to the fact that case of the prosecution case rests upon the testimonies of the injured/PW-1 HC Pramod Kumar; PW-2 ASI Harbir and police friend/PW-3 Manish Kataria for the crime committed at the spot and for recovery of the scooter in question.
16. Ld.Addl. PP refuted qua numbere of witnesses that Section 134 Indian Evidence Act is also to the same effect. As per this Section - No particular number of witnesses shall in any case be required for the proof of any fact - as such, to prove any fact, there is no bar of number of SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 11 of 30 witnesses.
17. Next contention of the ld. defence counsel is that no public witness was joined, and same is fatal to the prosecution case. It is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. In case of Ajmer Singh V. State of Haryana [(2010) 3 Supreme Court Cases 746], the Hon'ble Supreme Court held as follows:
"We can not forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.".
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18. Apart from that, in another case reported as Karamjit Singh Vs State (Delhi Admn.), 2003 III AD (SC) 353, Hon'ble Apex Court clearly observed that - the presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses their testimony can not be relied upon.
19. Now, court has to see whether the testimony of the material witnesses is reliable and trustworthy or not.
20. All these witnesses i.e. injured/PW-1 HC Pramod Kumar; PW- 2 ASI Harbir and police friend/PW-3 Manish Kataria in unequivocal terms narrated about the crime committed. PW-1 identified all accused persons. All these witnesses correctly identified accused Mohd. Tosif (driver of scooter) who was present at the spot and committed the crime. PW-1 HC Pramod Kumar stated as follows :
"In the intervening night of 02/03.06.2018, I was posted as HC at PS Geeta Colony. On that day, I was on picket duty alongwith ASI Harbir and police friend Manish (Civil Defence) at Shamshan Ghat, Pusta Road, Geeta Colony from 8.00 pm and 8.00 am. At about 1.30 am, ASI Harbir Singh was present on first barricade SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 13 of 30 and I was standing on behind of third/last barricade. At that time, three boys came on a scooty without helmet on a high speed and ASI Harbir gave signal to stop them but they did not stop their scooty and they crossed the barricade of ASI Harbir and he saved himself with them. Thereafter, after seeing that, I also gave signal by raising my hand in the air to stop the said vehicle and also raised loudly to stop their vehicle. Pillion riders exhorted not to stop the vehicle again said and then all the riders of scooty told in loud voice that "barricade nahi hata raha to sale ko jaan se maar do" and then they hit me with their scooter when tried to save myself. Due to this hitting, I fell down on the road with my service rifle and sustained injuries just above the left eyebrows. I also received injuries on my nose and my teeth were also shakened and I also received fracture injuries under my right ear. I also received injuries on my hands, legs and other parts of the body. The accused persons caused injuries to me with intention to kill me. The scooty of assailants was also fallen down. Thereafter, ASI Harbir and Manish came there and apprehended the driver of said scooty whose name was subsequently came to know as Tosif alongwith his scooty no.
SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 14 of 30 4980. The custody of said scooter driver was handedover to Manish and ASI Harbir took me in a TSR to LNJP Hospital where I was under
treatment. Accused persons obstructed my duty and caused deliberately injuries with intention to kill me."
21. Remaining witnesses namely PW-2 ASI Harbir and police friend/PW-3 Manish Kataria also toed the lines of PW-1 HC Pramod Kumar regarding the crime committed by the accused persons. All these witnesses also identified accused Mohd. Tosif as driver of said scooter and PW-1 identified all accused persons, as being responsible for the crime committed in the present matter. All these witnesses also identified the scooter seized from the spot.
22. One of the contentions of the ld. defence counsel regarding contradictions and improvements, court is of the view that from time to time in catena of judgments by superior courts, this issue has been dealt with. Hon'ble Apex Court has laid down in catena of judgments that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored. Reference may be taken from the judgment reported as A. Shankar v. State of Karnataka , (2011) 6 SCC 279, wherein it was observed as follows:
"In all criminal cases, normal
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discrepancies are bound to occur in the
depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
23. Minor discrepancies in the statements of witnesses are of no help to the accused persons. In Siddiqua Vs. Narcotics Control Bureau (2007 Crl L.J. 1471 of Hon'ble High Court of Delhi) the Hon'ble High Court of Delhi also observed that minor discrepancies are very natural to occur in testimony of different witnesses and testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions. The Hon'ble Delhi High Court in the said judgment held as follows:
SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 16 of 30 "A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses parrot like repeat the same statement, one after another, such statements would not be natural statements. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each person shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of witnesses can not be rejected on the ground that there were minor discrepancies or contradictions."
24. Hon'ble Delhi High Court has further observed as follows in the said judgment :
"The Court has to consider the entire evidence as has been adduced before it and then come to a conclusion. Learned counsel for the appellant can not lift one sentence from here and another sentence from there and ask the Court that the case should depend upon that SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 17 of 30 sentence in the testimony. It is only after considering the entire statement of a witness that the Court has come to a conclusion that the witness was credit worthy or not. The Court has to silt grain from the chaff. It is well recognised that minute details of incident, with the passage of time, go out of memory. In all such cases, the Court has to see whether the over all testimony of the was truthful and whether the incident, as claimed by the prosecution had happened or not. The proof beyond reasonable doubt, only means that the Court should see that all the material ingredients of the offence have been proved by cogent evidence. The prosecution agency is also a human agency and the Court should accept accuracy standards only to the extent which can be expected from a normal human being. The Court should not accept super human standards from the prosecution agency in all aspects. What the Court has to see is that the investigation has been done in a fair and proper manner and there is no false implication of the accused."
25. Regarding contradictions, ld. counsel for the accused persons could not point out any material contradiction which might make the prosecution version doubtful. Minor discrepancies in the statements of witnesses are of no help to the accused persons and be ignored in view of SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 18 of 30 the above discussion and observations of the judgments.
26. All accused persons have been charged for the offences punishable under Sec. 186/34 IPC; 353/333/34 IPC; 307/34 IPC and Charge under Section 129/177 of The Motor Vehicle Act, 1988 and Charge under Section 3/181 M.V. Act, 1988; 146/196 M.V. Act, 1988; 128/177 M.V. Act, 1988 and 112/183 M.V. Act, 1988 also framed against accused Mohd. Tosif. Now, the court has to see for what offence(s), all accused persons have committed the offences and/or can be held guilty.
27. Section 186 IPC is reproduced as follows :
"Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with xxxxxx"
28. This Section provides for voluntarily obstructing a public servant in the discharge of his duties. It must be shown that the obstruction or resistance was offered to a public servant in the discharge of his duties or public functions as authorised by law.
29. To facilitate the matter, Section 353 IPC is reproduced as under:
"Whoever assaults or used 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 this duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 19 of 30 of his duty as such public servant, shall be xxxxx".
30. Sections 186 and 353 of Indian Penal Code relate to two distinct offences and while the offence under latter Section is a cognizable offence, the one under the former is not so. The ingredients of the two offences are also distinct. Section 186 IPC is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Sec. 353 IPC, the ingredients 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 Chapter X of the Penal Code dealing with contempts of the lawful authority of public servants, while Section 353 occurs in Chapter XVI regarding the offences affecting the human body. This is also a clear indication that use of criminal force contemplated under Sec. 353 IPC is against a person and not against any inanimate object.
31. The ingredient of Sec. 353 are that the accused assaulted or used criminal force to a public servant, that the public servant at the time of the offence was acting in the discharge of a duty imposed on him by law as such public servant or that the offence was committed with intent to prevent or deter the officer from discharging a duty imposed on him by law as such or that it was committed in consequence of something done or SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 20 of 30 attempted to be done by the public servant in the lawful discharge of a duty imposed on him by law as such. To bring home the guilt an offence under Sec. 353 IPC, the prosecution is to prove the points (1) or (2)as in Se. 352 IPC. The prosecution is to prove further (3) the victim of assault or user of force was a public servant within the meaning of Sec. 21 IPC. (4) the assault or user of force was made on such public servant while he was executing his duty as a public servant; or the assault or user f force was made with an intention to prevent or deter the public servant concerned from discharging his duty qua public servant; or the assault or user of force was made in consequence of anything done or attempted to be done by the concerned public servant in discharge of his duty qua public servant.
32. No documentary proof has come on record in any form of evidence to the effect that the victim was on official duty at the time of the alleged incident and was discharging their duties as public servants.
33. Section 186 IPC provides for voluntarily obstructing a public servant in the discharge of his duties. It must be shown that the obstruction or resistance was offered to a public servant in the discharge of his duties or public functions as authorised by law. This Section also lays down that there should not only be an obstruction to public officer in discharge of public function but also such obstruction must be voluntarily. The views of the different High Courts on this subject are not uniform. The Calcutta High SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 21 of 30 Court is of the view that Section 186 IPC applies only when the function obstructed is a legal and authorised function.
34. Apart from that, complaint under Section 195 CrPC has not been proved in accordance with law. PW15- Sh. V.H.M. Meena, IPS, firstly gave evasive replies during the cross-examination conducted on him. Apart from that, as per the record, he was deputed since Sept. 2018 but admittedly Ex.PW15/A has been signed on 08.08.2018. This all shows how casually this case has been conducted. Besides the above, PW-1 and PW- 2 failed to prove the master role vide which they were deputed at the alleged spot on the day and time of the incident. This all creates a big question mark on the complaint Ex.PW15/A which has not been proved in accordance with law.
35. In view of the over all circumstances and above discussion, this court is of the view that prosecution has failed to bring home the guilt of any of these accused persons to constitute the offences punishable under Sec. 186/353/333/34 IPC. As such, accused Mohd. Tosif, Mohd. Tohid and Mohd. Owais are acquitted for the offences punishable under Sections 186/353/333/34 IPC.
36. In the alternative, accused persons are also charged for the offence punishable under Sec. 307/34 IPC. It is to be kept in mind that offence under Sec. 307 IPC is a very serious offence and it requires the SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 22 of 30 same very factors to be proved as are needed to be prove an offence under Sec. 302 IPC except that in this case the act falls short of the death of the deceased which is necessary under Sec. 302 IPC.
37. Perusal of the record is clear to the aspect that all accused persons intentionally hit PW-1 HC Pramod Kumar with their scooter in presence of eye witnesses i.e. PW-2 and PW-3. All of them stated that all accused persons plied their scooter at a high speed and they did not stop the scooter despite signal given by PW-2 and then they firstly tried to hit PW-2 HC Harbir Singh who saved himself and then to hit the same to PW- 1 HC Pramod Kumar due to which he sustained multiple injuries on his person. Now, it is to be analyzed whether this case for injuries sustained by Shamshad Alam attracts provisions of Sec. 307 IPC or otherwise.
38. As per the provision of the Section 307 IPC, the essential ingredients required to be proved in the case of an offene under this section are as under :
(i) that the death of a human being attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 23 of 30 first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause any injury and thereafter hurt, it is punishable with imprisonment for life".
39. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act or the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result and injury, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be penultimate act. It is sufficient in law, if there is present an intent coupled SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 24 of 30 with some over act in execution thereof. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes 'hurt'. It does not require that the hurt should be grievous or of any particular degree. To constitute an offense, no injury need be caused to the victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under Section 307 IPC the intention to kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed which is not so in this case. The intention is not gatherable merely from the seriousness of resultant injury.
40. It is clear from the record that injuries were caused by accused persons without any intention to kill. In S.K. Jago Vs. State, 2007 Crl. L.J. 463 (Jhar.), it is clearly observed that accused persons without any intention to cause death fired one shot each and caused the injuries to father and son and then it was held that accused persons were liable to be convicted for the offence of voluntarily causing hurt under Sec. 324 and not for the offence of attempt to murder. Apart from that, there is no dispute on the cutting/overwriting about nature of injuries, which is a dent on the prosecution case about nature of injuries.
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41. Hence, in view of the over all circumstances of the case, court is of the view that ingredients of Sec. 307 IPC are not attracted in the present matter. Though, the incumbent of Sec. 307 IPC is not attributed under the facts and circumstances of the present case as well the prosecution has not brought home the guilt of accused persons for the offence punishable under Sec. 307 IPC, however, it has been proved that it was the accused persons who caused injuries to injured/victim.
42. With the above observations and discussion, this court is of the view that prosecution has failed to bring home the guilt of any of these accused persons for the offence punisable under Sec. 307 IPC, however, prosecution has proved its beyond all reasonable doubts that it was the accused persons who caused injuries to injured and as such, accused persons Mohd. Tosif S/o Mohd. Shakil Ahmed; Mohd. Tohid S/o Mohd. Shakiul Ahmed and Mohd. Owes S/o Mohd. Abid are held guilty for the offence punishable under Sec. 324/34 IPC.
43. Above mentioned accused persons were also charged for the offenbce punishable under Sec. 129/177 M.V. Act. Besides the above, accused Mohd. Tosif was also charged for the offence punishable under Sec. 3/181 M.V. Act, 1988; 146/196 M.V. Act, 1988; 128/177 M.V. Act, 1988 and 112/183 M.V. Act, 1988.
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44. To prove the abovesaid offences punishable under Motor Vehicle Act, 1988, the prosecution produced many witnesses. Though none of the witnesses deposed that the accused Mohd. Tosif was riding on the said scooter along with co-accused Mohd. Tohid and Mohd. Owais without driving licence, without insurance or riding the two wheeler without protective headgear and it is a case of triple riding, but from the record it is clear that all accused persons have been identified by injured/PW-1 as well as eye witnesses/PW-2 & PW-3 also identified accused Mohd. Tosif as culprits for the offences committed upon the victim, it shows that said accused persons were not wearing any headgear at that time. Apart from that no suggestion was ever put to any of the witnesses that accused Mohd. Tosif was not found driving the vehicle without any valid driving licence or riding the same without any protective headgear. No ill-will, grudge or enmity has either been alleged or proved. There is no reason for implication of the accused persons for said offences. Admittedly, accused Mohd. Tosif, Mohd. Tohid and Mohd. Owais have been charged for the said offences and all accused persons were well within knowledge for the said aspect. No suggestion put to any of the witness implies admission of the said offences at the hands of the accused persons.
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45. Mere simple denial to the allegations have no value in the eyes of law. Though not binding on the facts and circumstances, but it is also to be kept in mind that accused persons Mohd. Shoeb and Rizwan Ahmed pleaded their guilt for the offence punishable under Sec. 5/180 MV Act.
46. But perusal of the record is clear to the effect that nothing has been brought on record to the effect that the scooter/scooty was at high speed. No speedometer reading has been produced on record. Nothing otherwise has come or brought on record to the effect that scooter/scooty was being driven at a speed exceeding the maxim speed at a public place and as such, this court is of the view that prosecution could not able to prove the case against accused Tosif for the offence punishable under Sec. 112/183 MV Act and entitled for his acquittal under this head.
47. However, all the above circumstances, including the above discussion and facts, raised a finger against accused persons and hence, in view of the above, it is clear that prosecution has proved its case against accused persons Mohd. Tosif S/o Mohd. Shakil Ahmed, Mohd. Tohid S/o Mohd. Shakil Ahmed and Mohd. Owais S/o Mohd. Abid for the offence punishable under Sec. 129/177 M.V. Act and also against accused Mohd. Tosif for the offence punishable under Secs. 3/181; SC No. 1677/2018 State Vs. Mohd. Tosif etc. Page No.: 28 of 30 146/196 and 128/177 of The Motor Vehicle Act, 1988.
48. Sum up of the above discussion is that prosecution has failed to bring home the guilt against any of these accused persons for the offence punishable under Sec. 186/34 IPC; 353/333/34 IPC and 307/34 IPC and also under Sec. 112/183 MV Act against Mohd. Tosif, however, prosecution has fully proved its case beyond all reasonable doubts against accused persons namely Mohd. Tosif S/o Mohd. Shakil Ahmed, Mohd. Tohid S/o Mohd. Shakil Ahmed and Mohd. Owais S/o Mohd. Abid for the offences punishable under Sec. 129/177 M.V. Act and also against accused Mohd. Tosif S/o Mhd. Shakil Ahmed for other offences. As such:
(a) accused persons namely Mohd. Tosif S/o Mohd. Shakil Ahmed, Mohd. Tohid S/o Mohd. Shakil Ahmed and Mohd. Owais S/o Mohd. Abid are acquitted for the offences punishable under Sections 186/34;
353/333/34 IPC and also 307/34 IPC;
(b) accused Mohd. Tosif is acquitted for the offence punishable under Sec. 112/183 MV Act;
(c) accused persons namely Mohd. Tosif S/o Mohd. Shakil Ahmed, Mohd. Tohid S/o Mohd. Shakil Ahmed and Mohd. Owais S/o Mohd. Abid are held guilty for the offence punishable under Sec. 129/177 M.V. Act and are convicted accordingly;
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(d) accused Mohd. Tosif S/o Mohd. Shakil Ahmed is further held guilty under Sections 3/181; 146/196 and 128/177 of the Motor Vehicle Act, 1988 and as such, is convicted accordingly.
Announced in the open Court on 22nd day of October, 2020 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts : Delhi.
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