Delhi District Court
Fir No. 430/00; St vs . Sushil Kumar; Ps: Sarojini Nagar on 30 March, 2011
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FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH), SAKET COURTS, NEW DELHI
STATE VS. Sushil Kumar
FIR NO: 430/00
P. S. Sarojini Nagar
Date of institution of case : 08.06.2001
Date on which case reserved for judgment : 30.03.2011
Date of judgment : 30.03.2011
Advocates appearing in the case :
Sh. Ashesh Changkum, Ld. APP for State
Sh. Narender Kumar Sharma, counsel for accused
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 20.09.2000
b) Offence complained of : U/S 186/353/332 IPC
c) Name of complainant : Sh. D.K. Srivastav
d) Name of accused, his parentage, : Sushil Kumar
local & permanent residence S/o Sh. Brahm Singh
R/o A199,
Kidwai Nagar (East)
New Delhi.
e) Plea of accused : He is falsely implicated.
g) Final order : Accused is acquitted.
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FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that the present FIR was lodged on the complaint of complainant Sh. D.K. Srivastav, the store keeper of NDMC, Laxmi Bai Nagar, New Delhi that scooter no. DAA7395 belonging to accused Sushil Kumar was towed away and deposited in the NDMC Store on 19.09.2000, and on 20.09.2000 at about 6 PM, accused Sushil Kumar came at the NDMC Store and asked for release of scooter for which he was asked to deposit Rs. 100/ as fine but he stated that he has only Rs. 60/ and he will send his colleague with remaining Rs. 40/ and after sometime, his colleague came with Rs. 50/ note and the complainant gave him back Rs. 10/ and told that receipt will be issued on the next day but accused Sushil Kumar misbehaved with complainant and caught him by neck and abused and slapped him in the presence of other officials namely Sh. Ram Kumar, Sh. P.D. Yadav, Sh. Om Bir and Sh. Hari Shankar Pandey, hence a call at 100 number was made and accused was got arrested. After completion of investigation and recording of statement of witnesses, chargesheet was filed by the IO SI B.S. Gulia.
2. On the basis of chargesheet, charge u/s 186/353/332 IPC were framed against accused to which he pleaded not guilty and claimed trial. Prosecution examined five PWs on its behalf to prove its case.
3. PW1 SI Ishwar Singh was the DO who exhibited copy of FIR as Ex.PW1/A. PW3 Ct. Narender Kumar stated that on receipt of DD no. 28A, he had gone to NDMC Store, Laxmi Bai Nagar with SI Arvind where storekeeper Sh. D.K. Srivastav met and handed over complaint to SI Arvind and SI Arvind made Page no. 3/8 FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar endorsement and sent him to lodge the FIR.
4. PW5 Inspector Arvind Verma stated that he had gone at the spot on 20.09.2000 on receipt of DD no. 28A and recorded complaint of complainant and prepared rukka Ex.PW5/A and after lodging of FIR, prepared site plan Ex.PW5/B at the instance of complainant. After his transfer, SI B.S. Gulia carried on further investigation. He was examined as PW4 and he stated that he arrested the accused vide arrest memo Ex.PW4/A and got sanction u/s 195 Cr.P.C. for prosecution of accused and thereafter filed chargesheet.
5. The most important witness is complainant himself who has been examined as PW2. He stated that he was working as Store Keeper in NDMC Store when accused had come to him for the release of his scooter and on his disclosure that he is in Delhi Police, PW2 asked him to deposit Rs. 100/ but accused stated that he has only Rs. 60/ and he will send remaining amount with his friend. After sometime, accused again came and asked to issue receipt without depositing the fine but PW2 stated that he could not issue the receipt since it was overtime, so the accused became furious and slapped him. Somebody informed to police and police came at the spot and took all of them to police station where he made complaint which is Ex.PW2/A. PW2 stated in his examination in chief that a Chowkidar Mithilesh Kumar, P.D. Yadav, Hari Shankar Pandey and Janardhan were also present at the time of incident. In his cross examination, he denied the suggestion that accused had deposited the fine of Rs. 100/ and he further denied that he had assaulted the accused with help of his other colleagues. He admitted that FIR no. 431/00 was registered against him in PS Sarojini Nagar.
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FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar
6. After closure of PE, statement of accused was recorded u/s 313 Cr.P.C. in which he stated that he is innocent and has been falsely implicated in this case. He preferred not to lead defence evidence, hence case was fixed for final arguments. Final arguments were heard today and case was fixed for order for today itself.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
7. During final arguments, the counsel for the accused has submitted certified copy of chargesheet and documents of FIR no. 431/00 u/s 341/323/34 IPC PS Sarojini Nagar to show that at the time of lodging of present FIR, a counter case against complainant Sh. D.K. Srivastav was also lodged in the same police station on 20.09.2000 regarding injuries caused by complainant to accused but it was thereafter compromised on 22.12.2003.
8. The counsel for accused has argued that the statement of complainant given before police shows that he had named four eye witnesses namely Sh. Ram Kumar, Sh. P.D. Yadav, Sh. Om Bir and Sh. Hari Shankar Pandey as the eye witnesses of the incident but in his statement before court dated 27.08.2007, he named one chowkidar Mithlesh Kumar, P.D. Yadav, Hari Shankar Pandey and Janardhan as the eye witnesses of the incident. The statement itself suggest that there is material discrepancy in the statement of complainant and he is himself not sure who were the persons present at the spot at the time of incident. Moreover, none of the eye witnesses have been examined by the prosecution to prove whether there were actually any eye witnesses of the incident who could substantiate the case of complainant that any dispute had actually occurred between complainant Page no. 5/8 FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar and accused.
9. The counsel for accused further argues that complainant has stated in his complaint that when accused disclosed him that he is in Delhi Police, he asked him to pay Rs. 100/ instead of Rs. 300/ as fine but complainant has failed to show any rule regarding reduction of fine in case of government employees. The counsel for accused has argued that actually the complainant wanted to keep Rs. 100/ with himself without issuing any receipt and the dispute occurred because of this fact which has been concealed by the complainant cleverly.
10. The defence counsel further argued that there are no signatures of IO or complainant at the site plan which shows that site plan may not have been made at the site of incident and it may have been prepared only at the police station subsequently. The counsel for accused has further pointed out towards permission u/s 195 Cr.P.C. granted by Sh. S.C. Sharma, Addl. Secretary (Enforcement), NDMC and pointed out that it is mentioned in the sanction letter that Sh. D.K. Srivastav is the only eye witness of the incident. Hence, the counsel for accused argued that there are many discrepancies in the case of complainant, which attack at the very root of the case.
11. Perusal of charge reveals that charge has been framed against accused u/s 332 IPC for causing simple injury to complainant but neither the complainant has stated in his statement dated 27.08.2007 that he had suffered any injury on the date of incident, nor any doctor has been examined to prove the injury, hence there is no sufficient evidence against accused regarding injury, therefore, accused is acquitted of offence u/s 332 IPC.
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FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar
12. The accused has been further charged u/s 353 IPC for assault / criminal force to public servant and u/s 186 IPC for voluntarily obstructing the complainant being a public servant from discharge of his official duties. However, the perusal of statement of complainant as PW2 dated 27.08.2007 reveals that there is no such allegation made by the complainant that the conduct of accused was of such a grave nature that complainant was obstructed from performance of his official duties. The complainant has only stated that when he asked accused to pay Rs. 100/, he stated that he had only Rs. 60/ and he will pay remaining amount through his friend and after sometime, the accused again came to the NDMC store at about 6 PM and asked to issue the receipt without depositing the fine, but when complainant refused to issue the receipt since it was over time, accused got furious and slapped him. This is the only allegation mentioned in the statement of complainant. This allegation does not reveal that accused had any intention to obstruct the complainant working as public servant from discharge of his official duties and it does not reveal that complainant was actually obstructed from discharge of his official duties as such public servant.
13. The counsel for accused has filed judgement of Hon'ble Supreme Court titled as D. Chattaiah and Anr. Vs. State of Andhra Pradesh AIR 1978 Supreme Court 1441 in which it has been stated that the intention to prevent or deter a public servant from discharging his official duties as such public servant is an essential ingredient of the charge u/s 332 IPC. By logical corollary, the same reasoning can be applied to section 186 IPC and section 353 IPC in which "voluntarily obstruction" of public servant in discharge of his public duties is essential ingredient to make out case u/s 186 IPC and section 353 IPC. Page no. 7/8
FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar
14. Neither the statement of the complainant nor the entire facts and circumstances of the case anywhere lead to conclusion that accused had any intention to obstruct the complainant working as a public servant in discharge of his official duties, rather the accused had gone to the NDMC Store only for the release of his scooter after payment of fine, and the entire facts and circumstances reveal that there was only a minor dispute between accused and complainant about the payment of fine and issuance of receipt but accused had no intention to obstruct the complainant in discharge of his official duties. Hence, the essential ingredient of intention and voluntariness on part of accused is missing in this case. As per criminal jurisprudence, every offence comprises two basic essential ingredients, i.e Actus Reus (the physical Act) and Mens Rea (guilty intention). Even if one of the ingredients is absent, no offence is made out. In present case also, though Actus Reus i.e incident of alleged slapping of the complainant was present, but Mens Rea i.e guilty intention of accused was conspicuously absent. The facts & circumstances of present case clearly show that accused had no intention to voluntary obstruct the complaint from discharge of his public funtions. The counsel for accused has filed another judgment of Hon'ble Supreme Court titled as Harender Narain Singh Vs. State of Bihar 1991 Cri.L.J 2666 in which it has been held in para 6 that basic rule of criminal jurisprudence is that wherever two views are possible on the evidence adduced in case of circumstantial evidence, the court should adopt the view which is favourable to the accused.
15. On the basis of above stated discussion, this court is of opinion that accused had no intention to obstruct the complainant in discharge of his official duties, hence he is acquitted of the offences u/s 186 and section 353 IPC. The Page no. 8/8 FIR no. 430/00; St vs. Sushil Kumar; PS: Sarojini Nagar accused is acquitted of all the charges in this case. Personal bond and surety bond of the accused will remain in operation till next six months for his appearance in Ld. Appellate Court if he is summoned. After six months from today, the bail bonds and surety bonds will automatically stand discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 30th MARCH 2011 MM07(SOUTH) NEW DELHI