Delhi District Court
State vs . V.P. Singh And Anr. on 28 June, 2014
IN THE COURT OF SH. AKASH JAIN, METROPOLITAN
MAGISTRATE06, PATIALA HOUSE COURTS, NEW DELHI
State vs. V.P. Singh and Anr.
FIR No : 153/03
U/s : 160/186/353/451/34 IPC
PS : Parliament Street
JUDGMENT
a) Sl. No. of the case : 68/02
b) Unique Case ID No. : 02403R0153122004
c) The date of commission of the
offence : 26.06.2003
d) Name of the complainant : Sh. R.D. Gupta
e) Name, parentage & address
of accused :1) V.P. Singh S/o late Sh. B.R. Singh
R/o House No. 139, II Floor, Dayanand
Vihar, Delhi92.
:2) Om Prakash S/o Bishan Lal R/o House
No. 368, Sector3, R.K. Puram, New Delhi.
f) Offences complained of :160/186/353/451/34 IPC
g) The plea of the accused : Pleaded not guilty
h) Final Judgment : Both the accused convicted u/s
186/353/34 IPC
i) Date of institution of case : 19.03.2004
j) Date of final arguments : 31.05.2014
k) Date of Judgment : 28.06.2014
BRIEF FACTS AND REASONS FOR THE DECISION:
1. In the present case chargesheet was filed by the State under Sections 353/186/34 IPC of Indian Penal Code, 1860 (hereinafter mentioned as 'IPC') against the accused persons Vijay Pal Singh and Om Prakash on CC NO.68/02 FIR No.153/03 Page no. 1 of 17 19.03.2004. The case of prosecution is that on 26.06.2003 at about 15:05 hours at P2/W1, Curzon Road, Barrack, K.G. Marg within the jurisdiction of Police Station Parliament Street, both the accused persons in furtherance of their common intention alongwith other persons (not arrested) voluntarily assaulted and used criminal force to deter Engineer R.D. Gupta, a public servant from performing his official work and public duties. Further it is the case of prosecution that on the above said date, time and place, both the accused persons in furtherance of their common intention obstructed Sh. R.D. Gupta, public servant in performance of his public duties.
2. On the basis of aforesaid chargesheet, Ld. Predecessor Court took cognizance of the offences under section 160/186/353/451/34 of IPC against both the accused persons. Both the accused persons had appeared before the court and documents were supplied to them in compliance of section 207 of Code of Criminal Procedure, 1973 (hereinafter mentioned as 'Cr.P.C.'). Arguments on charge were heard and vide order dated 27.02.2006, Ld. Predecessor Court ordered for framing of charge under section 186/353/34 of IPC against both the accused persons. Charge accordingly framed to which the accused persons pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
3. In support of its case, prosecution examined as many as eight witnesses. PW1 is complainant R.D. Gupta, who deposed that on 26.06.2003, he was working as Chief Engineer, CPWD at his office at B CC NO.68/02 FIR No.153/03 Page no. 2 of 17 2/W1 (First Floor), Curzon Road Barracks, K.G. Marg, New Delhi. On the said date while he was working at his office, at about 03:00 PM, around 20 persons entered his office all of sudden and overpowered 3 security personnel who were standing outside the office. He deposed that the said mob was continuously abusing him and four persons who were leading the said mob attacked him by hitting on his head, neck and temple. They also broke the glass of water placed on the table. They also damaged his specs and the telephone equipment which they threw from the table to the floor and thereafter they ran away. PW1 further deposed that when he was intimating about the said incident to DG (W) CPWD, he came to know that some similar people had gathered in the room of DG (W) at Nirman Bhawan gate no. 3. PW1 immediately alongwith his two officers and one security guard reached there and found one V.P. Singh, AE, PWD, Govt. of Delhi standing there who was leader of the mob and was identified by him. They all came out of vehicle and moved to catch him. Accused V.P. Singh ran towards gate no.3 of Nirman Bhawan and reached behind CISF security guard. PW 1 told the security guard that V. P. Singh had assaulted PW1 in his office and he be not allowed to run away till he is handed over to Delhi Police. Then PW1 went up to the room of DG (W) at first floor and when he came down he found that V.P. Singh, AE, PWD, Govt. of Delhi had slipped away. Another person who was part of the mob is accused Omprakash, AE of PWD, Delhi Govt. PW 1 correctly identified him in court. Complaint of PW1 is Ex. PW1/A. PW1 identified the case property which comprised of pieces of broken glass, paper slip pad made of plastic which was allegedly broken by the said accused persons and which was taken into possession CC NO.68/02 FIR No.153/03 Page no. 3 of 17 vide memo Ex. PW1/B. PW1 further identified one paper clip container and one piece of paper as Ex. P1 (colly).
4. PW2 is HC Rambir Singh, who deposed that on 26.06.2003, he was posted as Head Constable at police station Parliament Street from 04:00 PM to 12:00 midnight. He received rukka mark A at about 08:40 PM by SI Sanjiv Mandal and on the basis of same he registered formal FIR of this case. Carbon copy of which is Ex. PW2/A and his endorsement on rukka is Ex. PW2/B. After registration of FIR, PW2 handed over the same to SI Sanjiv Mandal.
5. PW3 is V.R. Rao, who deposed that on 26.06.2003, he was working as stenographer in the office of Chief Engineer R.D. Gupta. He deposed that on the said date at about 03:00 PM, some members of association came who were raising some slogan. They were 3040 in number. After some time, Chief Engineer R.D. Gupta came out of his room and asked security guard to remove them all and the members of mob left after 1015 minutes. Chief Engineer remained there for 23 minutes and thereafter he left. PW3 deposed that he had not seen anybody amongst the members of mob abusing any one. He had also not seen any item in damaged condition in the office of R.D. Gupta. He was not told about any facts of abusing and causing damage or manhandling by Mr. Gupta. PW 3 also could not identify any of the accused persons. Since, PW3 did not support the case of prosecution, Ld. APP for State sought permission to crossexamine him which was allowed. PW3 admitted that he was interrogated by the police CC NO.68/02 FIR No.153/03 Page no. 4 of 17 regarding this case. PW3 denied the suggestion of Ld. APP for State that he was won over by the accused.
6. PW4 is SI Sanjeev Mandal, who deposed that on 26.06.2003, he received complaint Ex. PW1/A from SHO for necessary action. After preliminary inquiry he made endorsement Ex. PW4/A on it and got formal FIR registered. He had carried out investigation and reached at the spot at B2/W1, Curzon Road Barracks, K.G. Marg but the office was found closed. On the next day he again visited the office and met with the complainant and made inquiries from him. He made the site plan at the instance of complainant which is Ex. PW4/B. He also seized the broken pieces of glass, paper slip pad container which were broken by the members of mob and which were produced by Mr. R.D. Gupta vide memo Ex. PW1/B. He recorded the statement of witnesses. He further formally arrested both the accused. Their arrest memos are Ex. PW4/C and PW4/D respectively. He also conducted personal search of accused Omprakash vide personal search memo Ex. PW4/E. He further requested the official concerned to provide statutory complaint u/s 195 Cr.P.C. which was provided to him as Mark A. After completion of the investigation challan was handed over by him to the SHO for trial. He correctly identified the case property which is Ex. P1. He further deposed that the site plan was prepared by him on the same day i.e. 26.06.2013.
7. PW5 is M.C. Bansal, who deposed that he was working in CPWD since 1977. On 26.06.2003, he was working as Superintending Engineer CC NO.68/02 FIR No.153/03 Page no. 5 of 17 (P&A) at K.G. Marg, New Delhi. On that day, at about 03:00 PM, he alongwith Mr. V.K. Mehta (the then Executive Engineer) were sitting in his room and were scrutinizing some tender documents. During that work he heard some slogans from outside. Since tender documents were important, therefore they decided to windup the documents first and later check the noise. Accordingly, they wound up the documents and put them in the Almirah and locked the same. PW5 further deposed that in the meantime door of his room was closed being the AC room. He further deposed that after about 5 minutes of hearing the noise he opened the door but did not find anyone but felt some uneasiness. There were no slogans at that time and then they moved towards Chief Engineer's room to ascertain what had happened there. He further deposed that when they entered the room of complainant Chief Engineer, he was found disturbed. The telephones in his room were lying on the floor. One of his spectacle was lying broken on the table and broken water glass pieces were lying on the table as well as on the floor. One paper holder was also lying broken on the table. One private security guard/ peon Ram Chander was clearing the table and floor. Chief Engineer Mr. Gupta told them that he was assaulted by some persons who had also abused him. Mr. Gupta also called up DG (W) CPWD on telephone and narrated the incident to him but it appeared that conversation was not completed and Mr. Gupta told both PW5 and PW6 V.K. Mehta to move to Nirman Bhawan in the office of DG (W) as he told that some such persons had also gathered in the office of DG (W). PW5 further deposed that thereafter he alongwith Mr. Mehta and a private security guard alongwith Sh. R.D. Gupta went to Nirman Bhawan in his official car. On CC NO.68/02 FIR No.153/03 Page no. 6 of 17 reaching gate no.3 at Nirman Bhawan they found some people standing at gate no.3. At this point, Sh. R.D. Gupta pointed out towards one person and raised alarm that he had assaulted him some time back in his office on the same day. Same thing was also told by complainant Mr. Gupta to the security staff present there, consequent to which they detained said person. Mr. Gupta then went to the office of DG (W) alone. After few minutes lot of people/ crowd came from upstairs and the person who was detained by the security staff slipped away. PW5 further deposed that person who had slipped away was having moustaches like Maharana Pratap and was of normal built. The witness/ PW5 though failed to identify any of the accused persons present in the court.
8. PW6 is V.K. Mehta, who deposed that he was working in CPWD since 1976. He further deposed on almost similar lines as PW5. He also failed to identify any of the accused persons but stated that the person apprehended by the security staff at the instance of complainant was having moustache.
9. PW7 is Ct. Vijay Rajak, who deposed that on 26.06.2003, he was posted at police station Parliament Street. He alongwith complainant R.D. Gupta and the IO reached at Curzon Road Barracks. The offices were found closed. The complainant pointed out the place of occurrence through the open place of the building to the IO. Next day at about 10:00 AM, he alongwith the IO reached the office of the complainant. The complainant obtained broken glass pieces and one broken pen stand. He signed the CC NO.68/02 FIR No.153/03 Page no. 7 of 17 seizure memo Ex. PW1/B. On 18.07.2003, the accused Om Prakash (correctly identified) was arrested by the IO vide memo Ex. PW4/D. Personal search memo of the accused was also conducted vide memo Ex. PW4/E.
10. PW8 is Vinod Kumar Malik, who deposed that he had been authorized by Special Director General to appear before the court to identify the signatures of late Engineer Sh. C.B. Lal as he worked with him in two capacities i.e. Superintending Engineer under the control of Chief Engineer Sh. C.B. Lal and Superintending Engineer, TLC under the control of Addl. Director General. His working period with Sh. C.B. Lal was about two and half years. PW8 stated that Sh. C.B. Lal had been his immediate boss in both the capacities he served. He identified the signatures on the complaint u/s 195 Cr.P.C. at point A. Complaint u/s 195 Cr.P.C. is Ex. PW8/A.
11. Despite various opportunities given by the court the prosecution could not examine any other remaining witnesses, as such, considering the fact that the present matter was more than 10 years old, the court decided to close prosecution evidence. Thereafter, statement of both the accused V.P. Singh and Omprakash u/s 281 Cr.P.C. r/w section 313 Cr.P.C. was recorded. Both the accused persons denied all the incriminating evidence against them and pleaded that they are innocent and falsely implicated in the present case. Both the accused persons did not lead any defence evidence, as such the matter was straightaway fixed for final arguments.
CC NO.68/02 FIR No.153/03 Page no. 8 of 17
12. Final arguments were heard on behalf of Ld. APP for state and the accused persons. After perusal of the record this court is of the view that in order to bring home guilt of the accused persons for the offences under section 353/34 IPC, the prosecution was required to prove following facts:
i) That the person i.e. complainant assaulted was a public servant;
ii) That complainant/ public servant was acting in the exercise of his duties;
iii) That the assault or criminal force used by accused persons against the complainant/ public servant :
a) was intended to prevent or deter him from discharging his duty as public servant, or
b) was used as consequence of anything done or attempted to be done by the said public servant in lawful exercise of his duties as such public servant.
13. In order to bring home guilt of the accused persons for the offences under section 186/34 IPC, the prosecution was required to prove following facts:
i) That obstruction to the complainant/ public servant was done by both the accused persons in furtherance of their common intention voluntarily; and
ii) The obstruction was done in discharge of public functions of complainant.
14. At the outset, factum of complainant being a public servant i.e. Chief Engineer, CPWD and having been working in his office while discharging his duties in the afternoon of 26.06.2003 is not disputed by the accused persons during entire trial. No contrary suggestion was given by either accused to any of the prosecution witnesses regarding designation of CC NO.68/02 FIR No.153/03 Page no. 9 of 17 complainant or nonperforming of official duties by him on the given date of incident. It was though argued by the accused persons that they had not obstructed or assaulted the complainant in his office as alleged. It was further argued that they were not part of the mob who allegedly entered the room of complainant.
15. It was argued on behalf of accused persons that there are various contradictions in the testimonies of prosecution witnesses. It was further argued that besides complainant/PW1 both the material witnesses i.e. PW5 and PW6 have failed to identify the accused persons in the court and also they categorically deposed that they had not seen the incident in question. As such, the alleged offences of assault and criminal force by accused persons are not substantiated. It was further argued that PW3 who was stenographer of complainant on the day of incident in question also did not support the case of prosecution. It was further argued that there are several lacunaes in complainant/ prosecution case as after the alleged incident of assault and use of criminal force happened against the complainant, police was not called immediately by the complainant. Also, no MLC was got prepared by the complainant regarding alleged injuries received by him.
16. With respect to the contentions made on behalf of accused persons, it was argued by Ld. APP for State that as per the testimony of complainant, the complainant was alone in his office/ room on 26.06.2003 when the accused persons alongwith several other persons came inside his room and bolted the door from inside and nobody could have seen the complainant CC NO.68/02 FIR No.153/03 Page no. 10 of 17 being beaten from the close doors. It was further argued that there was no occasion of preparation of MLC in this case as complainant was reported to be merely slapped by the accused persons on his neck, head and temple which did not require any medical treatment. It was argued that accused persons only intended to embarrass, insult and deter the complainant from discharging his duties as public servant. It was further argued that PW3 being stenographer of the complainant was sitting outside his office and could not have witnessed the alleged incident of assault which happened inside the office. Moreover, testimony of PW3 affirms the factum of mob having entered the office of complainant on 26.06.2003 at about 03:00 PM, as alleged by the complainant.
17. In response to the argument of accused persons that PW5 and PW6 who were the material witnesses of prosecution have failed to identify the accused persons, it is pertinent to refer to the relevant excerpts of their testimonies :
"........On 26.06.2003, I was working as Superintendent Engineering (P&A) at K.G. Marg, New Delhi. On that day at about 3:00 PM. I along with Mr. V.K. Mehta, the then Executive Engineer were sitting in my room and we were scrutinizing some tender documents. During that work I heard some slogans from outside. The door of my room was closed being the AC room. As the tendered documents are important therefore we decided to windup those documents........"
".........then we move towards Chief Engineers Room to ascertain what is happened. When we went inside his room, we found that Sh. R.D. Gupta, Chief Engineer was disturbed, the telephones were lying on the floor, one of the spectacle was lying broken on the table and broken water glass pieces CC NO.68/02 FIR No.153/03 Page no. 11 of 17 were lying on the table as well as on the floor. One paper holder was lying broken on the table. One Private Security Guard cum Peon Sh. Ram Chander was clearing the table and floor. The chief engineer Mr. Gupta told us that he was assaulted by some persons who had also abused him......."
"........Then I along with Mr. Mehta and a Private Security Guard along with Sh. R.D. Gupta, Chief Engineer went to Nirman Bhawan in his official car. On reaching gate no. 3 of Nirman Bhawan, which is the gate for entry to DG(W) Office, we found some peoples were standing at Gate No. 3 near Security Personnels. At this point Sh. R.D. Gupta pointed towards one person and raised on alarm that he had assaulted him some time back in his office on the same day. This thing was also told by him to the Security Staff standing there. And they detained him.........."
18. Now, it is well settled in the case of Shyamal Ghosh vs. State of West Bengal, (2012) 7SCC 646, that court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Minor inconsistencies or embellishments which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only the serious contradictions and omissions which materially affect the case of prosecution, have to be understood is clear contradistinction to mere marginal variations in statements of witnesses. (sic)
19. In the context of instant case, both PW5 and PW6 deposed in sync with each other and they corroborated the statement of complainant to the extent that certain persons on 26.06.2003 at about 03:00 PM entered the office/ room of complainant and later on the complainant was found CC NO.68/02 FIR No.153/03 Page no. 12 of 17 disturbed and articles on his table like telephone was lying on floor and water glass and paper holder were found broken. Merely the fact that PW5 and PW6 could not identify the accused persons in the court, is no ground to disbelieve and disregard their entire testimony.
20. With respect to the commission of assault and use of criminal force against complainant by accused persons who were alleged to have been leading the mob and were acting in furtherance of their common intention, testimony of complainant himself is vital. Nothing material could be culled out from the crossexamination of PW1/complainant as he stood his ground and his testimony remained unshaken. Complainant further correctly identified both the accused persons in the court. Hence, all the essential ingredients of offences in question are established by the prosecution beyond reasonable doubt.
21. It was lastly argued by Ld. Counsel for accused persons that prosecution failed to examine C.B. Lal who had reportedly sent complaint u/s 195 Cr.P.C. against both the accused persons for initiating their prosecution for the offences in question. Since, the complaint u/s 195 Cr.P.C. could not be properly proved, entire trial against the accused persons is vitiated. It was further argued that before prosecution of both the accused persons, who were public servants, prior sanction u/s 197 Cr.P.C. was imperative which is not obtained in the present case. As such, in terms of settled law, while affording protection u/s 197 Cr.P.C., both the accused persons are liable to be acquitted.
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22. With respect to the arguments made on behalf of accused persons, it may be noted that an application under section 311 Cr.P.C. for examining Sh. C.B. Lal was moved by Ld. APP for state during proceedings of the case which was duly allowed by the court. Sh. C.B. Lal though could not be examined as he reportedly died before recording of his testimony. In his place, PW8 who was duly authorized by Special Director General, came to court and proved the complaint u/s 195 Cr.P.C. as Ex. PW8/A by identifying signatures of C.B. Lal on complaint at point A.
23. In compliance of provisions of section 195 Cr.P.C. to launch successful prosecution against accused persons for offences punishable u/s 186/353 IPC, the complainant being a public servant, either should himself have made a complaint u/s 195 Cr.P.C. or should have preferred the complaint through a public servant to whom he was administratively subordinate. In this context reliance must be placed upon the case of State of U.P. Vs. Mata Bhikh and Ors., 1994 SCC (4) 95, wherein it was held by Hon'ble Supreme Court that, "A cursory reading of Section 195(1)(a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word 'subordinate' means administratively subordinate i.e. some other public servant who is his official superior and under whose administrative control he works."
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24. The complainant being working under administrative control of Sh. C.B. Lal, had preferred the complaint u/s 195 Cr.P.C. through him which is duly proved as Ex. PW8/A. Thus, mandatory stipulation of section 195 Cr.P.C. stands complied with.
25. With respect to the final leg of arguments on behalf of accused persons that prosecution failed to obtain prior sanction u/s 197 Cr.P.C before prosecuting them, it is imperative to refer to the relevant provision which is reproduced herein below:
197. Prosecution of Judges and public servants 1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction
a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;
2) ***** 3) ***** 4) *****
26. It has been held in the case of Romesh Lal Vs Naginder Singh (2006) 1 SCC 294, that sanction as required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith. On the other CC NO.68/02 FIR No.153/03 Page no. 15 of 17 hand, sanction is not necessary when the offence complained of has nothing to do with the discharge of his duty.
27. In S.A. Aziz Vs Pasam Hari Babu, 2003 Crlj. 2462 (AP), it was held that illegal detention or assault against a person by a police official would never be part of his official duty and therefore, sanction under Section 197 Cr.P.C. would not be required. In Dowlath Vs Dey District Forest Officer, AIR 1955 NUC 424, it was held by Hon'ble Madras High Court that it is no part of official duty to loose temper and abuse and assault or to do things far removed from capacity as a public servant. Emphasis had been laid in catena of judgments that there is no protection of sanction in respect of an act outside the path of duty or purported duty.
28. In the present case, no defence of protection of sanction u/s 197 Cr.P.C. had been taken by the accused persons during entire trial except at the stage of final arguments. Even otherwise, the acts of use of criminal force and assault complained against the accused persons, cannot be deemed to be part of their official duty or cannot be deemed to have been committed by them in discharge of their duties. As such, in lieu of facts of the case and above mentioned legal propositions, it is held that protection u/s 197 Cr.P.C. cannot be afforded to present accused persons.
29. Keeping in view the aforesaid findings, it is held that the prosecution has proved its case against the accused persons beyond reasonable doubt.
CC NO.68/02 FIR No.153/03 Page no. 16 of 17 The accused V.P. Singh S/o late Sh. B.R. Singh and Om Prakash S/o Bishan Lal are thus held guilty and are convicted for the offences u/s 186/353/34 IPC.
Accused persons be heard separately on the point of sentence on 10.07.2014.
Announced in the open Court (Akash Jain)
on 28.06.2014 Metropolitan Magistrate06,
Patiala House Court,
New Delhi
CC NO.68/02 FIR No.153/03 Page no. 17 of 17