Delhi District Court
In Re: State vs Mahesh And Anr on 6 June, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH
DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS MAHESH AND ANR
F.I.R. No: 101/05
U/s 186/353/332/34 IPC
P.S. Defence Colony
Date of Institution of Case : 17.01.2006
Judgment Reserved for : 02.06.2012
Date of Judgment : 06.06.2012
JUDGMENT:
(a) The serial no. of the case : 23/5/06
(b) The date of commission of offence : 23.02.2005
(c) The name of complainant : Dr. Pradeep Kumar
S/o Sh. Sohan Lal
Vaternity Officer, MCD
Office, South Zone, Green
Park, New Delhi.
(d) The name, parentage, of accused : 1. Mahesh s/o Jagan,
2. Kamal s/o Pappu, Both R/o 176B, Prajapat Nagar, Gautam Nagar, Delhi.
Present Address : as above FIR No.101/05 State Vs.Mahesh and anr 1/24 (e) The offence complained of : U/s 186/332/353/34 IPC (f) The plea of accused : Pleaded not guilty (g) The final order : Both accused Convicted u/s 186/353/34 IPC (h) The date of such order : 06.06.2012 Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 23.02.2005 at about 01.15 p.m. at in front of 176B, Prajapat Nagar, New Delhi within the jurisdiction of police station Defence Colony both accused persons in furtherance of their common intention voluntarily obstructed MCD officials including Dr. Pradeep Kumar i.e. the complainant and other public servants while they were discharging their public duties i.e. taking away the cattles from the illegal dairy. Furthermore, they assaulted and used criminal force to deter the MCD officials in execution of their duties and voluntarily caused hurt by pelting stones to the MCD official including Dr. Pradeep Kumar and thus thereby accused persons committed an offence punishable under Section 186/353/332/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide order dated 19.05.2006 charge u/s 186/353/332/34 IPC was framed against accused persons FIR No.101/05 State Vs.Mahesh and anr 2/24 to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused persons, prosecution examined 6 witnesses. After the PE was closed, statement of the accused persons was recorded u/s 313 Cr.P.C. wherein they claimed themselves to be innocent and having been falsely implicated in the case. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 HC Om Parkash deposed that on 23.02.2005 he was posted as DO at PS Defence Colony and on that day at about 03.10 p.m. on receipt of rukka through Ct. Ramesh sent by HC Pramod he registered the case vide FIR No. 101/05 i.e. Ex. PW1/A and made endorsement on the rukka vide Ex. PW1/B.
5. PW2 Jitender Singh deposed that on 23.02.2005 he was posted as a Cattle catcher, MCD Department, South Zone, Green Park, New Delhi and on that day he along with Dinesh and Dr. Pradeep and other reached at Prajapat Nagar, Gautam Nagar to catch the cattles. He deposed that some cattles were illegally tied in the room at Prajapat Nagar. He deposed that they loaded the illegal cattles in their MCD vehicles. He deposed that in the meantime some public persons started pelting stones on the their MCD staff while they were carrying the above said cattle in MCD vehicles and they tried to save themselves but Dr. Pradeep had received injuries in this incident with the stone which was FIR No.101/05 State Vs.Mahesh and anr 3/24 pelted by the crowd. He deposed that he does not know who had pelted stone and he did not disclose the name of same to the police. He deposed that his statement was not recorded by the IO. He deposed that he cannot identify the accused persons today who were pelting the stone at the spot. Ld. APP cross examined the witness after taking permission of the court.
6. During his crossexamination, the previous statement of the witness u/s 161 Cr.P.C. i.e. Mark A was read over and explained to the witness who denied having made any such statement to the police. He denied the suggestion that on 21.03.2005 at about 01.15 p.m. they reached at 176B, Prajapat Nagar, Gautam Nagar to catch the cattle at the dairy which was illegally run by dairy owner accused Mahesh and Kamal. He denied the suggestion that while they started catching the cattles at dairy both the accused started pelting stones with their associates on the MCD and police staff. He denied the suggestion that accused Mahesh and Kamal had caused injuries to Dr. Pradeep Kumar while they were catching the cattles at the spot. He denied the suggestion that he has been won over by the accused persons that is why he was deposing falsely and deliberately not identifying the accused. He denied the suggestion that his statement was recorded by the IO and he has disclosed the name of accused persons Mahesh and Kamal in his statement which was recorded by the IO. He denied the suggestion that both accused present in the court are the same FIR No.101/05 State Vs.Mahesh and anr 4/24 persons who were pelting the stones on their staff.
7. PW3 Dr. Pradeep Kumar Masson deposed that on 23.02.2005 as per the orders of Hon'ble High Court for removal of illegal dairy/stray cattles in the south zone area he along with his team and police from DCP office reached the spot i.e. 176B, Prajapat Nagar where a dairy was run by persons namely Rakesh and Mahesh which was an illegal dairy and was a nuisance in the locality. He deposed that when they reached there and started the action for the removal of cattles there, Mahesh and his associate whose name was later revealed as Kamal started throwing stones on them as a result of which he received injuries on his right shoulder. He deposed that they immediately called the PCR Van and police personnel apprehended both the accused persons who are present in the court and took them to the PP Gulmohar Park. He deposed that he gave his complaint which is Ex. PW3/A.
8. During his crossexamination, he stated that he along with his team reached the spot at about 1.00 pm. He stated that his team included around 15 MCD officials but he does not remember the name of every member as the matter is already seven years old. He stated that police also accompanied the spot and they included around 20 police personnels. He stated that no notice was served upon the accused persons prior to the action for removal of the dairy was taken by them. He voluntarily added that removal for illegal dairy was done FIR No.101/05 State Vs.Mahesh and anr 5/24 by them as per the orders of the Hon'ble High Court of Delhi so there was no need to serve any notice upon the accused persons. He admitted that many public persons gathered at the spot at the time of incident. He stated that one member of his team namely Jitender also got injured. He stated that PCR Van came to the spot after 1015 minutes of the incident. He stated that he was working since 2003 in the said department. He admitted that a Clerk namely Babu Ram was working in the same department and he was suspended on the complaint made by Rakesh who was the coowner of the dairy. He stated that no medical examination was got conduced by him. He again said that he had consulted MCD doctor regarding his injuries and got medical prescription from him. He does not know whether any medical examination was got conducted by Jitender who was also injured in the incident. He stated that they left the spot at about 2.00 pm. He stated that police recorded his statement which is Ex. PW3/A at PP Gulmohar Park. He stated that police also recorded the statement of Jitender and Dinesh at PP Gulmohar Park. He denied the suggestion that he was deposing falsely or falsely implicating the accused in the present matter as stones were thrown by the accused persons.
9. PW4 Sh. Dinesh Kumar, deposed that on 23.02.2005 as per the orders of Hon'ble High Court for removal of illegal dairy/stray cattles in the south zone area, he along with Dr. Pradeep Kumar and staff of MCD and police from DCP office reached the spot ie. 176B, Prajapat Nagar where a dairy was run by FIR No.101/05 State Vs.Mahesh and anr 6/24 persons namely Rakesh and Mahesh which was an illegal dairy and was a nuisance in the locality. He deposed that when they reached there and started the action for the removal of cattles there, Rakesh, Mahesh and their associate whose name was later revealed as Kamal started throwing stones on them, as a result of which Dr. Pradeep Kumar received injuries. He deposed that they immediately called the PCR Van and police personnel apprehended both the accused persons and took them to the PP Gulmohar Park and registered the FIR against the accused persons.
10. During his crossexamination, he stated that they reached the spot at about 1.15 pm. He stated that their team included around 1520 MCD officials. He stated that police also accompanied the spot but he does not remember how many police personnels accompanied them. He stated that he cannot say whether public persons had gathered at the spot at the time of incident or not. He stated that Dr. Pradeep Kumar had received injuries in the incident. He stated that PCR Van came to the spot after 1015 minutes of the incident. He stated that they left the spot at about 2.00 pm. He admitted that that he saw the accused persons throwing stones on the MCD team. He stated that police had not recorded his statement at the spot. He denied the suggestion that he was deposing falsely or falsely implicating the accused in the present matter as stones were thrown by the accused persons.
FIR No.101/05 State Vs.Mahesh and anr 7/24
11. PW5, HC Pramod Kumar deposed that on 23.02.2005 he was posted as Head Constable at PP Gulmohar Park and on that day, on receipt of DD entry no.20 he along with Ct. Ramesh and Ct. Surender reached the spot i.e. 176B, Prajapat Nagar where they met the complainant Dr. Pradeep Kumar, Deputy Director Veterinary Services, MCD who along with his staff and police personnel already apprehended the accused persons i.e. Kamal and Mahesh. He deposed that complainant gave a written complaint to him Ex. PW3/A. He deposed that complainant also handed over him the accused persons. Thereafter, he prepared the rukka Ex.PW1/B and handed over the same to Ct. Ramesh who took the same to PS for registration of FIR and after registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to him. He deposed that he prepared the site plan at the spot i.e. Ex. PW5/A. He deposed that thereafter, he arrested both the accused persons vide arrest memos Ex. PW5/B & C and conducted their personal search vide memos Ex. PW5/D & E. He deposed that he recorded the statement of all the witnesses u/s 161 Cr.P.C. at the spot. He deposed that accused persons were sent for medical examination. He deposed that he also got the sanction u/s 195 Cr.P.C. from the concerned authority to initiate the prosecution proceedings against the accused persons. He deposed that thereafter, he prepared the challan and handed over the same to the then SHO PS Defence Colony.
FIR No.101/05 State Vs.Mahesh and anr 8/24
12. During his crossexamination he stated that he along with Ct. Ramesh and Ct. Surender reached the spot at about 1.30 pm. He stated that when they reached at the spot Dr. Pradeep Kumar along with his staff and some police personnel were already there. He stated that some public persons also gathered at the spot. He stated that Dr. Pradeep Kumar gave his written compliant to him. He stated that Ct. Ramesh came back to the spot at about 2.45 pm. He stated that he cannot tell by what means Ct. Ramesh went to the PS and came back to the spot. He stated that they left the spot at about 5.00 pm. He denied the suggestion that he was deposing falsely or that falsely implicating the accused persons.
13. PW6, HC Ramesh deposed that on 23.02.2005 he was posted as Constable at PP Gulmohar Park. On that day, on receipt of DD entry no.20 he along with HC Pramod Kumar and Ct. Surender reached the spot i.e. 176B, Prajapat Nagar where they met the complainant Dr. Pradeep Kumar, Deputy Director Veterinary Services, MCD who along with his staff and police personnel already apprehended the accused persons i.e. Kamal and Mahesh. He deposed that Complainant gave a written complaint to HC Pramod Kumar Ex. PW3/A. He deposed that complainant also handed over the accused persons to the IO. He deposed that thereafter, IO prepared the rukka Ex.PW1/B and handed over the same to him which he took to PS for registration of FIR. He deposed that after FIR No.101/05 State Vs.Mahesh and anr 9/24 registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to the IO. He deposed that IO prepared the site plan at the spot Ex. PW5/A. He deposed that thereafter, IO arrested both the accused persons vide arrest memos Ex. PW5/B & C and conducted their personal search vide memos Ex. PW5/D & E. IO recorded his statement u/s 161 Cr.P.C. at the spot.
14. During his crossexamination, he stated that he along with HC Pramod reached the spot at about 1.30 pm. He stated that when they reached at the spot Dr. Pradeep Kumar along with his staff and some police personnel were already there. He stated that many public persons also gathered at the spot. He stated that Dr. Pradeep Kumar gave his written compliant to HC Pramod Kumar. He stated that he went to the PS at about 2.00 pm and came back to the spot at about 2.30 pm. He stated that they left the spot at about 4.30 pm. He stated that he does remember whether accused persons were sent for medical examination in his presence. He denied the suggestion that he was deposing falsely or that falsely implicating the accused persons.
15. I have heard the arguments advanced at bar by the learned defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the FIR No.101/05 State Vs.Mahesh and anr 10/24 prosecution in this case.
16. After going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar I am of the opinion that the prosecution has been able to bring home the guilt against both the accused persons as far as offence u/s 186/353/34 IPC is concerned.
17. It stands proved from the deposition of complainant Dr. Pradeep Kumar who was examined as PW3 and whose deposition was duly corroborated by other MCD officials and the police witnesses that on 23.02.2005 both the accused persons had voluntarily obstructed MCD officials including Dr. Pradeep Kumar from discharging their public/official duties by using criminal force against them while they were removing the cattles from illegal dairy at in front of 176B, Prajapat Nagar, New Delhi.
18. Complainant Dr. Pradeep Kumar was examined as PW3 and he categorically proved that on the date, time and spot as above while he along with other MCD officials and police personnels were removing stray cattles from the spot both accused persons who were present amongst the public which had gathered at the spot obstructed them from discharging their officials duty by pelting stones on them. He proved his complaint Ex. PW3/A which he gave to FIR No.101/05 State Vs.Mahesh and anr 11/24 the police in this regard and which formed the basis of present FIR as well as identified the accused persons as the perpetrators of the crime.
19. His testimony was duly corroborated by two more MCD officials i.e. Jitender Singh, the cattle catcher, MCD who was examined as PW2 and another cattle catcher Sh. Dinesh Kumar, who was examined as PW4. Both these prosecution witnesses proved the incident dated 23.02.2005 and consistently deposed against the accused persons and corroborated each other on material particulars. I find no flaw/inconsistency in their testimonies.
20. Further credence to the prosecution story was lend by PW5 HC Parmod Kumar and PW6 HC Ramesh who corroborated the claims of complainant and other MCD officials as well as proved the arrest of the accused persons at the instance of complainant from the spot vide documents Ex. PW5/A to D.
21. During the course of arguments, Ld. Defence counsel vehemently argued that prosecution has failed to prove its case against the accused persons. It was argued that no independent public person was joined in the investigation by the IO though admittedly numerous public persons had gathered at the spot at the time of alleged incident. It was argued that the prosecution is relying solely on the testimony of police officials and MCD officials who are hand in glove. It was argued that no conviction can be based upon the sole testimonies of the above FIR No.101/05 State Vs.Mahesh and anr 12/24 officials witnesses once there is no independent corroboration.
22. However, I do not agree with the above contentions of the Ld. Defence counsel.
23. I have no reasons to disbelieve the prosecution witnesses. No motive could be assigned to the complainant or other witnesses by the Ld. Defence counsel for false implication of the accused persons. There is nothing on record to show that the complainant or the investigating officer or the other prosecution witnesses were inimical to the accused persons or had any reasons/motives to falsely implicate them. Even the cross examination by the Ld. Defence counsel failed to impeach the credit of any of the prosecution witnesses.
24. As far as non joining of independent public witnesses is concerned, it is well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a par ticular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81).
25. The court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their FIR No.101/05 State Vs.Mahesh and anr 13/24 hands/desist from joining/assisting the investigation. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
26. In Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from public is prepared to suf fer any inconvenience for the sake of society. Reliance may also be placed upon the law laid down in Amar Singh V. Balwinder Singh (SC) 2003 (1) RCR Crim inal 701)
27. Further more, there is no rule of law that police official/official witnesses ought not to be believed/relied upon. Police official/official witnesses do not suffer from any disability to give evidence and their official capacity by itself does not create any doubt about their credit worthiness. They cannot be presumed to be less or more reliable then any other normal public witness. Reliance may be placed upon Izzazul V. State (Delhi) 2007 (4) RCR Criminal 315, Kala Singh v.
State of Haryana, (SC) 1995 A.I.R. (SC) 1948 and J
awahar v. State, (Delhi)
2007(4) R.C.R.(Criminal) 336.
FIR No.101/05 State Vs.Mahesh and anr 14/24
28. In the case at hand the testimony of complainant Dr. Pardeep Kumar is it self sufficient to nail the accused persons. I find no reasons why he would falsely implicate the accused persons. Though during the course of arguments Ld. De fence counsel had argued that the motive for falsely implicating the accused per sons was the suspension of one of the MCD employee namely Clerk Babu Ram on the complaint of Sh. Rakesh, brother of accused Mahesh. However it seems highly improbable that the complainant would hatch a conspiracy and the police officials would collude with him to falsely implicate the accused just to take re venge of the suspension of a clerk. Moreover if indeed the the MCD officials have colluded with the police officials and were seeking revenge of suspension of clerk Babu Lal then they would have given the complaint against/falsely implicat ed Rakesh and not the accused persons who are facing trial. Had revenge been the motive I fail to understand why they would spare Rakesh on whose complaint clerk Babu Lal was suspended and falsely implicate two innocent persons. Hence the motive aspect is completely ruled out being baseless and an af terthought to avoid the liability.
29. At this stage I would like to highlight the answers given by the accused persons during their examination u/s 313 Cr.P.C. Accused Kamal during his ex amination gave the following answer to question no. 1 as was put to him:
FIR No.101/05 State Vs.Mahesh and anr 15/24 "..... Dairy belonged to the elder brother of Mahesh i.e. Rakesh. On the day of incident, lot of crowd had gathered at the spot when the MCD and police came. When they were loading the cattles in the truck the pub lic became angry and started quarreling with MCD and police officials. I was also present there with Mahesh and the police arrested me though I had not done anything".
Accused Mahesh during his examination gave the following answer to question no. 1 as was put to him:
"......I was not running any illegal dairy. Diary belonged to my elder brother Rakesh who had around 340 cows. The dairy was run by him at 176B i.e. the place of question but I was not running the dairy. Lot of crowd had gathered at the spot when the MCD and police came. When they were loading the cattles in the truck the public became angry and started quarreling with MCD and police officials. I was also present there".
30. The above answers are admissible in evidence against the accused persons in view of sub clause 4 of section 313 Cr.P.C. and the law laid in cases titled as Mohan Singh v. Prem Singh, (SC) 2002(4) R.C.R. (Criminal) 842, Rattan Singh v. State of Himachal Pradesh, (SC) 1997 A.I.R. (SC) 768, Sh. Mith kalitha V. State of Assam 2006 Cr.l.J. 2570, FIR No.101/05 State Vs.Mahesh and anr 16/24 State of Rajasthan V. Ganesh Dass 1995 Cr.L.J. 25 (Raj.), Bishwas Prasad Sinha V. State of Assam 2007 (1) Crimes 147 (SC), Anthoney Disuja V State of Karnataka AIR 2003 SC 258, State of H.P. V. Wazir Chand AIR 1978 SC 315 and they go on to prove the presence of accused persons at the date, time and spot of incident. This itself rules out their false implication. It also corroborates the claims of the MCD officials i.e. the complainant and others that they were obstructed by the public persons and stones were pelted upon them while they were removing the cattles.
31. It was one of the arguments of the Ld. Defence Counsel that PW2 Jiten der turned hostile on the identity of accused persons which itself was fatal to the prosecution case i.e. casts serious doubts upon the prosecution story that it was the accused persons who had pelted stones or obstructed the complainant or other MCD officials. However, I find no merits in the contentions of the Ld. De fence Counsel.
32. The law is fairly well settled now in respect to the weightage to be at tached to the testimony of a witness who has been declared hostile. Evidence of hostile witness need not be totally rejected. It can be accepted to the extent his version is found to be dependable and is consistent with the case of prosecution FIR No.101/05 State Vs.Mahesh and anr 17/24 or defence. ( Middolla Harijana Thimmaiah @ Thimmappa v. State of A.P., (A.P.) (FB) 2005(1) R.C.R.(Criminal) 873).
33. In Balu Sonba Shinde v. State of Maharashtra, 2003 SCC (Crl.) 112 the Hon'ble Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. Similar observations were made in case titled as Khujji v. State of Madhya Pradesh, 1992(3) RCR(Crl.) 158 (SC) : 1991 SCC(Crl.) 916, Jodhraj Singh v. State of Rajasthan, (SC) 2007(3) R.C.R.(Criminal) 172 and Radha Mohan Singh @ Lal Saheb v. State of U.P., (SC) 2006(1) R.C.R. (Criminal) 692.
34. In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further held that these days it is not an uncommon practice that a witness is won over and he turned hostile.
35. Similarly in Nisar Khan @ Guddu v. State of Uttaranchal, (SC) 2006(1) FIR No.101/05 State Vs.Mahesh and anr 18/24 Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab, (P&H) (D.B.) 2005(2) R.C.R. (Criminal) 813 and Swaran Singh v. State of Punjab, (SC) 2000(2) R.C.R. (Criminal) 762.
36. In Shankar Mangelal Lokhande v. State of Maharashtra, (Bombay) 2000(4) R.C.R.(Criminal) 229 the court observed while convicting the accused despite PWs turning hostile that experience showed that witnesses by lapse of time are won over and resile from their earlier statements.
37. Though no doubt that in the case at hand PW2 Jitender failed to identify the accused persons as the perpetrators of crime however that by itself does not wash off/ efface his entire testimony. This witness consistently proved the incident of obstruction of MCD officials including the complainant and himself as well as pelting of stones on them while they were removing the stray cattles from the illegal dairy. This part of his testimony duly supports the deposition of complainant and other prosecution witnesses. Moreover I have already discussed above the testimony of complainant Dr. Pardeep Kumar is itself FIR No.101/05 State Vs.Mahesh and anr 19/24 sufficient to nail the accused persons. Nonetheless PW4 Sh. Dinesh Kumar as well as other prosecution witnesses corroborated his testimony on material particulars.
38. It was also argued by Ld. Defence Counsel that prosecution witnesses contradicted each other for example though complainant Pradeep Kumar claimed that his statement and that of PW2 and 4 was recorded at the Police station however the IO claimed that he recorded the statement at the spot. Similarly though HC Ramesh claimed that he came back to the spot at about 02.30 p.m. but HC Pramod claimed that HC Ramesh came to the spot at about 02.45 p.m. On the other hand the DO i.e. HC Om Parkash stated that he received the rukka at about 03.10 p.m. It was argued that these inconsistencies itself proved that prosecution witnesses were deposing or that accused persons have been falsely implicated. However I find no merit in the above submissions of the Ld. Defence Counsel. No doubt, there were a few discrepancies in the testimonies of PWs but it would be appropriate to say that they were natural and bound to occur on account of passage of time and lapse of memory. Human memories are apt to blur with passage of time. The incident occurred in the year 2005 and the deposition of prosecution witnesses was recorded in the year 2012 i.e. after a gap of around 7 years. After such a long time period a person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of FIR No.101/05 State Vs.Mahesh and anr 20/24 memory have to be given due weightage/ due allowance.
39. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v.
FIR No.101/05 State Vs.Mahesh and anr 21/24 State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 .
40. The law is well settled that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with un due importance. Trivial discrepancies ought not to obliterate an otherwise accept able evidence. One cannot come across a witness whose evidence does not contain some exaggeration or embellishments. Sometimes there could be even be a deliberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exaggerated account. Court can sift the chaff from corn and find out truth from the testimony of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confidence in mind of the court. In the case at hand the discrepancies as to the place where the statement was recorded or the discrepancies in the claims of witnesses as to the time of sending of rukka i.e. at 02.30 or 02.45 or 03.10 p.m. are too trivial in nature and do not raise any doubt upon the prosecution story.
41. It was also argued that the prosecution could not prove the injuries as sus tained by Dr. Pardeep Kumar which itself goes on to prove that he was deposing FIR No.101/05 State Vs.Mahesh and anr 22/24 falsely or else if he was injured as alleged he ought to have been medically ex amined by the IO. As far as this contention of Ld. Defence counsel is concerned it is correct to the extent that the prosecution could not prove the exact nature of injuries/amount of injuries received by Dr. Pradeep Kumar and hence there is no material to hold the accused persons guilty for commission of offence u/s 332 IPC. However merely because there is no MLC or other medical document to prove the injuries sustained by Dr. Pradeep Kumar, there cannot be any pre sumption that he was deposing falsely or that the entire prosecution story is a false and fabricated one. The reasons for the absence of any MLC or any medi cal document to prove the nature of injuries is that Dr. Pradeep was not inclined to get himself medically examined. In his complaint Ex. PW3/A he had stated/written as "myself received minor injury on my body for which I am not eager to get my medical exam. I find nothing wrong in it. It was totally up to Dr. Pradeep whether he wanted to get the medical treatment or not and merely the fact that he opted not to get himself medically treated/examined does not cast any doubt upon his deposition or the prosecution story as a whole.
42. Thus, in view of my above discussion both the accused persons are held guilty and convicted u/s 186/353/34 IPC However for reasons as discussed above they stand acquitted under section 332 IPC.
FIR No.101/05 State Vs.Mahesh and anr 23/24
43. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence. Announced in the open Court on 06.06.2012 (Gaurav Rao) MM/SD/ New Delhi.
FIR No.101/05 State Vs.Mahesh and anr 24/24 In Re: STATE VERSUS Mahesh and ors. FIR No. 101/05 U/s 353/332/186/34 IPC P.S. Defence Colony ORDER ON SENTENCE 30.06.2012 Present: Ld. APP for the State.
Convicts Mahesh and Kamal are present on bail along with their counsel.
Vide judgment announced on 06.06.2012 both accused persons have been convicted u/s 186/353 IPC.
The learned defence counsel submitted that convicts have been facing trial for the last more than 7 years and the same itself has been enough punishment for him. It was submitted that the convicts have their respective/ independent families including small children to look after and they are the sole bread earner in the family. It was also prayed the accused/convict be given benefit of section 360 Cr.P.C. i.e to release the accused persons on probation.
Per contra, learned APP has very vehemently argued that the act of the accused persons is unpardonable. It was submitted that the accused persons deserves no leniency least to release him on probation.
FIR No.101/05 State Vs.Mahesh and anr 25/24 After giving my thoughtful considerations to the submissions made at bar I am of the considered opinion that taking into account the overall facts and circumstances of the case it shall meet the ends of justice if both the accused persons are sentenced to undergo 3 months SI along with fine of Rs. 500/ each for offence u/s 186 IPC and further sentenced to undergo 6 months SI along with fine of Rs. 4500/ each for offence u/s 353 IPC. Both sentences to run concurrently. In case of failure to pay the fine they shall further undergo SI of 50 days.
Benefit of probation is not given to the accused persons as there is a rise in the incidents of public servants being obstructed from discharging their duties. Public persons are taking the law in their hands and there is a need to curb this tendency. No matter how much they are justified they cannot take the law in their hands. Strict action against those obstructing the public officers from discharging their duties shall have a deterrent effect upon the like minded people in the society and also boost the moral of the public servants so that they can work without any fear.
I order accordingly.
At this stage, an application u/s 389 Cr.P.C. has been moved by the accused/convicts for suspension of sentence. As the accused persons were on bail during trial they are admitted to bail on furnishing bail bond in the sum of Rs.
10,000/ with one surety of the like amount each for 30 days. Bail bonds FIR No.101/05 State Vs.Mahesh and anr 26/24 furnished considered and accepted.
A copy of this order be given to the convicts free of cost. File be consigned to Record Room.
Announced in the open court (Gaurav Rao) on 30.06.2012 MM/SD/Delhi FIR No.101/05 State Vs.Mahesh and anr 27/24 FIR No. 101/05 U/s 353/332/186/34 IPC P.S. Defence Colony 06.06.2012 Present: Ld. APP for the State.
Both accused on bail present today along with their counsel. Vide separate judgment announced in the open court today, both the accused have been convicted for offence u/s 186/353/34 IPC.
Let they be heard now on the point of sentence on 08.06.2012.
(Gaurav Rao)
MM/SD/Delhi
06.06.2012
FIR No.101/05 State Vs.Mahesh and anr 28/24