Delhi District Court
State vs . Sardar Manjeet Singh on 5 November, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. SARDAR MANJEET SINGH
FIR No. 147/1992
PS: MOTI NAGAR
U/S: 186/353/332 IPC
JUDGMENT
Sr. no. of the case : 1009/2
Unique Case ID no. : 0240IR0166722002
Date of commission of offence : 10.03.1992
Date of institution of the case : 15.09.1994
Name of the complainant : Sh. Ashok Kumar
Name of accused and address : Sardar Manjeet Singh
S/o Late Sh. Mohan Singh
R/o WZ-211, Hari Nagar
Ghanta Ghar, O/A Shop
No. 40,41, Rajouri Garden,
Bali Nagar, Delhi.
Offence complained of or proved : U/s 186/353/332 IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted for offence U/s
353 & 332 IPC. Acquitted
for offence U/s 186 IPC.
Date of judgment : 05.11.2014
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 10.03.1992 at about 02:50 PM at Shop No. 40/41 Raja Garden, Najafgarh Road, Bali Nagar, accused voluntarily obstructed Ashok Kumar, Rent Controller of MCD, West Zone, Rajouri Garden, who was was a public servant in the discharge of his public functions. The accused assaulted and used criminal force to complainant, a public servant namely Ashok in the execution of his duty as such public servant with intention to prevent him from exercising his duty and also caused hurt to him. Accordingly, after the investigation, FIR No. 147/1992, PS Moti Nagar Page 1/13 police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, charges U/s 186/353/332 IPC were framed against the accused by Ld. Predecessor of this Court, to which he pleaded not guilty and claimed trial. It is to be noted that in the charge at the place of section 353 IPC, the numerical 153 have been written, which is only a typographical error which has caused no prejudice to the accused as ingredients of Section 353 IPC have been specifically mentioned in the charge.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 Shri Ashok Kumar stated that he was working in MCD as Junior Auditor. It is stated by him that on 10.03.1992 he was working as rent collector in licencing and enforcement branch at west zone. It is further stated that he alongwith M.P. Singh, Sadhu Ram, Trilok Singh etc. reached at Najafgarh road to remove the encroachment alongwith the police staff and when they reached near shop no. 40/41, Najafgarh Road, where workshop was situated and the cars were parked at the road. It is stated that when they tried to lift the car, a quarrel took place between accused Manjeet Singh (this witness correctly identified the accused) and his staff. It is stated that as he was surrounded by the several persons and he was attacked with pech kash (screw driver) on his left leg. It is stated by him that he sustained injuries. He was rescued by the police and thereafter his statement Ex.PW1/A was recorded by the police. Accused was arrested and his personal search was conducted vide memo Ex.PW1/B which bears his signatures at point A. This witness was not cross-examined despite opportunity.
5. PW2 M.P. Singh stated that on 10.03.1992 he was posted as Licencing Inspector in West Zone MCD. On that day he alongwith Ashok Kumar, Rent Controller, S.Trilok Singh, Rent Controller and other staff and labours alongwith police staff of PS Moti Nagar were removing FIR No. 147/1992, PS Moti Nagar Page 2/13 the encroachment of Najafgarh Road, Raja Garden towards Moti Nagar.
It is stated that he then reached 40/41 Najafgarh Road, Bali Nagar on the footpath where there was a car under repair against 40/41 Bali Nagar when the same was not removed by the owner Manjeet Singh accused present in the Court, the same was lifted by a crane (towed away) with the help of hook, then Sardar Manjeet came there alongwith other persons and started pushing Ashok Kumar, Rent Collector and assaulted on his left leg with a screw driver on the upper portion of knees of Ashok Kumar. It is stated that Ashok Kumar received injuries. It is stated by him that accused was apprehended by the police and Ashok Kumar was taken to the hospital by the police. Then matter was reported to police for taking action against accused. Personal search memo of the accused is Ex.PW1/B. It is stated by this witness that they were doing the official duty and discharging official duty while accused Manjeet obstructed in their duty and used criminal force. It is stated by the witness that this incident took place at about 02:45 PM. In his cross- examination, it is stated by him that they had informed the police on 30.01.1992 through a letter to arrange the police force for 18.03.1992 for removing the encroachment. It is stated that they handed over the same to the PS Moti Nagar, however, this witness could not tell exact number of police officials which were with them. He also did not remember their names. It is stated that duty officer was present at the spot. It is stated that they departed from their office at about 11:00 AM and came to spot in MCD truck which was hired, but he could not tell number of the truck. It is stated that first they reached at PS Moti Nagar and then after police arrangement, the crane was called then they started to remove the encroachment. It is stated that Inspector Rajpal might be the SHO of PS Moti Nagar at that time. He could not tell number of the crane or that at how many places they removed the encroachment. It is stated by him that no other person had obstructed in their duty. It is stated that on seeing the MCD vehicle/ officials, the public generally used to remove their articles/ vehicles to save themselves from legal action. It is stated that he did not know accused FIR No. 147/1992, PS Moti Nagar Page 3/13 before the incident and there was no complaint against the accused. It is stated by him that he does not remember the number of cars which were going to be removed. He admitted that the said vehicle was an ambassador car which was under repair condition. It is stated by him that 4-5 persons came at the spot alongwith accused Manjeet Singh, however, no other persons except accused Manjeet Singh was arrested by the police. It is stated by him that accused was taken into police custody at the spot but writing work was done at the police station. It is stated by him that he does not remember whether accused was personally searched in his presence. It is stated by him that he recollected the facts from the case diary outside the Court to refresh his memory. It is stated by him that injured Ashok Kumar was first taken to the police station and then to the hospital.
6. PW3 Ct. Roop Narayan stated that on 10.03.1992 he was posted at PS Moti Nagar as Delhi Home Guard Constable. It is stated by him that on the instruction of the IO he took injured Ashok Kumar to DDU hospital where he was medically examined. It is stated by him that after medical examination he came back to the spot and handed over MLC to the IO. In his cross-examination, it is stated by him that he had taken injured to the hospital in a three wheeler, however, he does not remember the number of the three wheeler or name of the driver.
7. PW4 Inspector Ombir Singh stated that on 10.03.1992 he was posted at PS Moti Nagar. It is stated by him that he was on petrolling in Bali Nagar area at around 03:10 PM, where one Ashok Kumar and his companion met him and he got recorded their statement Ex.PW1/A. Thereafter, he alongwith Ashok Kumar went to PS Moti Nagar and handed over rukka to the duty officer which was prepared by him at the spot. The same is Ex.PW4/A. It is stated by him that he sent the accused to DDU hospital through Ct. Roop Naryan for medical examination. It is stated by him that he prepared site plan Ex.PW4/B at the instance of injured Ashok Kumar. It is stated by him that he recorded the statement of one M.P. Singh and other MCD officials. It is further stated that accused was found present at the spot and arrested FIR No. 147/1992, PS Moti Nagar Page 4/13 at the instance of the complainant and his jamatalashi memo was prepared. It is stated by him that no weapon of offence could be recovered. It is stated that he made request to MCD for procuring the complaint U/s 195 Cr.P.C against the accused. In his cross- examination, it is stated by him that he does not remember when he left the PS Moti nagar for patrolling. He does not remember the entry made in DD register regarding the same. It is stated by him that he reached the spot when the quarrel was over. It is stated by him that injured Ashok Kumar met him at the spot i.e. Shop no. 41, Bali Nagar. It is stated by him that only Mr. Ashok Kumar was injured as he had received injury in his leg.
8. PW5 Sardar Trilok Singh, UDC, MCD stated that on 10.03.1992 he was working as Rent Collector. On that day he alongwith one Sh. Ashok Kumar rent collector and other staff of MCD, west Zone were present at Najafgarh road after receiving the authority letter alongwith the police and were removing the unauthorized encroachment on Najafgarh Road. When they reached at Bali Nagar, Raja Garden, Najafgarh Road at Shop no. 40-41, they found a car under repair on Najafgarh Road. They asked Manjeet Singh who was the owner of the shop no 40-41 to remove the said car. But he did not remove the car. On his refusal to remove the car they put the hook of the crane with the car. On this the accused Manjeet Singh started quarreling and started pushing him and Ashok kumar. Accused Manjeet also hit Ashok Kumar with a screw driver on his leg as a result of which he sustained injuries. Some other workers were also present with the accused at that time. They all including this accused Manjeet obstructed them from doing their official duty and assaulted them in which Ashok Kumar sustained injuries. Police was also with them and present case was got registered and accused was arrested by the police. The accused was personally searched vide memo Ex.PW1/B bearing signatures of this witness at point C. In his cross-examination, he failed to remember if some sign board was affixed on the shop. It is stated that they did not ask name of the workers working in the shop.
FIR No. 147/1992, PS Moti Nagar Page 5/139. No other PW was examined hence PE was closed.
THE DEFENCE :
10. Statement of accused U/s 313 Cr.P.C was recorded twice. Firstly on 24.07.2000 and again on 16.08.2010 as after first statement of accused, PW3, PW4 & PW5 were examined. In his statement dated 24.07.2000, it is stated by the accused that he has been falsely implicated in the present case. It is stated that he did not assault the victim. No weapon of assault was recovered from him. It is stated that at the material time, he was not having any car repair shop at 40 Raja Garden, Najafgarh Road, rather he was running the business of manufacturing tractor parts. In his second statement dated 16.08.2010, it is again stated by him that he has been falsely implicated in the present case. It is stated by him that he was not present at the spot and was not arrested from the spot. It is stated that he was called by the beat Constable and was taken to PS at about 06:30 PM and them the present false case was registered. Accused opted to lead defence evidence and examined Sh. Jagdish Singh as DW1 and Sh. Pavitar Singh as DW2.
11. It is stated by DW1 Sh. Jagdish Singh that accused is known to him for last 40 years being neighbour. It is stated that on 10.03.1992 quarrel took place between the MCD officials and brother of the accused namely Gurmit Singh and also workers of accused Manjeet Singh. It is stated that at that time, accused was running an auto part manufacturing unit at 40 Raja Garden, New Delhi. It is stated that this witness immediately went to the place of occurrence but accused was not present at the spot. It is stated that no one had suffered injuries in the said quarrel. In his cross-examination, it is accepted by him that on 10.03.1992 the MCD officials alongwith staff were on official duty and were removing the encroachment of Najafgarh Road- Raja Garden towards Moti Nagar. It is stated by him that its only 4-6 months back to the date of this evidence he came to know that accused Manjeet Singh is involved in the present case. It is stated that accused had never told FIR No. 147/1992, PS Moti Nagar Page 6/13 him regarding his involvement in the present case since 1992 till 4-6 months prior to the date of evidence (i.e. 04.05.2011). He denied the suggestion that he is deposing falsely to save the accused.
12. It is stated by DW2 Sh. Pavitar Singh that accused is known to him for last 40 years. It is stated that he came to know that on 10.03.1992 quarrel took place between MCD officials and brother of the accused as well as workers of the accused. It is stated by him that he reached the spot when quarrel was over and MCD official was present at the spot. No other DW was examined and DE was closed.
THE ARGUMENTS:
13. Ld. APP for state has argued that eye witnesses have supported the prosecution and their testimony remained unrebutted. That on a combined reading of their testimony, offences U/s 186/353/332 IPC are proved beyond doubt.
14. On the other hand, Ld. Counsel for accused has argued that accused has to be acquitted for all the offences as complaint U/s 195 Cr.P.C has not been proved on record, hence cognizance for offence U/s 186 IPC became bad in law and will not succeed. Consequently, the charges U/s 353 IPC and 332 IPC will also fail as all the offences had occurred from a single instance. To support his contentions, Ld. counsel has relied on following cases, Ashok & Ors. Vs. State (M.P. High Court) (1987 Cri LJ 1750) and Radhey Shyam Gupta Vs. State AIR 1968 Allahabad 342 (Vol.55, C.85) wherein it was held that trial for the offences U/s 186 and 353 of the IPC without a special complaint as required U/s 195 (1) (a) (i) of Cr.P.C be illegal is vitiated and deserves to be quashed.
15. Ld. defence counsel has also argued that even otherwise prosecution has failed to prove its case beyond reasonable doubts as the weapon of offence i.e. the screw driver could not be recovered by the police. It is also stated that alleged incident had taken place at 02:30 PM but MLC of the victim was prepared at 07:15 PM i.e. with the delay of 5 hours which is unexplained. It is further stated that while at FIR No. 147/1992, PS Moti Nagar Page 7/13 the time of removal of encroachment, police was present with MCD official, in such situation the delay in preparation of MLC and non- recovery of weapon of offence creates a serious dent in the case of prosecution. It is also argued that no other public person or police official who were present at the time of incident have been cited as witness in the present case.
THE FINDINGS:
Offence U/s 186/332/353 IPC:
16. Arguments led by Ld. APP for State and Ld. Defence Counsel are heard. The evidence and documents on record are carefully perused.
17. The prosecution in this case had to prove the following :
1. Firstly, the injured Ashok Kumar was a public servant and was discharging his public function at the time of incident;
2. Secondly, that the accused Manjeet Singh had voluntarily obstructed complainant Ashok Kumar while he was discharging his public function;
3. Thirdly, the accused Manjeet Singh had assaulted and used criminal force against complainant Ashok Kumar to deter him from discharging his public function;
4. Fourthly, in doing so accused inflicted an injury in the leg of the complainant Ashok Kumar.
18. In the present matter the factum of the quarrel between MCD officials and some local persons specifically brother and employees of the accused is not disputed. It is also not disputed that at the time of incident MCD officials were on official duty and were removing the encroachment at the spot as DW1 has deposed regarding this fact. All the prosecution witness have also deposed that at the time of incident they were discharging their public function by removing encroachment from the public road. There are only two defences raised by the defence side, first is a technical one and the other one is factual. The first defence raised by defence side is that the complaint U/s 195 Cr.P.C has not been proved on record, therefore, the trial for offences U/s 186, FIR No. 147/1992, PS Moti Nagar Page 8/13 332 and 353 IPC became illegal is vitiated and deserves to be quashed. The second defence is that the accused was not running any repair shop and was in fact not present at the spot at the time of incident. This Court will decide both the defences one after another.
19. It is mandated by Section 195 of Cr.P.C that no Court shall take cognizance of any offence punishable U/s 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is admitted position in the present matter that the complaint U/s 195 Cr.P.C has not been proved on record as Administrative Officer, MCD West Zone Sh. Krishan Kumar Bhardwaj, who made the complaint U/s 195 Cr.P.C has not been examined in prosecution evidence. Neither the complaint U/s 195 Cr.P.C has been proved on record by secondary evidence. This is to be noted that on 08.02.2012 Ld. predecessor of this Court had allowed an application U/s 311 Cr.P.C moved by the then Ld. APP to examine MCD (West Zone) Official to prove the complaint U/s 195 Cr.P.C. Accordingly, summons were issued, however, it was observed by the Court on 05.05.2012 that as per the report on summons, it was reported that no person is available in MCD who can identify or verify the signature or the handwriting of Sh. K.K. Bhardwaj. Consequently, the PE was closed. Hence, the complaint U/s 195 Cr.P.C remained not proved. It is argued by Ld. APP for State that the failure to prove the complaint U/s 195 Cr.P.C would only vitiate trial in respect of offence punishable U/s 186 IPC, but the trial cannot be vitiated in respect of offence U/s 332 & 353 IPC as no formal complaint U/s 195 Cr.P.C is required for taking cognizance for offences punishable under these sections. On the other hand, it is argued by Ld. defence counsel placing reliance on Ashok & Ors. Vs. State and Radhey Shyam Gupta Vs. State (Supra) that trial for the offences U/s 186, 332 and 353 of the IPC without a special complaint as required U/s 195 (1) (a) (i) of Cr.P.C be illegal is vitiated and deserves to be quashed. The legal proposition as stated by Ld. Defence counsel does not hold good in view of the FIR No. 147/1992, PS Moti Nagar Page 9/13 landmark decision of Hon'ble Supreme Court passed by a three judges bench in a case titled Durgacharan Naik And Ors vs State Of Orissa, 1966 AIR 1775, wherein it was held:-
"It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient 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 Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."
20. The above stated principle of law reiterated by Hon'ble Supreme court in Pankaj Aggarwal VS. State of Delhi, LAWS(SC)-2001-3-49, wherein it was held:-
"in view of the judgment of this Court in AIR 1966 SC 1775 where the court has analysed the provisions of Section 353,Indian Penal Code and 186,Indian Penal Code and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case FIR No. 147/1992, PS Moti Nagar Page 10/13 in relation to the provisions of Section 353,Indian Penal Code would equally apply to the provisions of Section 332 of the Indian Penal Code."
21. On the basis of above stated landmark judgments of Hon'ble Supreme Court it has been established that non filing of special complaint under section 195 Cr.P.C will not vitiate proceeding in respect of offence under section 332 and 353 of IPC. However accused is entitled for acquittal in respect of offence under section 186 IPC, as the special complaint under section 195 Cr.P.C has not been proved on recored.
22. The second defence of the accused that he was not present at the spot is not tenable due to following grounds:-
a) Complainant/injured Ashok Kumar was not cross-examined despite opportunity, hence his testimony remained unrebutted. This witness correctly identified the accused. It is also stated by this witness that he was attacked with a pechkas on his left leg.
b) PW2 M.P. Singh who was the eye witness also stated that accused Manjeet came there and started pushing complainant Ashok Kumar and also assaulted on his left leg with a screw driver. Thus, this witness also correctly identified the accused Manjeet Singh and have vividly described the entire incident. Even in the cross-examination of this witness Ld. defence counsel could not extract any contradiction.
c) PW5 Sardar Trilok Singh also correctly identified the accused Manjeet Singh, present in the Court and also stated that accused Manjeet started quarrel and started pushing him and complainant Ashok Kumar. This witness also stated that accused Manjeet hit on Ashok Kumar with a screw driver. Even in the cross-examination of this witness Ld. defence counsel could not extract any contradiction.
23. Thus from the unrebutted testimony of PW1 and the testimonies of PW2 and PW5, the identity of the accused as the perpetrator of the crime has been established beyond reasonable doubt. Since, the accused was arrested on the very same day from the spot on the pointing out of the complainant and other witnesses, hence non-
FIR No. 147/1992, PS Moti Nagar Page 11/13conducting the judicial TIP would not be detrimental to the case of prosecution.
24. It is also argued by Ld. defence counsel that the injury suffered by the victim have not been proved on record as his MLC has not been proved on record. It is also stated that PW1 complainant has not stated in his evidence that he was medically examined at the hospital. It is correct that MLC of the victim has not been formally proved on record, however, PW1 (complainant/victim) has categorically submitted that he received pechkas injuries in his left leg. His testimony has been corroborated by the testimony of PW2 and PW5, who have also deposed on the same lines. His testimony also found support from the evidence of police witness PW3 and PW4 as it is stated by PW3 Ct. Roop Narayan that at the request of IO he had taken the victim to DDU Hospital where he was medically examined. Ld. defence counsel had given a suggestion to PW4 IO Inspector Ombir Singh that injured Ashok Kumar was not injured in this incident and his foot was already injured due to pinching of shoe. From this suggestion, it appears that the presence of injury was not disputed on behalf of defence. It is also to be noted that original MLC which was prepared at the request of IO is on record, though the then Ld. APP failed to exhibit the same. Since, the injured and all the witnesses have stated that injured had received injury in his leg due to a pechkas blow given by the accused, hence the factum of injury is proved beyond reasonable doubt. However, the nature of the injuries will be assumed as simple as special ingredients required to prove that injury was grievous are not on record.
25. The fact that weapon of offence i.e. the screw driver was not recovered by the police officials or that the MLC was prepared after five hours would not destroy the case of prosecution in toto. Further, it is established principle of law that the complainant/victim shall not suffer due to the conduct of the IO and the accused shall not be allowed to take benefit of the faulty investigation of the IO. It has been held by the Hon'ble Supreme Court in case titled as Ganga Singh Vs. State of Madhya Pradesh (2013) 7 SCC 278 that:
FIR No. 147/1992, PS Moti Nagar Page 12/13"The settle position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the Court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt."
26. In the present matter, the statement of injured / complainant and other eye witness is consistent with the evidence of other witnesses i.e the police officials as well as the medical evidence.
27. In the case in hand, this Court found the testimonies of PW1, PW2 and PW6 absolutely credit worthy and truthful. It is to be noted that there was no motive for the complainant and other witnesses to falsely implicate the accused. Hence, on the basis of above stated evidence, in the considered opinion of this court the prosecution is able to prove its case on record beyond reasonable doubt. However, accused has to be acquitted for offence punishable U/s 186 IPC, as formal complaint U/s 195 Cr. P.C could not be proved on record.
28. The testimonies of PWs are coherent and consistent and are implicating the accused. Thus, in the considered opinion of this Court, all the ingredients of Section 332 & 353 IPC are satisfied. As such accused Sardar Manjeet Singh is convicted for the offences U/s 332 & 353 IPC.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 05.11.2014 MM-04 (WEST)/DELHI
Containing 15 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 147/1992, PS Moti Nagar Page 13/13