Delhi District Court
State vs . Rafiq Etc on 13 December, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Presided by: Ms. Vasundhara Azad
State Vs. Rafiq Etc
FIR No. 64/2009
Police Station: Jaitpur
Section: 186 /353/332/34 IPC
1. Cr Cases of the case : 89445/2016
2. Date of commission of offence : 26.03.2009
3. Date of institution of the case : 26.05.2009
4. Name of the complainant : SI Dara Singh
(1) Shefali Begum W/o Mohd Babul
R/o H.No.746, Madanpur Khadar, Phase-
III, New Delhi.
(2)Mohd. Shahjan
S/o Mohd. Rustam
Name, parentage and address of the
5. : R/o H. NO. 599, Madanpur Khadar,
accused persons
Phase-III, New Delhi.
(3) Poli Begum
W/o Mohd. Sahid@ Bade
R/o H.No.797, Madanpur Khadar, Phase-
II, New Delhi
6. Offence complained or proved : U/s. 186/353/332/34 IPC
7. Plea of accused persons : Pleaded not guilty
All accused acquitted u/s. 186 IPC;
Accused Shahjan convicted u/s.332/353
IPC and acquitted of offence u/s. 186 IPC;
8. Final order :
Accused Poly Begum and accused Shefali
Begum convicted u/s. 353/34 IPC and
acquitted of offence u/s. 332/186 IPC
9. Date of final order : 14.12.2018
State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 1 of 9
JUDGMENT
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, it is the case of the prosecution that on 26.03.2009 at about 11.15PM at Raj Nagar Phase-III, Madanpur Khadar within the jurisdiction of PS Jaitpur accused Shahjan, Poli Begum and Shafali Begum in furtherance of their common intention along with accused Shoid and accused Rafiq (both P.O.) voluntarily obstructed, assaulted and caused hurt to police officials of PS Jaitpur i.e. Ct. Rewti Kant, Ct. Dharmender and SI Dara Singh with an intention to deter them from discharging their duties and are thereby guilty of offences under S. 186/353/332 IPC.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 16.11.2016 accused persons were charged with offences under Sections 186/353/332/34 IPC to which accused persons pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. Prosecution has examined seven witnesses in order to prove its case. In brief, testimonies of the prosecution witnesses are as follows:
(a) PW1 SI Dara Singh is the complainant in the present case who has deposed that on the intervening night of 26.03.2009 at about 11.00PM at PS Jaitpur he received secret information that offender named Ripin in FIR No.32/09 is present at marriage party in phase-III MPK JJ colony Jaitpur and upon this information he along with Ct. Rawti Kant and Ct. Dharmender reached the marriage venue. Upon State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 2 of 9 reaching, many persons started pelting stones upon them, as a result of which Rippin ran away from the spot. Thereafter, accused Rafiq, Shahjan and Shoib were apprehended by SI Dara Singh from amongst the persons who were pelting stones on them. PW1 further deposed that when Rafiq, Shahjan and Shoid were in his custody, accused Poli Begum and accused Shefali Begum tried to release them from their custody. PW1 has proved following:
(i) arrest memo of accused Rafiq as Ex-PW1/A;
(ii) arrest memo of accused Shahjan as Ex-PW1/B;
(iii) personal search memo of accused Shehzad and accused Rafiq as Ex PW1/C and Ex-PW1/D respectively;
(iv)statement to ASI Rajpal as Ex-PW1/E;
(v) rukka as Ex-PW1/F; and
(vi)site plan as Ex-PW1/G
(b) PW2 SI Rajpal Singh has deposed along the lines of PW1 and has stated that he prepared rukka already Ex-PW1/F which was handed over to Ct. Karan Singh for registration of FIR.
(c) PW3 ASI Ram Kumar is the duty officer who has proved copy of FIR as Ex-
PW3/A.
(d) PW4 Rewti Kant has deposed along the lines of PW1 and has correctly identified accused Shefali and Poli Begum in court.
(e) PW5 Sh. Manoj Kumar has deposed that on 27.03.2009 at about 12.00-12.30AM, he found 2-3 police officials present at the spot upon whom some public persons were pelting stones and that these officials had apprehended one person. PW5 has also deposed that two ladies came and hit the police persons as a result of which apprehended person managed to flee away from the grip of police officials. In cross-examination of Ld. APP, PW5 has correctly identified accused Poli Begum and Shefali as aforesaid two ladies.
(f) PW6 ASI Karan Singh has deposed that he reached the spot of incident on 27.03.2009 pursuant to receipt of DD NO.3A.
(g) PW7 ASI Dharmender Kumar has deposed along with lines of PW1 and has State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 3 of 9 correctly identified accused persons namely Poli Begum, Shahzan and Shefali and other accused persons.
STATEMENT / DEFENCE OF THE ACCUSED
4. Thereafter, PE was closed and statement of accused persons were recorded under section 313 Cr. PC wherein all the incriminating evidence/documents were put to them one by one, they denied all as incorrect and submitted that they were innocent and had not committed alleged offence. Accused persons opted not to lead defence evidence.
ARGUMENTS
5. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of the accused persons and that they be convicted for offences under Section 186/353/332/34 IPC. On the other hand, it has been argued by the learned counsel for accused persons that accused persons are innocent as there is no evidence, which will prove their guilt to the hilt.
ANALYSIS AND FINDINGS
6. I have heard the arguments addressed by the Ld. APP and the Ld. Counsel for the accused persons and perused the documents on record carefully. Ld. APP for the State has argued that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused persons. On the other hand, Ld. Counsel for the accused has canvassed that the accused persons have been falsely implicated which is evident from the discrepancies in the statement of prosecution witnesses.
7. The accused persons are charged with sections 186/332/353 IPC.
Section 186 IPC reads as: Obstructing public servant in discharge of public State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 4 of 9 functions Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both.
There is a bar of taking cognizance of the offence u/s 186 IPC which is provided u/s 195 (1) (a) Cr.P.C which says that;
(1) No Court shall take cognizance
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
8. Therefore, as per Section 195 of Cr.P.C. cognizance of the offence under section 186 IPC may be taken only on the complaint of the public servant or his superior. One report under section 195 Cr.P.C. is attached with the file but prosecution has not proved the same. Victim/public servant Ct. Rewti Kant, Ct. Dharmender and SI Dara Singh have not deposed in their evidence that they had filed the report/complaint under section 195 Cr.P.C. before this Court. No witness of the prosecution has tendered the said report in evidence. Hence, prosecution has failed to prove the said complaint and therefore, accused persons cannot be held guilty for the offence under section 186 IPC.
9. Section 332 IPC reads as: Voluntarily causing hurt to deter public servant from his duty Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
10. Section 353 IPC reads as: Assault or criminal force to deter public servant from State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 5 of 9 discharge of his duty Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
11. PW1 SI Dara Singh has in his testimony stated that he along with Ct. Rewti Kant and Ct. Dharmender had gone to the spot of incidence to apprehend accused Rippen who was an alleged offender in FIR no.32/09 PS Jaitpur and with respect to whom information had been received from a secret informer that he was present at the spot of incidence to attend a marriage party. Further, PW 1 has also specified in his testimony that they had proceeded to the spot of incidence to apprehend Rippen vide DD no. 61B, which is ExPW1/ H and that they were in uniform on the date and time of the incident. Testimony of PW1 in this regard has also been corroborated by testimonies of PW4 HC Rewti Kant and PW7 ASI Dharmender who have deposed along similar lines. There is nothing contradictory to that effect which has come forth in the testimonies of the prosecution witnesses. In my considered view, keeping in view the facts and circumstances of the case as well as the evidence that has come on record, there is no reason to disbelieve the testimonies of the concerned police officers, i.e. PW1 SI Dara Singh, PW4 Ct Rewti and PW7 Ct. Dharmender that they were on duty on the date and time of the incident. Therefore, the defence taken on behalf of the accused persons that there is no evidence to show that Ct. Rewti Kant, Ct. Dharmender and SI Dara Singh were on duty on the date of this incident does not hold merit.
12. Given that the air has been cleared on the aspect as to whether Ct. Rewti Kant, Ct.
Dharmender and SI Dara Singh were on duty on the date and time of the incident, what needs to be now examined is whether the accused persons are guilty of offence u/s. 332 IPC and u/s. 353 IPC. Addressing the charge u/s.332 IPC, it is to be noted that as per the testimony of PW1 SI Dara Singh, medical examination of only Ct. Rewti and Ct.
State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 6 of 9 Dharmender was done whilst PW1 SI Dara Singh refused medical examination on the ground that no severe injuries were sustained by him. MLCs of Ct. Dharmender and Ct. Rewti, which state that Ct. Dharmender and Ct. Rewti sustained simple injury have been admitted by the accused persons under s.294 CrPC as Ex P/A/1 and Ex.P/A/2 respectively. Further, although it has been alleged that hurt was caused to all the three above named police officers by the accused persons while they were discharging their duties as public servants, as per the testimonies of the prosecution witnesses the concerned police officials were being pelted by stones by accused Rafiq, Shahjahan and Soid and the role of accused Poly Begum and Shefali Begum was confined to the extent of using criminal force in order to ensure that the apprehended stone pelters being Rafiq, Shahjahan and Soid are released.
13. The star witnesses of prosecution are the injured persons/ PW-1 SI Dara Singh, PW4 Ct Rewti and PW7 ASI Dharmender. The testimonies of these witnesses have remained consistent and the defence has not been able to shake the veracity of their statement or to impeach their credibility. The testimony of remaining witnesses have remained consistent and there is no major discrepancy in the testimony of prosecution witnesses.
14. The discrepancies in the testimonies of the prosecution witnesses pointed out by ld. Counsel for the accused persons are in my reasoned opinion, minor in nature and do not hit at the case of the prosecution. The apex court in Yogesh Singh vs. Mahabeer Singh & Ors. [Criminal Appeal No. 1482 of 2013] observed that, "minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 7 of 9 be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness".
15. PW1, PW4 and PW 7 have correctly identified all the three accused persons during their testimonies in court. All the material witnesses being the police officials/injured persons themselves, i.e. PW1 SI Dara Singh, PW4 HC Rewti Kant and PW7 ASI Dharmender have also been consistent in their testimonies with respect to the role of the accused persons in causing hurt to them and/or obstructing them in discharging their duty. In my reasoned opinion, there is no reason to disbelieve the testimonies of the concerned police officers i.e. PW1 SI Dara Singh, PW 4 Ct. Rewti Kant and PW7 Ct. Dharmender, which are found to be reliable and trustworthy.
16. Therefore, in light of the aforementioned, since SI Dara Singh, Ct. Dharmender and Ct. Rewti suffered 'hurt' due to pelting of stones by accused Shahjahan upon them as a result of which they were also obstructed in discharging their duties, there is no doubt that accused Shahjahan stands guilty of offence committed under section 332 IPC and section 353 IPC. Since there was no act on the part of accused Poly Begum and accused Shefali Begum in causing hurt to the concerned police officials on the day and time of the incident, accused Poly Begum and accused Shefali Begum stand acquitted of charge u/s.332 IPC although since they obstructed the concerned police officials i.e. SI Dara Singh, Ct. Rewti Kant and Ct. Dharmender in discharging their duties, as has already been discussed above, they stand guilty of offence under S.353 IPC.
CONCLUSION
17. Therefore, on the basis of overall discussions:
(i) All the accused persons stand acquitted of charge u/s.186 IPC;
(ii) accused Shahjan is convicted for offence u/s 332 IPC and u/s. 353 IPC IPC and acquitted of offence u/s 186 IPC; and
(iii) accused Poly Begum and accused Shefali Begum stand convicted for offence u/s 353/34 IPC and acquitted of offence u/s/332/186 IPC.
State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 8 of 9 File be consigned to record room after necessary compliance. Copy of judgment be place on the district court website.
Announced in open Court on 13.12.2018.
(VASUNDHARA AZAD) Metropolitan Magistrate03 (SouthEast), Saket Courts, New Delhi/13.12.2018 State Vs. Rafiq Etc. FIR No. 64/2009 Police Station: Jaitpur Page No. 9 of 9