Delhi District Court
State vs Nitin@Vinay on 9 July, 2024
1
IN THE COURT OF MS. AISHWARYA SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS01, DWARKA COURTS,
NEW DELHI
State v : Nitin @ Vinay
FIR No : 188/2021
U/S : 186,353,506 IPC
P.S. : PALAM VILLAGE
1. Criminal Case No. : 9250/2021
2. Date of commission of offence : 07.05.2021
3. Date of institution of the case : 14.08.2021
4. Name of the complainant : State
5. Name of accused & parentage : Nitin @ Vinay S/o Sh. Ram
Karan
6. Offence complained or proved : U/S186,353,506 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 03.04.2024
9. Final order : Acquitted for offence U/s
186 IPC and Convicted for
offence U/s 353 & 506 IPC
10. Date of final order : 09.07.2024
________________________________________________________________
Present: Sh. Sudhanshu Saini Ld. APP for state.
Accused produced from J/C (on bail in this case)
Sh. Rahul Chauhan Ld. Proxy Counsel for accused
JUDGMENT
1. Briefly stated the story of the prosecution is that on 07.05.2021, the complainant Ct. Sunil being part of investigating team in a Murder Case in case FIR NO. 2020/21 was tracking the movements of two accused namely Chetan Pandey and Nitin @ Vinay and he along with investigating team Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:08:24 +0530 2 including ASI Mahender, Ct. Lokesh, Ct. Manjeet and Secret informer went to Gali No. 5, Mahavir Enclave, New Delhi and ASI Mahender along with Ct. Lokesh took position on the main road and Ct. Sunil along with Ct. Manjeet and secret informer went in Gali No. 5 and outside one house, one Avenger motorcycle (black) colour was parked which was identified by secret informer who told that both the aforesaid wanted criminal could be present here and thereafter, Secret Informer left the spot. Upon this, Ct. Sunil along with Ct. Manjeet took position in the street and started waiting for the aforesaid criminals. It is stated that in the meantime, one boy who had his mask on took twothree rounds outside the aforesaid house and on suspicion, Ct. Manjeet went after the aforesaid boy and after sometime at about 12 noon, one boy came near the motorcycle whom Ct. Sunil identified as Nitin who was previously known to him being a desperate criminal, thus, Ct. Sunil stepped towards accused Nitin upon this accused Nitin threatened Ct. Sunil with a hostile gesture by saying "Aage Badha Toh Theek Nahin Ноgа" and when accused Nitin tried to move away from there, Ct. Sunil caught hold him from the back and disclosed him that he is Ct. Sunil from PS Sagar Pur, despite that accused Nitin started manhandling Ct. Sunil and pushing him away and when the accused pushed Ct. Sunil, they headed towards the Gali No. 5, Ct. Sunil asked accused Nitin @ Vinay to surrender but he did not surrender and tried to overpower Ct. Sunil and accused said in anger that "Mujhe Chhodh Doh Nahin Toh Theek Nahin Hoga Tumhare Liye" and Accused started taking his hand on the back side. It is further stated that Ct Sunil thought that he is about to take a weapon from his back side and hit him with the said weapon, so in the meanwhile, Ct. Sunil took his service revolver which was already loaded and fired the accused on his left leg which hit him and he fell on the road and then Ct. Sunil overpowered him and searched him and the accused was carrying a purse and a mobile phone and as blood was oozing out on his left leg. The Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:08:40 +0530 3 accused was then shifted to Shakuntala Hospital in a private vehicle brought by the other staff of P.S. SagarPur. In the meanwhile, the police officials from PS Palam reached the spot and a Crime Team was called at the spot, Empty cartridge and other exhibits were seized by the IO from the spot. Sketch of the empty cartridge was also prepared by the IO. Accused was arrested and was sent to J/C and upon completion of investigation, chargesheet was filed against the accused.
2. Upon filing of the chargesheet, the accused was produced from J/C and after compliance of section 207 Cr. P.C, charge U/SS 186/353/506 IPC was framed against the accused on 10.12.2021 by Ld. Predecessor of this court to which he pleaded not guilty. Hence, the trial.
3. The prosecution examined as many as thirteen witnesses in support of it's case. I have heard the arguments advanced by the learned counsels of both the sides. I have also meticulously perused the case record as well as the depositions of the prosecution witnesses.
4. The relevant testimony of prosecution witnesses is unfurled as hereunder:
(I) PW1 HC Manoj deposed that on 07.05.2021, he along with SI Amit Kumar on receipt of DD No. 36A went to the spot i.e in front of house No. D IA/26, Gali No. 5, Mahavir Enclave, New Delhi where they noticed a lot of public persons were present along with police officials and that lot of blood spilled on the road, there was one motorcycle make Hero Handa (Splendor) and there was blood on the seat of the said motorcycle and there was one helmet lying on the road near the motorcycle and there was blood on the said helmet also and Ct. Sunil from P.S. Sagar Pur was also present there who told them that one accused in FIR No. 220/21 of P.S. Sagar Pur U/S 302 IPC namely Nitin Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:05 +0530 4 was injured by Gunfire by Ct. Sunil in his selfdefence. He also deposed that Crime team, South West District was also informed by SI Amit Kumar, Crime Team took photographs of the spot alongwith one fired round at the spot and thereafter, Sl Amit took sample blood from the road from two places with the help of medical bandage and after drying the blood same was placed into brown colour envelope and turned into pullanda and sealed with the seal of SS and same was marked as Mark Ex. 1 and Ex.2, two pullandas were made and blood sample were taken into two envelopes duly sealed with the seal of SS. He further deposed that thereafter, IO take out seat cover of the aforesaid Splendor motorcycle bearing registration No. RJ32SF3401 and turned into a pullanda and sealed with the seal of SS and gave it to mark Ex. 3, and bloodstained helmet which was black in colour was also taken into police possession and given mark Ex. 4. He further deposed that thereafter, this witness took out sample /earth from the two spots on road where blood was spilled by breaking the road with the help of a hammer and Chhen and both the samples were seized on two different pullandas and they were sealed with the help of SS and given mark Ex. 5 and Ex.6 and IO also took out sample of road which was clear without any blood stains from the spot and placed in a transparent plastic box and duly sealed it and given mark Ex. 7. He further deposed that the fired round found at the spot was placed on a white paper and it's sketch was prepared and later on turned into a pullanda with the help of one plastic box and sealed it with the seal of SS and in the meantime, one DD No. 48A was received regarding admission of injured Nitin in Shakuntala Hospital, Sagar Pur and upon this IO left for the hospital leaving at the spot with the exhibits and after considerable time, SI Amit came to the spot alongwith Ct. Sunil and IO took the service pistol of Ct. Sunil alongwith the seven live rounds and placed the same on a white paper and made a sketch Ex. PWI/A of the same and took it into possession vide seizure memo Ex. PWI/B after turning them into pullanda with Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:13 +0530 5 the help of transparent plastic box and sealed it with the seal of SS and IO also prepared the site plan at the instance of Ct. Sunil Ex. PW1/C and the aforesaid Ex. 1 to Ex. 7 were taken into police possession vide Ex. PWI/D and the fired round was taken into possession vide seizure memo Ex. PWI/E and its sketch is Ex. PW 1/F. II) PW2 HC Sunil, who is the complainant in the present case, deposed that on
05.05.21, one murder had taken place in their area and regarding that an FIR No. 220/21 was registered in which two accused persons were wanted namely Chetan Panday and Nitin @ Vinay and this witness was part of the team which was tracking the movement of these accused persons. He further deposed that on 07.05.21, on the basis of secret information, he alongwith ASI Mahender, Ct. Lokesh, Ct. Manjeet and with secret informer left PS Sagar Pur at about 11 a.m went to Gali No. 5, Mahavir Enclave, New Delhi and ASI Mahender alongwith Ct.Lokesh took possession on the main road and this witness alongwith Ct. Manjeet and secret informer went in Gali No. 5 and outside one house one Avenger motorcycle (black) colour was parked and the Secret informer identified the aforesaid motorcycle and told them that both the aforesaid wanted criminal could be present here and thereafter he left the spot. He further stated that upon this, he alongwith Ct. Manjeet took position in the street and started waiting for the aforesaid criminals and during their stay, one boy who had his mask on, took twothree rounds outside the aforesaid house, his conduct made them suspicious and Ct. Manjeet went after the aforesaid boy and after sometime at about 12 noon, one boy came near the motorcycle whom this witness identified as Nitin who was previously known to him being a desperate criminal and upon this, this witness stepped towards accused Nitin and Nitin also noticed one and threatened him with a hostile gesture by saying "Aage Badha Toh Theek Nahin Ноgа" and when accused Nitin tried to move away Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:23 +0530 6 from there, this witness caught hold him from the back and disclosed him that he is Ct. Sunil from PS Sagar Pur, despite that accused Nitin started manhandling him and pushing him away. This witness correctly identified the Accused Nitin in the Court. He further stated that when the accused pushed him, they headed towards the Gali No. 5 and he asked accused Nitin @ Vinay to surrender but he did not surrender and tried to overpower this witness and accused in anger also said that "Mujhe Chhodh Doh Nahin Toh Theek Nahin Hoga Tumhare Liye" and accused started taking his hand on the back side to which this witness thought that accused is about to take out a weapon from his back side and hit him with the said weapon and in the meanwhile, this witness took his service revolver which was already loaded and fired the accused on his left leg which hit him and he fell on the road and he then overpowered the accused and searched him and accused was found carrying a purse and a mobile phone. He further stated that as blood was oozing out on his left leg, he untied his belt and tied the same on his left thigh and in the meanwhile, Ct. Manjeet also reached the spot and they tried to shift the accused to the hospital on a motorcycle in order to save him and in the meanwhile, the other staff of P.S. Sagar Pur also reached the spot in a private vehicle and the accused was shifted to in Shakuntala Hospital in the said private vehicle. He further deposed that thereafter, the police officials from P.S. Palam reached the spot and a Crime Team was called at the spot. He further deposed that empty cartridge and other exhibits were seized by the IO from the spot vide seizure memo already Ex.PW/D and Ex.PW1/E respectively and IO SI Amit reached the hospital and recorded statement of this witness. He further deposed that in the evening, the site plan Ex.PW1/C was prepared by the IO at the PS, however, changed his version and again said, it was prepared at the spot by the IO. He further stated that he handed over his pistol to the IO at the spot and the same was seized by the IO vide seizure memo already Ex.PW1/B and the sketch of the pistol was Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:34 +0530 7 prepared by the IO i.e. Ex.PW1/A, Sketch of the empty cartridge was also prepared by the IO, same is already Ex.PW1/F. The identity of the pistol was not disputed by Ld. Defence Counsel. He further deposed that his statement was recorded by IO and thereafter, he left the spot. This witness correctly identified the Accused Nitin @ Vinay in Court today.
III) PW3 Sh. Vijay deposed that he is residing at the aforesaid address along with his family and that Accused Nitin is friend of his brother Akshay and they both have remained in jail regarding same matter. He further deposed that the incident in question occurred on 07.05.2021 and accused Nitin alongwith one other boy Chetan Pandey was residing at his house for two days prior to the incident and that Accused Nitin was using an avenger motorcycle at the time of the incident. He further deposed that on 07.05.2021, there was a firing incident near his house wherein police have fired and Accused was arrested on 07.05.2021 after the said incident. He correctly identified the Accused in the court.
IV) PW4 Dr. Bhupender Pal Dhami, Medical Director, Shakuntala Hospital, Sagarpur, New Delhi deposed that on 07.05.2021, one patient namely Nitin came at the hospital and he was brought to the hospital by police official with alleged history of fire on left leg below knee joint and exit wound was present on the left leg below the knee joint. He deposed that he examined him and did the dressing of the patient and gave his opinion as dangerous. He exhibited the MLC as Ex.PW4/A and identified his signature at point A. V) PW5 ASI Mahender Singh deposed that on 05.05.2021, one murder had taken place in their area and regarding that an FIR No. 220/21 was registered in which two accused persons were wanted namely Chetan Panday and Nitin @ Vinay and a tracking team was formed under the instruction of the SHO to search the accused persons. He further deposed that he was heading the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:47 +0530 8 tracking team and team was comprising of Ct. Sunil, Ct. Lokesh, Ct. Manjeet. He further deposed that on that day, he alongwith the team members and secret informer left PS Sagar Put at about 11 A.M. went to Gali No. 5, Mahavir Enclave, New Delhi and he alongwith Ct. Lokesh took position on the main road and Ct. Sunil alongwith Ct. Manjeet and secret informer went in Gali No.
5. He further deposed that they were connected with each other on phone and after sometime, Ct. Lokesh went inside the said street and saw that Ct. Manjeet and Ct. Sunil were trying to make one person sit on the bike and Blood was oozing out of leg that person. He stated that he saw that person and he identified him as accused Nitin and that the accused was taken to some hospital in a private vehicle. He stated that at the spot, Ct. Sunil told him that accused Nitin did not cooperate with him and he tried to overpower him and Ct. Sunil also told that he had the apprehension that accused Nitin was carrying some arms as accused Nitin told Ct. Sunil that "hathpayi ke doran waha ekdum apna hath kamar ke pitche leker mujhe dhamki bhare lahje me kehne laga mujhe chod de nahi to thik nahi hoga" and therefore, Ct. Sunil fired on the leg of accused Nitin.
VI) PW6 Ct. Lokesh Kumar deposed that on 05.05.2021, one murder had taken place in their area and regarding that an FIR No. 220/21 was registered in which two accused persons namely Chetan Panday and Nitin @ Vinay were wanted and on 07.05.2021 a tracking team was formed under the instruction of the SHO to search the accused persons and ASI Mahender Singh was heading the tracking team and team was comprising of Ct. Sunil, Ct. Manjeet, ASI Mahender and this witness. He further deposed that on that day, he along with the team members and secret informer left PS Sagar Put at about 11 A.M went to Gali No. 5, Mahavir Enclave, New Delhi and he along with ASI Mahender took position on the main road and Ct. Sunil along with Ct. Manjeet and secret Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:09:54 +0530 9 informer went in Gali No. 5 and they all were connected with each other on phone. He further deposed that after sometime, he went inside the said street and saw that Ct. manjeet and Ct. Sunil were trying to make one person sit on the bike and Blood was oozing out of leg that person. He further deposed that he saw that person and he identified him as accused Nitin and that the accused was taken to some hospital in a private vehicle. He further stated that at the spot, Ct. Sunil told him that accused Nitin did not cooperate and he tried to overpower them, and that Ct. Sunil also told him that he had the apprehension that accused Nitin was carrying some arms as accused Nitin told Ct. Sunil that "hathpayi ke doran waha ekdum apna hath kamar ke pitche leker mujhe dhamki bhare lahje me kehne laga mujhe chod de nahi to thik nahi hoga" and therefore, Ct. Sunil fired on the leg of accused Nitti. This witness correctly identified the Accused Nitin in the Court.
VII) PW7 Inspector Subey Singh deposed that on 12.09.2021, IO of the present case namely SI Amit came at the PS Sagarpur and asked for the details of FIR no. 220/21 under section 302/34 IPC and 25/27 Arms Act, PS Sagarpur and thus, he handed over the copy of the FIR and some other documents like arrest memo, etc. to the SI Amit as he was the investigating officer of the present case FIR.
VIII) PW8: HC Narpatt deposed that on 15.06.2021, he joined the further investigation of the present matter and he accompanied the IO SI Amit to Tihar Jail No.8/9, where IO formally arrested the accused namely Nitin@ Vinay in his presence vide arrest memo Ex.PW8/A and IO recorded the disclosure statement of accused i.e. Ex.PW8/B. IX)PW9 Ct. Vikas deposed that on 07.05.2021, he along with crime team inspected the scene of crime in the present case FIR and got the scene photographed from different angles from Digital Camera, the same are Ex.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2024.07.09
16:10:02 +0530
10
PW9/B (Colly) bearing my signatures at point A and he also prepared the CD containing the photographs of the crime scene which is Ex. PW9/A and filed certificate U/S 65 B of Indian Evidence Act, regarding the CD and photographs i.e. Ex. PW9/C. X) PW10 Ct. Manjeet deposed that on 05.05.2021, one murder had taken place in their area, regarding which an FIR NO. 220/21 was registered in which two accused persons namely Chetan Pandey and Nitin @ Vinay were wanted. He stated that he was part of the team which was tracking these accused persons. He further deposed that on 07.05.2021, on the basis of secret information, he along with ASI Mahender, Ct. Sunil, Ct. Lokesh and along with Secret Informer, left the PS Sagar Pur at about 11:00 Am and went to Gali No. 5 Mahavir Enclave, New Delhi. He further stated that ASI Mahender, alongwith Ct. Lokesh took their position at the main door and he along with Ct. Sunil and secret informer went inside Gali No.5 and outside one house, one black colour Avenger Motorcycle was parked which was identified by Secret Informer who he told them that both the aforesaid wanted criminals are inside the said house and thereafter, the Secret Informer left the spot. He further deposed that he along with HC Sunil took position in the street and started waiting for the aforesaid criminals and during their stay one boy who had his mask on his face took 23 rounds around the said house and his conduct made them suspicious and he went to chase the said boy and started following him but the said boy disappeared suddenly after some time and thereafter, when he returned back to the spot, he found one boy was lying on the road and Ct. Sunil was present there. He further stated that on inquiry, he came to know that said boy who was lying on the road is accused Nitin and thereafter, other police officials also came there and they took accused Nitin to hospital in Car. He further stated that Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:09 +0530 11 thereafter, he left the spot in search of other accused and IO recorded his statement U/S 161 Cr.P.C Ex. PW10/A. XI) PW11 Inspt. Surender Singh deposed that in the year 2021, he had collected the case file of present case FIR from the MHCR, PS Palam Village and after completion of the investigation, he filed the present case chargesheet before the Hon'ble Court. He further deposed that during further investigation in the present case, complaint U/S 195 Cr.P.C was pending and he had obtained the same from the concerned ACP Office and same was filed before the Hon'ble Court vide supplementary chargesheet.
XII) PW12 SI Amit Kumar deposed that on 07.05.2021, he was on emergency duty and he received one PCR Call vide DD No. 36 A regarding firing which took place in Gali NO.5, Mahavir Enclave, Palam, thereafter, he along with Ct. Manoj went to the spot i.e. RZD1A/26 Gali No.5 Mahavir Enclave, Palam, where he met Ct. Sunil and staff of P.S. Sagar Pur, who were already present there and at the spot, he also found blood stains, one motorcycle, one helmet with blood stains. He further stated that upon inquiry, it was revealed that staff of PS Sagar Pur were doing investigation in another case FIR and had come to arrest the accused in that case FIR NO. 220/21 of PS Sagar Pur, U/S 302 IPC & 25/27 Arms Act and while the staff of PS Sagar Pur was controlling the accused, accused got injured and he was taken to Hospital in a private vehicle by them. He further deposed that thereafter, Crime team was called at the spot by him and Crime Team took photographs and examined the spot and thereafter, he seized the exhibits vide Exhibit memo Ex. PW1/D and he also seized one empty round vide Ex. PW1/E bearing my signatures at point B and also prepared sketch of empty round Ex. PW1/F. He further deposed that thereafter, one information regarding MLC of accused Nitin was received from Shakuntala Hospital, Sagar Pur and he went there after leaving Ct. Manoj at the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:18 +0530 12 spot and met with injured/accused Nitin who was not in a fit state to give his statement. He further deposed that he seized the blood stains clothes of accused vide Ex.PW12/A and thereafter, he went to P.S. and after some time Ct. Sunil/complainant also came to P.S.Palam Village and he recorded statement of Ct. Sunil at P.S. i.e Ex. PW12/B and prepared tehrir / rukka Ex. PWI2/C and got the present case FIR registered and thereafter, he went to the spot with Ct. Sunil and prepared site plan at his instance Ex. PW1/C and at the spot, Ct. Sunil handed over his pistol with 7 live cartridges to him and he prepared the sketch memo Ex. PW1/A and thereafter, he seized the said pistol vide memo Ex. PW1/B and he also recorded statement of witnesses U/s 161 Cr. P.C. He further deposed that he served notice U/s 91 Cr.P.C for providing CCTV Footage to PWD and he also formally arrested the accused vide memo Ex. PW8/A and recorded disclosure statement of accused Ex. PW8/B. XIII) PW13 Retired ASI Bhagwan deposed that on 07.05.2021 the IO SI Amit, called him to the spot i.e. RZD1A/26 Gali No.5 Mahavir Enclave, Palam, New Delhi and he went to the spot and inspected the spot and took photographs of blood stains, two motorcycles, 9mm empty cartridges, and thereafter, IO seized these articles and during investigation of the present case, IO also recorded his statement U/s 161 Cr. P.C.
5. During the trial of the case the accused also admitted the FIR No.188/2021 as Ex.X1, DD entry No. 36 A and 48 A dated 07.05.2022 as Ex.X2 & Ex.X3, copy of register regarding issuance of Arms and Ammunition as Ex.X4, the certificate U/S 65 B of Indian Evidence Act regarding CCTV Footage Ex. X5 and the CD as Ex.X6, vide his statement U/S 294 Cr.P.C dated 07.11.2022.
6. After prosecution evidence, the statement of accused U/S 313 Cr.P.C was recorded on 05.01.2024 wherein all the incriminating circumstances were put to Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:26 +0530 13 the accused, whereby the accused denied all the allegations and pleaded innocence and stated that he was present at his friend namely Vijay's House along with his friend and his wife and that no such incident happened. He stated that he has been falsely implicated as he had many other criminal cases and that he was cleating his bike outside the house of his friend and then PW Ct. Sunil came there in civil dress and asked him to surrender or otherwise threatened to kill him and when he inquired about the reason as to why he is threatening him, he caught hold of him and fired at him due to which he sustained injuries on his leg and fell down at the spot. The accused did not lead any evidence in his defence. Accordingly, defence evidence was closed and the matter was taken up for final arguments.
7. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The statements of PW2 HC Sunil and other members of his raiding party are consistent with each other and the accused has also admitted his presence at the spot and he has even admitted that he was asked to surrender by the complainant which proves that the accused has committed the alleged acts. Therefore, it is argued that the accused be convicted of alleged offence. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on the ground that the accused admittedly was not carrying any weapon of offence and since, he was in mask the police officials could not have identified him and since, the police officials i.e. PW2 HC Sunil wrongly fired at accused, he has falsely implicated the accused, misusing his position. Lastly, it has been argued that offence U/S 186 IPC is not proved against the accused as the complaint U/S 195 Cr.P.C has not been proved.
8. Arguments heard. Record perused. Considered.
9. Before embarking upon the appreciation of evidences, it would be apposite to reproduce the provisions for which the accused has faced trial:
Digitally signed byAISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:33 +0530 14 "186. Obstructing public servant in discharge of public 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."
"353. Assault or criminal force to deter public servant from 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".
" 506. Punishment for criminal intimidation. --Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc".
Further, the offence of criminal intimidation is defined in Section 503 IPC, which reads as follows:
"503. Criminal intimidation.-- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
10. The import of Section 186 & 353 is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in Durgacharan Naik & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court in the following words:
"5... It is true that most of the allegations in this case upon which the charge under Section 353, Indian Penal Code is based are the same as those Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:42 +0530 15 constituting the charge under Section. 186, Indian Penal Code but it cannot be ignored that Sections 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 Section 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 contempt's of the lawful authority of public servants, while section 353 occurs in Ch. XVI regarding the offences affecting the human body..."
11. In the instant case, the court is posed with following questions for determination to Adjudge the veracity of prosecution case:
(a) Whether the complainant namely PW2 Ct. Sunil was public servant at the time of alleged commission of offences in question?
(b) whether he was acting in discharge of his public functions assigned to him?
(c) whether any obstruction or deterrence was caused to him in the discharge of the public functions by the act of accused?
(d) (i) For the purpose of Section 186 IPC, whether the complaint was filed and proved before this court U/S 195 Cr.P.C?
(ii) For the purpose of Section 353 IPC, whether the accused had assaulted or used any criminal force to HC Sunil during the execution of his duty?
(e) whether the accused extended any threats to Ct. Sunil with any injury to his person to stop him from arresting the accused, which he was legally entitled to do?
12. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard to drive home the guilt of accused.
Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:10:49 +0530 16
13. As regards the first point, there is ample evidence on record to prove that the complainant/PW2 HC Sunil was public servant at the time when the acts allegedly constituting the offences in question were committed by the accused on 07.05.2021. Section 21 IPC defines as to who is a public servant. The clause relevant to this case is:
"...Eighth. -- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Twelfth --Every person-- (a)in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government..."
14. It has come in evidence of PW2 Ct. Sunil that on 07.05.2021 upon receiving secret information, he along with Ct. Lokesh, ASI Mahender, Ct. Manjeet had left for PS Sagar pur for the spot of occurrence, to apprehend the accused as he was warranted in case FIR NO. 220/2021 U/S 302, 34 IPC and Section 25, 27 Arms Act. This fact has also been corroborated by other members of the raiding party i.e. PW5 ASI Mahender, PW6 Ct. Lokesh Kumar and PW10 Ct. Manjeet as all of them consistently deposed that upon receipt of secret information received in their P.S., they had proceeded to the spot of occurrence to apprehend the accused along with one other persons Chetan Pandey as they were warranted in a murder case. Further, at no point in time during the trial, the accused raised any dispute regarding the fact that they were public servants as not even a single suggestion to that effect was put in crossexamination of either of these witnesses. Further, the accused has also not disputed the fact that he was warranted in case FIR NO. 220/2021 U/S 302, 34 IPC and Section 25, 27 Arms Act, P.S. Sagarpur. Further, the accused has also admitted in his statement U/S 313 Cr.P.C. that complainant Ct. Sunil asked him to surrender, thus, it stands proved that being police official of PS Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:03 +0530 17 Sagar Pur on the alleged day of occurrence PW2 Ct. Sunil had gone to apprehend the accused as he was warranted in case FIR NO. 220/2021 registered in PS Sagar Pur. Since, on the day of occurrence, being the official of PS Sagar Pur, PW2 Ct. Sunil was performing the public duty as he had gone to apprehend the offender warranted in case FIR No.220/2021 PS Sagar Pur and he was in the service of the Government, hence, it is proved that he was public servant on 07.05.2021 when the incident in question took place.
15. In the present case, the accused has nowhere disputed this fact that he was warranted in case FIR No. 220/2021 and this fact is also not dispute that he is still facing trial in the said case FIR and is also in custody in that case FIR, hence, it is also established that on the alleged date and time of occurrence, PW2 Ct. Sunil was acting in discharge of his public functions assigned to him which was to apprehend the accused and his associate.
16. Now coming to the third issue, whether the conduct of accused was such as to lead obstruction in the duties of concerned Police official of PS Sagar Pur. The testimony of only PW2 Ct. Sunil is only relevant to establish this fact as, only he was present along with the accused at the time of alleged occurrence and other members of the raiding party were at different places and not at the place of occurrence. This witness deposed in his examination in chief, that the accused came near the motorcycle and he identified the accused as he was wanted in other cases of PS Sagar Pur and he made a hostile gesture and threatened the complainant i.e. Ct. Sunil saying to him "aage bada to theek nahi hoga" and then accused tried to move from there but was caught by complainant and then accused manhandled him and pushed him away and headed towards Gali No.5 and thereafter, he asked the accused to surrender but he did not surrender but overpowered him and said "mujhe chod do nahi to theek nahi hoga tumahare liye" and the accused started taking his hand on the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:11 +0530 18 back side and complainant felt that he was about to take a weapon to attack him, due to which complainant fired on the left leg of the accused and accused fell down on the road and complainant overpowered him and searched him. Thereafter, this witness deposed about the further investigation carried out at the spot and about the fact that the accused was taken to Shakuntala Hospital for his treatment. During his cross examination, this witness admitted that he did not fire in air to threaten the accused and justified the said act stating that since it was a residential area, he did not fire in the air and even in the CCTV Footage filed on record, it can be seen that the place of occurrence is a residential area. Further, both the accused and complainant can be seen in the CCTV Footage and for few seconds complainant and accused can be seen pushing/ touching and thereafter, it can be seen that the accused had sustained injury and then the other member of the raiding party i.e. PW10 Ct. Manjeet reached at the spot. Ld. Counsel for accused has vehemently argued that since the accused was not carrying any weapon there was no perceivable threat to Ct. Sunil from the accused and since, complainant wrongly fired at the accused, he has falsely implicated the accused in the present case. In the present case, this fact is not in dispute that on the day of occurrence, the accused was wanted in case FIR NO. 220/2021 PS Sagar Pur U/S 302 R/W 34 and 25/27 Arms Act and accused is still facing trial in the same and is in custody in that case. Further, the testimony of other members of raiding party and the testimony of PW3 Sh. Vijay and CCTV footage also substantiates the presence of accused at the spot and it shows that the raiding party had rightly proceeded to the spot of occurrence to apprehend the accused. Further, undisputedly, at the time of alleged occurrence only Ct. Sunil was present there and even accused admitted in his statement U/S 313 Cr.P.C. that he was asked by Ct. Sunil to surrender and Ct. Sunil has consistently deposed that he was threatened by the accused Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:24 +0530 19 and the accused tried to overpower him and even pushed him. Nothing has come in the cross examination of Ct. Sunil on the basis of which his version can be doubted. Hence, it stands proved that the conduct of accused was such as to cause obstruction in the duties of Ct. Sunil of PS Sagar Pur.
17. Now coming to the fourth issue, with respect to second part of this issue, this court is to determine if accused assaulted or used criminal force against Ct. Sunil at the relevant point of time who was executing his duty as public servant. Criminal force and assault have been defined in Section 350 & 351 IPC as following:
"Section 350 Criminal Force Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other."
"Section 351 Assault Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation."
18. In the present case Ct. Sunil has specifically stated that when accused noticed him, he threatened him by saying "aage badha to theek nahi hoga" and then he caught hold of accused and thereafter, he gave his introduction that he is Constable from PS Sagar Pur and then Accused Nitin manhandled him and pushed him and headed towards Gali No.5 and even after being asked, he did not surrender but tried to overpower him and said in anger "mujhe chod do nahi to theek nahi hoga tumahare Liye" and he moved his hands on the back side and Ct. Sunil thought that the accused is about to take out any weapon from backside and hit him with the same, due to which he fired on the left leg of accused with his service revolver. Since, the complainant has clearly stated that the accused pushed him, threatened him Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:35 +0530 20 twice and after being caught once by the complainant tried to flee away and did not surrender even after being asked to do so, thus, from the testimony of complainant, it is clear that the accused has assaulted as well as used criminal force upon complainant with intent to prevent him from discharging his duty which was to arrest the accused. Further, version of this witness is also corroborated by other members of raiding party i.e. PW5 ASI Mahender Singh and PW6 Ct. Lokesh Kumar as both of them have deposed that Ct. Sunil upon their arrival at the spot told them that he was under apprehension that accused was carrying some arms as they deposed that "hathapai ke doraan waha ekdum apna haath kamar ke piche le kar mujhe dhamki bhare lehje me kehne laga mujhe chod de nahi to theek nahi hoga tumahare liye". Further, this version of complainant is also substantiated by accused in his statement U/S 313 Cr.P.C as he stated that when he inquired in the hospital from Ct.Sunil as to why he fired at him, he told him that he perceived threat from him as he was under impression that he may be in possession of some weapon due to which he fired at him. Further, the accused has also substantiated the fact that the complainant could have identified him as he admitted that there were many other criminal cases pending against him. Accused even admitted that Ct. Sunil asked him to surrender.
19. During the course of arguments, the Ld. Counsel for accused submitted that the complainant would have known that the accused was not carrying any weapon as he admittedly held him from his back and thus, he had no perceivable threat from the accused. However, the perusal of testimony of complainant shows that he initially held the accused from back and then accused manhandled and pushed him and headed towards Gali No.5 and tried to overpower him and threatened him. Since, the complainant nowhere stated that he held the accused throughout or for sufficient period so that he could Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:50 +0530 21 search if the accused was in possession of any weapon or not, thus, it cannot be said that the complainant was aware that the accused was not carrying any weapon. Further, since the accused was already involved in commission of offence U/S 302 R/W 34 IPC & 25/27 Arms Act regarding which FIR NO. 220/2021 was registered at P.S. Sagapur only 2 days prior to the day of occurrence and in connection with that case only, Ct. Sunil had come to apprehend him, there was every possibility that the accused could have been in possession of any fire arm and considering his previous conduct and his admitted involvement in other criminal cases, he could have even used the same as the complainant had gone to the spot of occurrence to apprehend him and complainant has specifically stated that he had fired only when he saw that the accused was taking his hands on the backside. Further, in such a situation, complainant could not have been expected to be very calculative. Further, this court if not to determine if Ct. Sunil exceeded his right to private defence or not but this court is supposed to determine if the accused used criminal force or assault upon Ct. Sunil to deter him from discharging his duty or in consequence of anything done or attempted to be done by Ct. Sunil in the lawful discharge of his duty as such public servant.
20. Quite significantly, it is not the case where the accused had voluntarily surrendered when Ct. Sunil gave him his introduction, rather as apparent from testimony of complainant, even after being apprehended once, accused successfully flee away from his clutches and pushed him and threatened him and did not surrender despite being asked to do so and even moved his hands towards his backside. This must have raised even more apprehension in the mind of complainant who was on duty, and rightly so. Thus, the very act of accused in failing to fall in line with the directions of complainant amounts to creation of voluntary deterrence in the discharge of his Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:11:57 +0530 22 duties. Further, the fact that after having been caught hold of once, the accused flee away from the hands of complainant, also constitutes 'obstruction' and thereafter, since accused even pushed the complainant away and tried to flee away from the spot, the same is clearly use of criminal force by the accused upon the public servant.
21. Based on the above discussion, it is unhesitatingly concluded that there was obstruction and deterrence in the discharge of duties by PW 2 by the voluntary acts of accused and accused even assaulted and used criminal force upon him, thus, the prosecution has successfully proved beyond all reasonable doubt that the accused has committed offence Us 353 IPC, the accused is accordingly convicted of the same.
22. Nevertheless, for proving the charge of Section 186 IPC, there has to be fulfillment of the procedural requirement of section 195 Cr.P.C as well. This brings us to the point of determination (d) (i). As per Section 195(1)
(a)(i), the cognizance for offence under Section 186 IPC could be taken only upon the written complaint of public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, the complaint u/S 195 Cr.P.C is on record and the same has been signed by ACP Concerned, however, this ACP Concerned or his Reader who has been cited as witness in the supplementary chargesheet has never come in the court to depose about the same. Further, even there is no statement of accused U/S 294 Cr.P.C regarding admission of this document. In Mohd. Iqbai Ahmed v State of Andhra Pradesh (1979) 4 SCC 172, the Hon'ble Supreme Court held that the burden lies on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after it is satisfied that the case for Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:12:05 +0530 23 sanction has been made out. Further, in C.B.I./SPE, Hyderabad v P.Muthuraman 1996 Cri LJ 3638, the Hon'ble Andhra Pradesh has held that:
"For the reasons stated in the preceding paragraph, I reach the conclusion that the signature on the sanction should be proved either by the sanctioning authority or by his subordinate officer or clerk who has seen the sanctioning authority signing the sanction order or who is acquainted with the signature of the sanctioning authority. Merely filing the order purported to be the sanction order alleged to have been signed by the competent authority, does not discharge the burden of the prosecution in proving the sanction according to law."
23. In view of case laws discussed above, it is clear that the mere placing on record of the complaint U/S 195 Cr.P.C would not suffice and that it should have been proved like any other written document in accordance with Section 67 read with Section 47 of The Indian Evidence Act, 1872. Thus, the prosecution has miserably failed on that front, which makes the accused entitled to benefit of doubt. In such a scenario, the charge U/S 186 IPC fails and the accused is acquitted of the said offence.
24. Now coming to the fifth issue, with respect to offence of criminal intimidation punishable U/S 506 IPC, the complainant has deposed that when he had gone to apprehend the accused, the accused initially threatened him by saying that "Aage Badha Toh Theek Nahin Ноgа" and when accused Nitin tried to move away from there, Ct. Sunil caught hold him from the back and disclosed him that he is Ct. Sunil from PS Sagar Pur, despite that accused Nitin started manhandling Ct. Sunil and pushing him away and when the accused pushed Ct. Sunil, they headed towards the Gali No. 5, Ct. Sunil asked accused Nitin @ Vinay to surrender but he did not surrender and tried to overpower Ct. Sunil and accused said in anger that "Mujhe Chhodh Do Nahin Toh Theek Nahin Hoga Tumhare Liye" and thereafter, even the accused moved Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:12:12 +0530 24 his hand on the backside and the complainant felt that he is about to take out any weapon and then he fired on the left leg of accused, thus, from controverted testimony of complainant, it stands established that accused threatened him with injury to his person by saying that "Mujhe Chhodh Doh Nahin Toh Theek Nahin Hoga Tumhare Liye" and the accused did the same with intent to stop the complainant from arresting him, which the complainant was legally entitled to do. Since, the prosecution has successfully proved that the accused had criminally intimidated the complainant Ct. Sunil while he was performing his duty as a public servant and was responsible to arrest the accused, thus, the accused is convicted of the commission of offence U/S 506 IPC.
25. Resultantly, the accused Nitin @ Vinay is acquitted for commission of offence U/S 186 IPC and he is convicted of commission of offence U/S 353 & 506 IPC. Be put up for hearing on point of sentence on 20.07.2024.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA
Announced in the open court on Date: 2024.07.09
16:12:18 +0530
this day i.e. 09th July, 2024 (AISHWARYA SHARMA)
Judicial Magistrate First Class01
DWARKA/NEW DELHI /09.07.2024
It is certified that this judgment contains 24 pages and each page bears Digitally signed by my signatures. AISHWARYA AISHWARYA SHARMA SHARMA Date: 2024.07.09 16:12:23 +0530 (AISHWARYA SHARMA) Judicial Magistrate First Class01 DWARKA/NEW DELHI /09.07.2024