Delhi District Court
3.Title State vs . Kishan @ Lala on 5 August, 2022
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 233/03, PS Bhajanpura
2.Unique Case no. 464596/15
3.Title State Vs. Kishan @ Lala
3(A).Name of complainant Rajneesh Sharma, J.E. MCD office, C12,
Yamuna Vihar, Delhi.
3(B).Name of accused Kishan @ Lala, S/o Shri Mehar Chand,
R/o : H. No. 38, State Bank Wali Gali,
Village Ghonda, Delhi.
4.Date of institution of challan 06.05.2005
5.Date of Reserving judgment 29.07.2022
6.Date of pronouncement 05.08.2022
7.Date of commission of offence 1920.06.2003
8.Offence complained of U/s 186/353/380/34 IPC
9.Offence charged with U/s 186/353/34 IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Acquitted for the offence U/s 186/353/34
IPC
12. Date of receiving of judicial file 17.04.2013
in this court
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely Rajneesh Sharma, Jr. Engineer, MCD Office, C12, Yamuna Vihar, Delhi that on 1920.06.2003 at Gamri Road, Pump house, in front of dispensary, accused Kishan @ Lala alongwith other coaccused (not yet arrested) in furtherance of their common intention voluntarily obstructed the officials working under Shri Rajneesh Sharma, N.E. MCD office, C12 Yamuna Vihar, Delhi in discharging their public functioning and criminally assaulted State Vs. Kishan @ Lala Page 1 of 14 FIR No. : 233/2003 them and as such committed offences punishable U/s 186/353/34 IPC and within the cognizance of this Court.
2. On the basis of the complaint, FIR U/s 186/353/380/34 IPC was registered. After completion of investigation, chargesheet was filed U/s U/s 186/353/380/34 IPC.
3. On 30.11.2007 the accused was summoned and charged with offences u/s 186/353/34 IPC to which he pleaded not guilty and had claimed trial.
4. Prosecution had named total 10 witnesses in the charge sheet, out of which PW 1 is the complainant and the rest of the witnesses were either workers of MCD or the police officials.
5. PW1 is Rajneesh Sharma. He is working as JE with the MCD and at the time of incident, he was posted at C12, Pump house, Yamuna Vihar, Delhi as J.E. He deposed that on the intervening night of 19/20.06.2003 at about 12:30/1:00 AM, his staff members namely Dharmender Kumar, Surender Singh, and Devinder Singh, Keshav were on duty at Gamri Pond pump house. Some persons came there and gave abusing to his staff members and also threatened them not to come on duty. They also took away two batteries belonging to the MCD. He came to know about the incident on 20.06.2003 from his staff members. On the same day, the matter was reported to the police. He further deposed that the staff informed him that the accused persons were the same persons who had been working on contract basis previously and had been removed after the contract had ended. The name of the persons were mentioned by him in his complaint as stated by the staff members in his complaint Ex. PW1/A bearing his signatures at point A. Later on he handed over photocopy of four pages of logsheet of staff namely, Dharmender, Surender, Devinder and Keshav regarding their duty with MCD. He had also given forwarding letter dated 01.01.2004 which is placed on the muster roll and logsheet to the police officials. The forwarding letter is Ex. PW1/B bearing his signatures at point A and also bearing the signatures of Executive Engineer at point B. Photocopy of State Vs. Kishan @ Lala Page 2 of 14 FIR No. : 233/2003 muster roll and logsheet is mark A1 to mark A2 and logsheet are mark A3 to mark A6 were given to the police. He was cross examined by Shri A.A. Khan, Counsel for accused wherein he deposed that the information regarding the incident was given to him at about 8:00 AM on 20.06.2003. They went to the police station at about 8:30 AM. They went to the spot on 20.06.2003 after going to the P.S. He deposed that he was not an eye witness to the said incident. He further deposed that he did not know if accused Kishan @ Lala was employed by contractor or not. However, contractor was given contract by MCD to get the person employed. He denied the suggestion that accused has been falsely implicated in the present case in connivance with the police. He denied the suggestion that he was deposing falsely.
6. PW2 is Keshav. He deposed that he is posted as beldar in MCD. On the day of incident, he alongwith Devender (beldar) were performing duty at C12, Yamuna Vihar, pump house and his duty timings were 4:00 PM to 12:00 midnight. At about 10 or 11 PM, one Arvind Sharma (beldar) came at C12, Yamuna Vihar pump house where they were performing their duty and stated to them to go to Gamri pond Pump house for performing duty there as J.E. Rajneesh Sharma had directed so. He alongwith Devender went to Gamri pond pump house and reached there at about 11:30 PM or midnight 12:00. There was darkness all around and there was no electricity. They performed their duty there. In the night hour, rain also started coming. One Dharmender, who was Fitter at Gamri pond pump house went to run the generator but did not find battery of the generator and he told this fact to him at about 4:00 PM. In the morning, they told this fact to J.E. Rajneesh Sharma. When they reached at Gamri pond pump house, they found that Dharmender and Surender were performing their duty over there. As the witness was slightly resiling from his earlier statement, he was cross examined by Ld. APP for the State. He further deposed that the date of incident was 19.06.2003. He denied the suggestion that when on the day of incident at about 11:30 PM to 12:00 midnight, they reached State Vs. Kishan @ Lala Page 3 of 14 FIR No. : 233/2003 Gamri Pond pump house they saw many public persons were standing there. He denied the suggestion that one person namely, Kishan @ Lala was also present with the aforesaid person. He denied the suggestion that he knew Kishan @ Lala before the incident. He denied the suggestion that Kishan @ Lala was threatening the aforesaid Dharmender and Surender and stated to them to not to perform their duty and at that time pumps were closed. He denied the suggestion that Kishan @ Lala Ram was also threatening him and aforesaid Devender and stated to them that he should not perform his duty and if he performed his duty over there, then he shall break his hands and legs. He further denied the suggestion that Kishan @ Lala and other public persons were present there and left the spot after abusing and threatening them. He denied the suggestion that Dharmender (fitter) at aforesaid Gamri pond pump house stated that aforesaid Kishan @ Lala stopped forcibly all the pumps. He further deposed that he with the help of his colleagues started the pumps again. He further deposed that at about 4:00 AM, he checked the generator and found two big batteries stolen and wire of the batteries were in broken condition. He further deposed that Dharmendra and Surender Singh had told them that when they came on duty at about 8:00 PM, all the batteries of generator were intact at that time. He denied the suggestion that he had doubted that accused Krishan @ Kishan @ Lalaram with his associates had stolen the government batteries. He denied the suggestion that he can identify the associates of accused Lala Ram. He has further deposed that on the next morning, he had informed the JE about the facts of the case and they had lodged the report with police in this regard. He was cross examined by counsel for accused wherein he deposed that police had not recorded his statement. He further deposed that he was not summoned in the PS in connection of the present case. He further deposed that he had not seen the accused at the spot.
7. PW3 is HC Om Prakash who was posted as Duty Officer with PS Bhajanpura on the said day. He has proved the registration of FIR on the basis of the rukka State Vs. Kishan @ Lala Page 4 of 14 FIR No. : 233/2003 received through Ct. Ved Prakash at about 11:06 AM, copy of the said FIR is Ex. PW3/A and his endorsement on the rukka is Ex. PW3/B.
8. PW4 is Devender Sharma, a beldar in MCD. He has deposed that on 19.06.2003, he was on duty at Yamuna Vihar pump house from 4:00 PM to 8:00 AM. At about 10:30 PM, he was informed by baildar Arvind that by virtue of order passed by J.E. Rajneesh Sharma, he alongwith Keshav Singh had to attend duty at Gamri pump house. Thereafter, he went to Gamri pump House on foot and reached there at about 11:30 Pm to 12:00 am. There two boys namely, Dharmender and Surender were already on duty. He deposed that he does not know anything about the incident nor he had witnessed anything. On the next day in the morning, concerned J.E. moved the complaint before the PS Bhajanpura. As the witness was resiling from his earlier statement, he was cross examined by Ld. APP for the State wherein he stated that he was educated upto 10th std. His statement was recorded by the police on the next day of incident. The witness failed to identify Kishan @ Lala present in the court. He denied the suggestion that the accused present in the court had threatened him, Dharmender and Surender not to perform the duty. He further denied the suggestion that accused had stolen the battery which were placed at the Gamri pump House. He denied the suggestion that he had been deposing falsely as he had been won over by the accused. He further denied the suggestion that he had received money from the accused and that is why he was not stating the correct facts before the court. He was not cross examined by counsel for accused despite opportunity being given for the crossexamination by counsel for accused.
9. PW5 is Dharmender. He has deposed that on 19.03.2003, he was on duty as Assistant Pump Driver at Yamuna Vihar pump house from 4:00 PM to 8:00 AM. At about 11:30 PM to 12:00 AM, some antisocial elements were wandering at the pump house and the pump house and those anti social elements left the place after some time. In the morning, the weather got deteriorated and there was a power failure for some and few meters away from the pump house, a State Vs. Kishan @ Lala Page 5 of 14 FIR No. : 233/2003 generator house was situated which is an open room without any door and when he went there and tried to operate the generator, he noticed that batteries were missing and he reported the matter to his superior officer i.e. J.E. Rajneesh Sharma. Thereafter, he went to his home. No quarrel took place in his presence. As the witness was resiling from his earlier statement, he was cross examined by Ld. APP for the State wherein he deposed that he is educated upto B.A. His statement was not recorded by the police and police only asked his name and address. On the relevant day, he was on duty with Surender and Devender and later on Keshav was sent to perform duty alongwith him. The witness failed to identify the accused Kishan @ Lala who was present in the court. He denied the suggestion that he was deliberately not identifying the accused persons as he had been won over by him. He further denied the suggestion that accused was arrested at his instance by the police. He further denied the suggestion that accused was arrested in his presence and his personal search memo and arrest memo were being prepared in his presence. He accepted the fact that the arrest memo Ex. PW5/B and personal search memo of the accused Ex. PW5/C were bearing his signatures at point A. On being asked if he had signed Ex. PW5/B and Ex. PW5/C after going through the same, he answered that he had signed the same but the said papers were blank at that time. He further stated that he had not given any written complaint before the competent authorities i.e. Commissioner of Police, though he had mentioned the said fact to his J.E. He denied the suggestion that he was deposing falsely in this regard. He denied the suggestion that on the day of incident, the accused persons had come to the pump house alongwith 1015 associates and threatened him, Devender and Surender to refrain from working at pump house. He further denied the suggestion that accused person had stolen the battery of the generator. He denied the suggestion that he had been deposing falsely as he had been won over by the accused. He was cross examined by Shri A.A. Khan, Counsel for accused wherein he stated that there was darkness at the spot and there was no electricity on the day of incident. He further stated that on the assurance of J.E. regarding State Vs. Kishan @ Lala Page 6 of 14 FIR No. : 233/2003 initiating action, his signatures were taken on blank papers. He further deposed that he had been called once or twice by the police officials but thereafter, he was never called again.
10. PW6 is Ct. Shiv Bodh Singh. He has deposed that on 10.08.2003, he was posted at PS Bhajanpura as constable. On that day, he joined the investigation of the present case with IO/SI Ved Rai Singh. On that day, person namely Dharmender had also accompanied him and they all went to Gamri Road, State Bank wali gali, Ghonda and there Dharmender pointed out towards one boy who was standing in a gali and he was apprehended by them. The name of the accused was revealed as Lala @ Kishan. The witness correctly identified the accused present in the court. Thereafter, accused was arrested by the IO but nothing was recovered from his possession. The disclosure statement of accused was recorded by the IO. The pointing out memo of the place of occurrence had been prepared by the IO at the instance of accused. The disclosure statement of the accused Ex. PW6/A, pointing out memo Ex. PW6/B and both the memos bear his signatures at point A. The arrest memo and personal search memo is Ex. PW5/B and Ex. PW5/C respectively bear his signatures at point B. He was cross examined by Shri A.A. Khan, Ld. Counsel for accused wherein he stated that he does not remember the exact time when they reached at the spot. At the spot 23 persons were already present. IO had asked the public persons to join the investigation but they refused. No written notice was served upon those public persons. IO had recorded the departure entry before leaving the PS. He deposed that he cannot tell the DD number vide which they left the PS. He denied the suggestion that accused had been falsely implicated at the behest of the complainant Dharmender. He denied the suggestion that all the proceedings were conducted at the PS. He denied the suggestion that he was deposing falsely at the instance of the PO.
11. PW7 is Surender Singh. He has deposed that on the intervening night of 19/20 June, 2003, he was working at Gavni Pond Pump House. On that day, State Vs. Kishan @ Lala Page 7 of 14 FIR No. : 233/2003 Dharmender, Keshav and Devendra were also on duty with him. At night, 78 boys came to the pump house and started hot talks with Dharmender. He asked Dharmender about the said boys, he replied that the said boys belonged to local colony. Thereafter, all the boys left the spot. He made to call to JE. JE sent a boy namely, Arvind to the spot. He told all the facts to him. At night time, he tried to start the generator but the battery of the generator was not found there. He told the said fact to the JE in the morning. JE took his signatures as well as of Keshav, Dharmender and Devendra on blank papers. JE complained to the police regarding the facts of battery of generator. He was cross examined by Shri A.A. Khan, Counsel for accused wherein he stated that he cannot tell the distance between Ghonda and Gavni Water Pump. He further deposed that on the day of incident there was no electricity. Weather was also bad at night. He did not see any quarrel with Dharmender. He denied the suggestion that he was deposing falsely.
12. PW8 is retd. SI Ved Raj Singh. He has deposed that on 27.07.2003, he was posted at PS Bhajanpura. On that duty officer handed over to him the complaint/tehrir lodged by complainant. Tehrir is Ex. PW1/A bearing his signatures at point B. FIR Ex. PW3/A was got registered on the basis of statement of complainant. He went to the spot and prepared the site plan Ex. PW8/A bearing his signatures at point A. On the pointing out of complainant, he arrested the accused vide arrest memo Ex. PW5/B bearing his signatures at point C and personally searched him vide memo Ex. PW5/C bearing his signatures at point C. He recorded the disclosure statement of accused Ex. PW6/A bearing his signatures at point B. He prepared the pointing out memo at the instance of the accused which is already Ex. PW6/B bearing his signatures at point B. He took one day PC remand of accused and searched the other accused but they were not found. After that he sent the accused to JC. Thereafter, present case file was handed over to MHC(R) vide order of SHO. He correctly identified the accused present in the court. He was cross examined by Ld. State Vs. Kishan @ Lala Page 8 of 14 FIR No. : 233/2003 Counsel Shri A.A. Khan for accused wherein he stated that his duty hours on that day were on 8:00 AM to 8:00 PM as Emergency Officer. He does not remember who handed over the tehrir to him. The date of incident was 19/20 June, 2003. They did not receive any information on the next day after the incident. He prepared the site plan in the presence of Surender. He denied the suggestion that he prepared the site plan in the presence of Surender. He recorded the statement of Surender on 30.07.2003. He denied the suggestion that he did not record the statement of Surender. He also recorded the statement of Ct. Shiv Bodh and other public witnesses. He denied the suggestion that he did not record the statement of any other public witnesses. He did not meet any public person during investigation at the spot.
13. PW9 is Jaswant Kumar. On 06.05.2004, he was posted as Executive Engineer, MCD Office of EE (E&M), CSE TYPE II, Lucknow Road, Timarpur, Delhi as Executive Engineer. On the said day, he had made the permission U/s 195 Cr.P.C. of prosecution with respect to the present case against the accused Kishan @ Lala. Same is Ex. PW9/A bearing his signatures at point A on the complaint of Mr. Rajnish Sharma made at PS Bhajanpura. He had also produced the documents with respect to the salary and attendance record of the person namely, Dharmender, Surender, Devender and Keshav already mark A1, A2, A3, A4, A5 and A6 (colly 8). He was cross examined by Shri A.A. Khan, Ld. Counsel for accused wherein he stated that the workers named above were on musteroll i.e. on temporary basis. The JE Mr. Rajnish Sharma had narrated all the facts with respect to the present case to him. He does not have any personal knowledge with respect to the present incident, though on the date of incident, JE Mr. Rajnish Sharma had called him and narrated the facts to him. On the next day, he visited the spot where the present incident had occurred. Police did not record his statement. He denied the suggestion that the present FIR had been registered on the instance of Rajnish Sharma due to jealousy with the accused. He further denied the suggestion that no such incident had taken State Vs. Kishan @ Lala Page 9 of 14 FIR No. : 233/2003 place or that he was deposing falsely.
14. PW10 S.R. Meena was dropped as he had already expired.
15. Thereafter, the state closed the prosecution evidence on 30.06.2022 and matter was fixed for statement of accused under section 281 Cr.P.C. r/w 313 Cr.P.C. for 12.07.2022 wherein he stated that he did not assault J.E. and a false case had been registered against him nor did he steal any government battery.
16. Final arguments were addressed by Ld APP for the state Shri Rajesh Kumar and by Ld Defence Counsel Shri A.A. Khan.
17. I have heard the submissions of both the parties and perused the material on record. However, before proceeding to the merits of the case, I wish to first refer to the relevant provisions of law.
Section 186 of IPC provides as under : "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."
Section 353 of IPC provides as under : "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."
State Vs. Kishan @ Lala Page 10 of 14 FIR No. : 233/2003
18. Hon'ble Apex Court in a three judge bench case, titled as Durga Charan Naik Vs. State of Orissa 1966 AIR 1775 observed as under : "It is true that most of the allegations in this case upon which the charge under section 353 IPC is based are the same as those constituting the charge under section 186 IPC but it cannot be ignored that section 186 and 353 IPC relate to two distinct offences and while the offences 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 IPC is applicable to a case where the accused voluntarily obstructs a public servant in discharge of his public functions but under section 353 IPC, 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 IPC occurs in chapter X of IPC dealing with contempt of lawful authority of public servants, while section 353 IPC occurs in chapter XVI regarding the offences affecting the human body. It is well established that section 195 Cr.P.C. 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."
19. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offences. The present case was registered on the basis of complaint of PW1 Rajnish Sharma. He deposed that on the intervening night of 1920th June, 2003, at about 12:30 / 1:00 AM, his staff members namely, Keshav (PW2), Devender (PW4), Dharmender (PW5) and Surender (PW7) were threatened and given abuses by some people. The said people also took away two batteries belonging to MCD. He further deposed that he was informed by the staff members about the incident on 20.06.2003 and his staff members also informed him that the persons were the same who were removed after the contract ended. He also stated that he mentioned the name of the persons as informed to him by the staff members in his complaint Ex. PW1/A. In his crossexamination, he stated that the information was received at about 8:00 AM on 20.06.2003 and he lodged the complaint with the PS at about 8:30 AM. However, perusal of complaint Ex. PW1/A shows that the same was State Vs. Kishan @ Lala Page 11 of 14 FIR No. : 233/2003 received at the PS on 27.07.2003 at 11:00 AM which is Ex. PW3/B and the FIR on the basis of said complaint was also lodged on 27.07.2003 which is Ex. PW3/A. The delay in the lodging of the complaint has been left unexplained by the prosecution. In the absence of explanation of delay, this raises doubt regarding the veracity of the version of the prosecution. While the delay in lodging the complaint in itself is not fatal, there are also other material inconsistencies in the case of the prosecution. PW1 in his crossexamination specifically admitted that he did not witness the incident and the complaint was given on the basis of the information given by the staff members. Hence, his evidence is based upon heresay.
20. Further, PW5 Dharmender is the star witness of the prosecution. Since the case of the prosecution is that PW5 Dharmender was obstructed from performing his duty by use of force and threats were also extended to him by the accused and his associates, it was imperative that he supported the case of the prosecution. However, in his testimony, he specifically stated that no quarrel took place in his presence. He further deposed that on 19.06.2003, at about 11:30 PM to 12:00 AM, some anti social elements were wandering at the pump house and using filthy and abusive language but he remained inside. As the witness had resiled from his previous statement under section 161 Cr.P.C., he was confronted with the same by Ld. APP for the State and cross examined by the prosecution but he failed to identify the accused and stated that he had seen the accused for the first time in court. He also denied the veracity of the search memo Ex. PW5/B and arrest memo Ex. PW5/C and stated that his signatures were taken on blank papers. Surprisingly, he also denied that the accused was arrested in his presence. He stated that at the time of incident, there was darkness as there was no electricity and therefore, he could not have seen the said anti social people who came at the time of incident.
21. Additionally, the other eye witnesses PW2 Keshav, PW4 Devender and PW7 State Vs. Kishan @ Lala Page 12 of 14 FIR No. : 233/2003 Surender have also not supported the case of the prosecution. PW2 Keshav denied the presence of the accused at the time of incident. Though PW2 admitted that two batteries were missing after the incident but no recovery has been made from the accused. Further, PW4 Devender also denied seeing the accused at the time of incident or receiving of threats from the accused. He also stated that he had seen the accused for the first time in court. PW7 Surender also did not support the case of the prosecution and stated that there was no electricity at the time of incident and weather was bad at night. He further stated in his crossexamination that he did not see any person having quarrel with PW Dharmender on the day of incident.
22. Remaining witnesses are formal witnesses who merely prove the registration of FIR, sanction u/s 195 Cr.P.C. and who have either joined or conducted the investigation and were not the eye witnesses of the incident. None of the material prosecution witnesses, however, have supported the case of the prosecution. Material prosecution witnesses however, turned hostile and hence put a question mark regarding the veracity of the prosecution's version. In these circumstances, in view of the volteface of the eye witnesses who were the victims of the incident, this court finds their testimony unreliable. It is trite to state that in a criminal case it is for the prosecution to establish its case beyond all reasonable doubts. Burden of proof is on the prosecution to establish the chain of circumstances linking the accused with the crime and travel the mental distance from the point that the accused 'may have' to 'must have' have committed the crime. In the present case, in view of material inconsistencies and unreliability of the eye witnesses as well as the victims who resiled from the previous statements, the benefit of doubt necessarily has to go to the accused. This court is at pain regarding the unfortunate fate of the case as all the material prosecution witnesses and the victim have turned hostile. Accordingly, prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence, accused Kishan @ Lala stands acquitted for the offences U/s State Vs. Kishan @ Lala Page 13 of 14 FIR No. : 233/2003 186/353/34 IPC. As the accused is on bail, his surety stands discharged. Original documents, if any, be returned after cancellation of endorsement.
23. File be consigned to the Record Room as per rules.
Digitally signed by RUPINDER RUPINDER SINGH
SINGH DHIMAN
Date: 2022.08.05
DHIMAN 16:47:26 +0530
Announced in the (RUPINDER SINGH DHIMAN)
Open Court on 05.08.2022 Metropolitan Magistrate01
KKD Courts, Delhi
05.08.2022
It is certified that this judgment contains fourteen (14) pages and each page bears my signature. RUPINDER Digitally signed by RUPINDER SINGH DHIMAN SINGH Date: 2022.08.05 16:47:42 DHIMAN +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate01 NE/KKD Courts, Delhi 05.08.2022 State Vs. Kishan @ Lala Page 14 of 14 FIR No. : 233/2003