Delhi District Court
State vs Hakimuddin, S/O Munshi Khan, on 18 October, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 165/10 FIR No. 48/03 U/S: 279/333/353/186 IPC P.S: Anand Vihar State Versus Hakimuddin, S/o Munshi Khan, R/o Village Ramgarh, PS Ramgarh, District Alwar, Rajasthan. Date of Institution : 19.05.2010 Date of Arguments : 04.10.2012 Date of Judgment : 18.10.2012 JUDGMENT
1. Prosecution case, in brief, is that on 09.02.2003, an information was received at Police Post ISBT Anand Vihar vide DD No. 12 that the legs of a police official were trapped under a truck. On this information, SI Madhukar Rakesh along with Constable Amrish Kumar reached at the spot at Road No. 56, near Anand Vihar Bus Stand. Truck No. RJ02-G-1263 was lying turtle. Constable Arvind was lying injured in the cabin of the truck. His feet were trapped under the truck. Because of pain, he was not in a position to give statement to SI Madhukar Rakesh. The truck driver had fled away from the spot. No eye witness was found. SI Madhukar Rakesh made his endorsement and got the FIR registered under Section 279/337 FIR No. 48/03 1 of page 17 IPC. Fire Brigade and Disaster Management Team were called at the spot. They rescued Constable Arvind. Constable Arvind was sent to hospital. Crime team took the photographs of the spot. Eye witness HC Surender came at the spot. He gave the statement that he and Constable Arvind were on duty at Maharaj Pur Border from 8.00 pm to 8.00 am in the night of 8/9.02.2003. Constable Arvind was checking the trucks entering Delhi by virtue of the orders of the Hon'ble Supreme Court. He was returning the goods trucks which were passing through Delhi for other destinations. Truck No. RJ02-G-1263 stopped at Maharaj Pur check post for payment of toll tax. Constable Arvind asked the driver about the destination of the truck and asked him to show the bilty but the driver instead of showing the bilty, forcibly moved the truck towards Delhi. In order to stop the truck, Constable Arvind boarded the truck from the side. The associates of the truck driver pulled him in the truck with a view to prevent him from checking the bilty and caused obstruction in his duty. In this process, while driving the truck in a rash and negligent manner, injuries were caused to Constable Arvind. The truck loaded with sugar bags was seized. Notice under Section 133 Motor Vehicle Act was given to the truck owner Aman Ahmad. The owner produced the driver Hakumuddin. Hakimuddin was arrested. Mechanical inspection of the truck was conducted. MLC of Constable Arvind was obtained. Investigation was completed and charge sheet was filed under Section 279/333/353/186 IPC and 66 (1), 192 Motor Vehicle Act.
2. Initially, charge was framed under Section 186/353/332 and 279 IPC by the learned ACMM. However vide orders dated 28.04.2010, it was observed by the learned ACMM that the nature of injuries was grievous and therefore Section 333 IPC was made out. The case was FIR No. 48/03 2 of page 17 committed to Sessions Court under Section 323 Cr. PC.
3. Charge was framed by my learned Predecessor under Section 186/353/333 and 279 IPC to which accused pleaded not guilty.
4. In order to prove its case, prosecution examined 16 witnesses. PW-1 is ASI Sukhpal Ram, Duty Officer. He proved the FIR Exbt. PW-8/A. PW-2 is Sh. Ganga Ram Sharma, Toll Tax Inspector. He deposed that on 8/9.02.2003, he was posted at Maharaj Pur Border Toll Tax Post. Constable Arvind Kumar was checking the vehicles and at about 12.00 midnight, Constable Arvind stopped one truck bearing No. RJ02-G- 1263 and he checked the bilty of the truck from the driver. After checking, Constable Arvind asked him not to receive the toll tax or issue receipt of the toll tax as there was no bilty for Delhi and the driver had violated the directions of Hon'ble Supreme Court and asked the driver to take back the truck. The truck driver then started driving his truck slowly towards Delhi. Constable Arvind ran after the truck. After sometime, he came to know from HC Surender that truck driver had caused accident with Constable Arvind. Then he along with HC Surender rushed there and found that legs of Constable Arvind were entangled in the truck. He stated that the accident was caused by the driver of the truck as he wanted to enter Delhi without bilty for Delhi.
PW-3 is HC Amrish Kumar. He handed over DD No. 2 to SI Madhukar Rakesh and along with him went at the spot where he found truck No. RJ02-G-1263 lying turtle and the legs of Constable Arvind Kumar FIR No. 48/03 3 of page 17 were found entangled in the cabin of the truck. He was sent with Rukka to the police station. After registration of the FIR, he returned back at the spot and handed over the copy of FIR and rukka to the IO. The truck was seized vide memo Exbt. PW-3/A. In reply to a question, he stated that initially the driver was not present at the spot but IO called the truck owner Aman Ahmad and he produced the driver Hakimuddin.
PW-4 is ASI Surender Kumar. He deposed that on 08.02.2003, he along with Constable Arvind were checking the loaded trucks at Maharaj Pur Check Post UP-Delhi border between 8.00 pm to 8.00 am as they were having directions that in case any vehicle was bound for Delhi without bilty, then that vehicle should be sent back. He stated that a loaded truck bearing No. RJ02-G-1263 came at the check post. The truck was stopped by Constable Arvind who asked the driver to show the bilty. The driver told him that he was having the bilty of Delhi and would show him the same. In the meanwhile, the truck driver without showing the bilty sped up the truck towards Delhi and started taking turn towards Vivek Vihar. Constable Arvind ran behind the truck. He and Ganga Ram, Toll Tax Inspector also ran towards the truck. Constable Arvind attempted to catch hold of the window door of the truck in order to stop the same. Another person sitting in the cabin near the driver seat dragged Constable Arvind inside the cabin. The driver rashly and negligently drove the truck on the left side patri as a result of which, the truck turned turtle. The legs of Constable Arvind got entangled in the cabin under the truck. Immediately thereafter, the driver and conductor came out of the truck and ran away. He then informed the PCR. SI Madhukar Rakesh along with Constable came at the spot. IO informed Disaster Management and Fire Brigade. The FIR No. 48/03 4 of page 17 officials of Disaster Management and Fire Brigade took out Constable Arvind. PCR van took injured Constable Arvind to GTB Hospital. SI Madhukar Rakesh prepared the site plan Exbt. PW-3/DA on his pointing out. The truck was seized vide memo Exbt. PW-3/A. On checking the documents of the truck, IO came to know that the owner of the truck was Aman Ahmad. The owner was called. He produced the truck driver before the IO. Accused was then arrested vide memo Exbt. PW-4/A and his personal search was conducted vide memo Exbt. PW-4/B. IO seized the documents of the truck i.e. bilty produced by accused vide Exbt. PW-4/C. IO also seized the permit and the copy of insurance vide Exbt. PW-4/D. The driving license of accused was also seized vide Exbt. PW-4/E. He identified the accused Hakimuddin.
PW-5 is HC Virender Singh. He proved the Supreme Court order dated 06.12.2001 as Exbt. PW-5/B, action plan for implementation of Hon'ble Supreme Court order as Exbt. PW-5/A and the directions issued by the then DCP Satish Golcha as Exbt. PW-5/C. PW-6 is HC Mahesh. He had assisted the IO in the investigation of the case. He came at the spot with IO. He is the witness of the arrest of the accused.
PW-7 is Constable Satya Prakash from Crime Team, East District. He had taken five photographs of the spot which are Exbt. PW-7/A- 1 to Exbt. PW-7/A-5.
PW-8 is HC Chandra Shekhar, Chittha Munshi, Vivek Vihar FIR No. 48/03 5 of page 17 Traffic Circle. He stated that on 08.02.2007 at about 7.30 pm, he made an entry regarding sending Constable Arvind Kumar and HC Surender for duty at Maharaj Pur Border, Anand Vihar vide DD No. 15 Exbt. PW-8/A. PW-9 is Aman Ahmad, registered owner of the truck. He deposed that on 09.02.2003, accused was the driver of his truck. He stated that he was given notice by the police and he had filed reply to the notice which is Exbt. PW-9/A. He further stated that he produced the accused at police station after he came to know that the truck had over turned. Accused was then arrested by the police. The truck was released to him on Superdari vide Superdginama Exbt. PW-9/B. PW-10 is Constable Arvind Kumar. He is the injured.
PW-11 is retired SI Kidar Nath. He had conducted the mechanical inspection of the truck. His detailed report is Exbt. PW-11/A. PW-12 is Dr. R.K.B. Chaudhary. He proved the MLC of Constable Arvind Kumar as Exbt. PW-12/A. PW-13 is Sh. Arun Kampani, the then DCP (Traffic). He had made complaint under Section 195 Cr. PC for the prosecution of the accused under Section 186 IPC besides other relevant sections. He proved the complaint along with list of witnesses as Exbt. PW-13/A. PW-14 is Dr. Aditya Aggarwal from GTB Hospital. He stated that the nature of injuries received by Constable Arvind were grievous.
FIR No. 48/03 6 of page 17 PW-15 is Inspector Madhukar Rakesh. He is the IO of this case. During investigation, he went at the spot, called the Disaster Management Team, sent Constable Arvind to the hospital, got the spot photographed and prepared the site plan. He had seized the truck and gave notice under Section 133 of the Motor Vehicle Act Exbt. PW-15/C to the truck owner Aman Ahmad. He arrested the accused after he was produced by the truck owner and seized the bilties from the truck vide memo Exbt. PW-4/C. He had interrogated the accused and recorded his disclosure statement Exbt. PW-4/F. Statements of witnesses were recorded and action plan was collected.
PW-16 is Dr. Gopesh, Radiologist. He had examined X-Ray plates and prepared the report Exbt. PW-16/A.
5. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent. He refused to lead defence evidence.
6. Arguments have been heard from Mohd. Iqrar, Additional PP for the State and Sh. M.M. Beg, Advocate for accused. The learned defence counsel has argued that identity of accused is not proved, inasmuch as, no TIP of accused was conducted. In support of his submission, the learned defence counsel has relied on the judgment of State of Maharashtra Vs. Sukhdev Singh & Anr. AIR 1992 SC 2100 and Jaspal Singh @ Pali Vs. State of Punjab (1991) 1 SCC 510. It is further argued that there is no independent witness to the incident. There are contradictions in the testimonies of the witnesses. It is submitted that all the FIR No. 48/03 7 of page 17 eye witnesses including injured have deposed that the truck had turned turtle towards the driver side but mechanical inspection report proves the damages on the left side of the truck. With regard to the photographs, it is submitted that PW-7 stated that he had taken the photographs but PW-9 states that he had given the photographs to the police. It is further argued that PW-4 ASI Surender Kumar deposed that only one person was sitting besides the driver seat in the cabin but PW-10 stated that two persons were sitting besides the accused in the cabin of the truck and thus there is contradiction between them. It is stated that Constable Arvind Kumar was allegedly pulled into the cabin by the associate of the accused sitting in the cabin but they have not been arrested nor implicated in this case. There is no evidence that accused shared any common intention with those persons. It is thus argued that prosecution has failed to prove its case against the accused beyond doubt. The learned APP, however, has argued that PW-10 was checking the vehicles in the discharge of his official duty and accused not only caused obstruction in his duty but also caused him grievous injuries. It is submitted that the testimony of PW-10 finds corroboration from the testimonies of PW-2 and PW-4 and there is no reason to disbelieve them. With regard to the identity of the accused, it is submitted that PW-2 and PW-4 have identified the accused in court and the truck owner Aman Ahmad has proved that accused was the driver of his truck at the relevant time and thus identity of accused is proved beyond doubt. With regard to the contradictions, it is argued that same are minor contradictions not affecting the merits of the case and therefore not much importance should be given to those contradictions. It is thus argued that prosecution has been able to prove its case against the accused beyond doubt.
FIR No. 48/03 8 of page 17
7. I have considered the submissions made before the court and have given my thoughtful consideration. Section 186 IPC provides punishment for voluntarily obstructing any public servant in the discharge of his public functions. PW-10 Constable Arvind Kumar has deposed that on 09.02.2003, he was posted in Traffic Police, Vivek Vihar Circle and his duty was at the crossing in front of ISBT Anand Vihar between 8.00 pm to 8.00 am. HC Surender was also on duty with him. PW-4 ASI Surender Kumar also deposed that on 08.02.2003, he along with Constable Arvind Kumar were performing duty at Maharaj Pur Check Post, U.P.-Delhi Border, Anand Vihar between 8.00 pm to 8.00 am and were checking the loaded trucks under the instructions that in case any vehicle is found without any valid bilty for Delhi, then that vehicle shall be sent back. There is no cross examination of PW-4 and PW-10 that Constable Arvind Kumar was not performing the duty at the said place and time. The testimonies of PW-4 and PW-10 find corroboration with the testimonies of PW-2 Ganga Ram Sharma, Toll Tax Inspector who also stated that Constable Arvind Kumar was checking the vehicles. PW-8 HC Chander Shekhar, Chittha Munshi, Vivek Vihar Traffic Circle had made DD entry No. 15 with regard to the departure of Constable Arvind Kumar and Constable Surender for performing night duty at the Out Gate of ISBT Anand Vihar, Maharaj Pur Border. DD No. 15 has been proved on record as Exbt. PW-8/A. The presence of Constable Arvind Kumar at the spot has also been proved by PW-3 HC Amrish Kumar and PW-15 Inspector Madhukar Rakesh who came at the spot and found the truck lying turtle and Constable Arvind Kumar entangled in the cabin of the truck. PW-5 HC Virender Singh has proved the action plan for implementation of Supreme Court order dated FIR No. 48/03 9 of page 17 06.12.2001 Exbt. PW-5/A, copy of the Supreme Court order Exbt. PW-5/B and the directions issued by the DCP as Exbt. PW-5/C. The Hon'ble Supreme Court vide orders dated 07.12.2001 Exbt. PW-5/B issued the following directions:-
"It is, therefore, proposed that with effect from 15th January, 2002, no heavy, medium or light goods vehicles will ply on inter-state routes by passing through Delhi or New Delhi. It is only those goods vehicles which on payment of octroi/toll tax carry goods to or from Delhi which would be allowed to ply.
The Commissioner of Police is directed to formulate a Scheme in this behalf and give due publicity to all concerned and implement the same."
8. The DCP (Traffic) vide orders dated 25.07.2002 Exbt. PW-5/C issued directions that Delhi Traffic Police shall send back such goods vehicles if found plying in violation of directions within the NCT of Delhi with effect from 27.07.2002. Thus, it is evident that Constable Arvind Kumar, a public servant by checking the bilties of the trucks coming to Delhi, was acting in the discharge of his public functions.
9. PW-10 Constable Arvind Kumar deposed that at about 12.00 midnight, a truck bearing No. RJ02-G-1263, driven by accused Hakimuddin, came from the side of Ghaziabad and stopped at MCD barricade. He demanded bilty from the accused in view of the Supreme Court order that the truck will not enter Delhi which is not bound for Delhi but accused told him that he was not having any bilty with him. He then told MCD officials not to issue toll tax receipt and directed the accused to FIR No. 48/03 10 of page 17 take the truck back. He then took the truck towards the chowk for U-Turn. Accused stopped the truck before the chowk and asked him to allow him to go but he refused as he was not having any bilty for Delhi. He further stated that two more persons were sitting inside the truck besides the accused. They told him that they can show the bilty of Delhi to him. He raised his hand to collect the bilty but the person who was sitting on the front seat adjacent to the accused, caught his hand and the second person sitting on the rear behind the accused, caught the collar of his jacket. The associates of accused asked him to move the truck. Accused started the truck and accelerated the speed. He told the accused that he cannot take the truck further. Accused was unable to drive the truck properly as the person sitting adjacent to him had caught hold of his arms crossing through the accused and in this process, the truck hit the road divider at a distance of 70-100 meters from the spot. In the meanwhile, he was hanging from the truck having been caught by the associates of the accused. His feet were touching the tyre. He put his one foot on the footrest and asked the accused to stop the truck. The truck overturned towards the side in which he was hanging. He tried to go inside the truck but could not as both his feet came under the truck. He cried but accused and his two associates ran away from the other side of the truck by putting their feet on his shoulders. HC Surender and MCD officials reached there. Crane was called but it failed to remove the truck as it was loaded with 100-150 bags of sugar. The team of Disaster Management also reached at the spot after about half an hour. They cut the truck and took him out. He was then sent to GTB Hospital. In cross examination, he stated that he was pulled from the driver window side. He denied that he had forcibly boarded the truck. He denied that he had caught the steering of the truck due to which the truck got FIR No. 48/03 11 of page 17 imbalanced and turned turtle. He denied that there was darkness and there was no light at the place of barricade. He admitted that there was no light in the cabin of the truck but stated that light was filtering in the cabin from outside. He denied that light was not sufficient to see the face of the driver. He stated that the truck had turned turtle towards the driver side. He denied that he did not see the accused due to darkness or that he identified the accused since he was shown to him at the police station. He denied that he did not receive injury in the incident or that the same was caused in some other accident. He denied that his colleagues in order to enable him to get compensation and other benefits, managed the incident.
10. Admittedly, accused was not known to Constable Arvind Kumar prior to the incident. Admittedly, no TIP of accused was conducted. It is a settled law that where a witness identifies the accused who is not known to him, in the court for the first time, his evidence is absolutely value less unless there has been a previous T.I. Parade to test his powers of observation. In the present case, Constable Arvind Kumar and ASI Surender Kumar identified the accused for the first time in court without prior Test Identification Parade. However, the case does not solely depend on the evidence of identification of ASI Surender Kumar and Constable Arvind Kumar. PW-15 Inspector Madhukar Rakesh served a notice under Section 133 Motor Vehicle Act Exbt. PW-15/C to the truck owner Aman Ahmad where upon the truck owner produced the accused. The truck owner Aman Ahmad (PW-9) admits having received a notice from the police. He admits having given reply Exbt. PW-9/A to the notice under Section 133 M.V. Act. As per reply Exbt. PW-9/A, the truck was being driven by accused Hakimuddin at the time of accident and after running FIR No. 48/03 12 of page 17 away from the spot, Hakimuddin told the owner about the accident. Aman Ahmad deposed in court also that on 09.02.2003, accused was the driver of his truck. He denied the suggestion that accused was not driving truck No. RJ02-G-1263 on 09.02.2003. Thus, PW-9 has proved that accused was the driver of his truck on the relevant date and time and it was he who produced him before the police. In view of the reply Exbt. PW-9/A given by PW-9 Aman Ahmad and his testimony in court, I am of the opinion that prosecution has been able to prove the identity of accused being the driver of the offending truck.
11. If the testimony of PW-10 is to be believed, the truck turned turtle towards the driver side but PW-11 SI Kidar Nath, who conducted the mechanical inspection of the truck, found that left side of the truck was totally broken. It has been argued by the learned defence counsel that if the truck had turned turtle towards the driver side, the damages should have been found on the right side and not on the left side as stated by PW-11. PW-7 Constable Satya Prakash from Crime Team, East District had taken the photographs of the truck which have been proved as Exbt. PW-7/A-1 to Exbt. PW-7/A-5. The photograph Exbt. PW-7/A-1 proves the damage on the truck on the driver side and not on the left side as stated in the mechanical inspection report. The damages on the right side of the truck as it appear in the photograph Exbt. PW-7/A-1 are in consonance with the oral testimonies of PW-4 ASI Surender Kumar and PW-10 Constable Arvind Kumar that the truck had turned turtle on the driver side and therefore under these circumstances, I am not ready to believe the mechanical inspection report Exbt. PW-11/A. FIR No. 48/03 13 of page 17
12. PW-10 deposed that two more persons were sitting besides the accused in the cabin of the truck but according to PW-4, only one person was sitting in the cabin near the driver seat. According to PW-10, one of those persons caught his hand while other person caught the collar of his jacket. Constable Arvind Kumar (PW-10) is himself the injured in the occurrence. His testimony carries a great weight. His statement that there were two persons in the truck, one of whom caught his hand and the other caught the collar of his jacket, cannot be disbelieved vis a vis the testimony of ASI Surender Kumar who deposed about the presence of only one person in the cabin. Be as it may, this is a minor contradiction which does not affect the merits of the case and therefore cannot be given undue importance.
13. PW-7 Constable Satya Prakash stated that he had taken the photographs but PW-9 states that it was he who had given the photographs to him. In my view, this is also not a material contradiction which may affect the merits of the case.
14. Section 353 IPC provides punishment for assaulting or using criminal force to any public servant in the execution of his duty as such public servant and/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 him in the discharge of his duty as such public servant.
15. Section 333 IPC is an aggravated form of the offence. It provides punishment if such assault results in grievous injuries to the public FIR No. 48/03 14 of page 17 servant.
16. I find that the testimony of Constable Arvind Kumar (PW-10) is straight forward and cogent. The same finds corroboration from the testimonies of ASI Surender Kumar (PW-4) and Ganga Ram Sharma (PW-
2). There is no reason to disbelieve their testimonies. It has been proved from their testimonies that the associates of accused caught PW-10 and pulled him inside the truck and the accused accelerated the speed of the truck while PW-10 was still hanging from the truck and accused could not turn his truck which hit the road divider and turned turtle due to which the feet of Constable Arvind Kumar came under the truck and he received injuries. The MLC of PW-10 has been proved on record by PW-12 Dr. R.K.B. Chaudhary. PW-16 Dr. Gopesh proved the X-Ray report of Constable Arvind Kumar which shows the fracture of right first and second metatarsals and Dr. Aditya Aggarwal proved that the injuries sustained by Constable Arvind Kumar were grievous in nature.
17. Section 195 Cr. PC provides that no court shall take cognizance of any offence punishable under Section 172 to 188 of the Indian Evidence Act except on a complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. PW-13 Sh. Arun Kampani, the then DCP (Traffic) filed a complaint under Section 195 Cr. PC for the prosecution of accused under Section 186 IPC besides other relevant sections of IPC in court and therefore there is due compliance of Section 195 Cr. PC.
18. Admittedly, accused had not pulled Constable Arvind Kumar FIR No. 48/03 15 of page 17 inside the truck and it was his associates who caught him and tried to pull him inside the cabin. The learned defence counsel has argued that accused played no part in causing obstruction or injuries to the accused and it cannot be inferred that he shared common intention with the other two persons sitting in the cabin.
19. Section 34 enacts that when a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. The existence of common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. In this case, it has come in evidence that Constable Arvind Kumar was checking the trucks loaded with goods to find out if they were having valid bilty for Delhi. It is also in evidence that accused was not having any bilty for Delhi and as per Exbt. P-3 and P-4, the goods were to be delivered at Alwar. It is also in evidence that despite being asked by Constable Arvind Kumar to take U-turn, accused wanted to take the truck towards Delhi and towards that end, the associates of accused caught Constable Arvind Kumar and asked the accused to drive the truck. Accused instead of stopping the truck, accelerated the speed of the truck. Thus, it can safely be inferred that accused shared common intention with his associates to take the truck towards Delhi and thus in furtherance of common intention, voluntarily obstructed a public servant who was acting in discharge of his official duty.
FIR No. 48/03 16 of page 17
20. A person driving a vehicle should drive in such a manner so as not to put into imperil the life and safety of other persons. The accused instead of stopping the truck, continued to drive the truck while PW-10 was hanging from the truck and thus he also acted in a rash and negligent manner.
21. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty and convict him under Section 186/353/333 and under Section 279 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 18.10.2012.
FIR No. 48/03 17 of page 17