Delhi District Court
State vs Bijender & Anr. on 21 December, 2012
IN THE COURT OF MS. SHUCHI LALER METROPOLITAN MAGISTRATE - 04 : EAST:
KARKARDOOMA COURT : DELHI.
FIR No. 272/2002
U/s 186/353/332/365/34 IPC
PS VIVEK VIHAR
STATE Vs BIJENDER & ANR.
JUDGMENT:
A Sr. No. of the case 02402R0120072003
B Date of institution 22.03.2003
C Date of commission of 02.09.2002
offence
D Name of the complainant Sh. Shree Pal S/o Late Sh. Fateh Singh
E Name of the accused & (1). Bijender S/o Sh. Baljeet Singh R/o H. No.
his parentage and address C2/224, Yamuna Vihar, Delhi.
(2). Yunus S/o Sh. Shirdani R/o H. No.210,
Gali No.7, Mandawali Village, Delhi.
F Offence complained of U/S 186/332/353/365/34 IPC
G Plea of the accused Pleaded not guilty
H Order Reserved on 21.12.12
I Final order Convicted for offence under Section
186/332/353/34 IPC
Acquitted for offence under Section 365 IPC
J Date of such order 21.12.12
BRIEF FACTS AND REASONS FOR DECISION
1) The prosecution case, in brief, is that on 02.09.2002, the complainant was
State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.1of 22
working as a driver of DTC bus bearing no. DL1PA3209 which used to run between Dilshad Garden Depot to Anand Vihar. Mr. Babu Ram was the conductor of the said bus. When the complainant was crossing the Surya Nagar red light, a motorcyclist came in a fast speed and he collided with a divider, thereafter, the motorcyclist left the spot. The complainant while driving his bus reached Ram Prastha Red Light, the driver of the Indica car bearing no. DL5CB4280 parked his car in front of the DTC bus and three boys came out from the said car and forcibly pulled the complainant out of the bus and gave beatings to him. The boys were instigating the public persons saying that the complainant should be beaten as he has caused injuries to a man. The bus conductor Mr. Babu Ram ran away from the spot and the three boys forcibly made the complainant sit in the Indica car bearing no. DL5CB4280 and brought him to the Karkardooma court and demanded Rs. 20,000/ from the complainant. The said persons retained the licence and ID card of the complainant. The boys asked the complainant to arrange Rs.20,000/ and bring the said amount at Karkardooma courts. The complainant reached the spot where a PCR Van and both accused were present. It was informed to the complainant that the third boy had fled away.
2) After investigation, charge sheet u/s 186/353/332/365/34 IPC was filed. Copies as required u/s 207 Cr.P.C. were supplied. Charge for offence punishable u/s 186/353/332/365/34 IPC was framed against both accused by the Ld. Predecessor Judge vide order dated 22.05.2004 to which both accused pleaded not guilty and claimed trial.
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3) In order to substantiate the charges, the prosecution has examined six witnesses.
4) PW1, the complainant, Sh. Shree Pal, deposed that on 02.09.2002, he was working as a driver on bus bearing no. DL1PA3209 which used to run between Dilshad Garden Depot to Anand Vihar and Babu Ram was the conductor of the said bus. PW1 narrated the incident and deposed that when he had reached at Ram Prastha Red Light at around 10 am, a car bearing no. DL5CD4280 came from behind and the driver of the car parked his car in front of the bus and the boys inside the car raised alarm ¨maro maro, ye driver, ek admi ko mar aya hai¨. The three boys inside the car got down and pulled PW1 from the bus and gave beatings to him. PW1 stated that the conductor saved himself and ran away from the spot and all the boys gave beatings to him and had forcibly put him in the car and had brought him to Karkardooma Courts. PW1 has further stated that the said boys demanded Rs. 20,000/ and had taken his licence and ID card. He stated to the boys that he cannot give Rs. 20,000/ and the boys instructed him to bring Rs. 20,000/, PW1 testified that he reached at Ram Prastha Red Light where he found his bus parked, in the meanwhile, police officials also came at the spot and recorded his statement Ex.PW1/A. PW1 correctly identified the accused persons and stated that his ID card and Driving licence were recovered from the accused persons and the same were taken into possession vide memo Ex.PW1/B & Ex. PW1/C and the car was taken into possession vide memo Ex.PW1/H. He deposed that he had shown the place of occurrence to the police officials and the site plan Ex.PW1/I was prepared. State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.3of 22
5) In his cross examination, PW1 stated that there were some police personnel alongwith Traffic Police Jeep were present at the time of incident. PW1 denied the suggestion that the motorcyclist had struck against his bus and after the collision, he took away his bus towards Anand Vihar ISBT. PW1 admitted that the accused persons had taken him to Karkardooma courts. He stated that the accused persons demanded money from him and let him go to take the same from Karkardooma Courts and the accused persons had left him outside the court complex. PW1 admitted that a number of public persons as well as police persons were present at that time. He stated that he did not stop at any of the police post and directly went at the spot. PW1 admitted that neither he got himself medically examined nor the police got him medically examined. PW1 denied the suggestion that his bus had hit the motorcycle and public persons had gathered at the spot and due to the fear of being beaten by the public persons, he had left the spot. PW1 also denied the suggestion that all the activity took place at the PS and he had already handed over his licence and ID card to the police and no recovery was made from the accused persons.
6) PW2, Sh. Babu Ram, deposed that he was working as a conductor of DTC bus bearing no. DL1PA3209 and Shree Pal was the driver of the said bus. PW2 stated that at around 9 am, at Ram Prastha Red Light, an Indica Car came from behind and the boys inside the car raised alarm that the driver of the bus had hit a motorcyclist. All the boys had taken out the driver and gave beatings to the driver. PW2 stated State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.4of 22 that he saved himself and ran away from the spot. In cross examination by Ld. APP for state, PW2 admitted the date of occurrence to be 02.09.2002 and the number of Indica car as DL5CB4280.
7) In his cross examination by Ld. Defence counsel, PW2 denied the suggestion that accident had taken place with motorcycle. He stated that when the bus was standing 50100 persons had gathered. PW2 stated that four persons had given beatings to driver Shree Pal and he had ran away from the spot. PW2 stated that he was present at the spot when the PCR Van came alongwith the driver Shree Pal Singh. PW2 denied the suggestion that the driver of the bus was not taken by the accused persons in his presence. PW2 also denied the suggestion that the accused persons never took the driver of the bus and all such incident never took place.
8) PW3, Ct. Pritam Singh, deposed that on 02.09.2002, he alongwith SI Lekh Raj reached at the spot, where they found DTC Bus no. DL1PA3209 and its driver Shree Pal. IO recorded the statement of the driver Shree Pal, in the meanwhile, HC Ved Pal came at the spot and both the accused and Indica bearing no. DL5CB4280 were also produced. PW3 stated that IO prepared the tehrir and handed over the same to him for registration of the case. PW3 got the case registered and the car, the driving licence and the ID card of the complainant were taken into possession vide memo Ex.PW1/H, Ex.PW1/B and Ex.PW1/C in his presence. The accused were arrested vide memo Ex.PW1/F & Ex.PW1/G and their disclosure statements Ex.PW3/A & Ex.PW3/B were recorded.
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9) In his cross examination, PW3 stated that they had reached the spot at around 10.3011.00 a.m. He stated that he does not remember the persons who were present at the spot when he reached there. PW3 admitted that in his statement which was recorded by the IO, the number of Indica car has been mentioned DL5CB 2380. He denied the suggestion that nothing was recovered in his presence and all proceedings were conducted in the PS. PW3 was reexamined by Ld. APP for state and in his reexamination, PW3 stated that the correct no. of car was DL5CB4280 and in his statement made to the IO, he had not given attention to the number of the car which was written by the IO. He stated that he was under the impression that the number mentioned by IO would be correct but the correct number was DL 5CB 4280.
10) PW4, DO, W/ASI Anita Rani, deposed that on 02.09.2002, on the basis of the rukka brought by Ct. Pritam, she registered the present FIR Ex.PW4/A. No cross examination of the said witness has been conducted.
11) PW5, Inspector Lekh Singh deposed that on 02.09.2002, on receiving DD No. 16 A, he alongwith Ct. Pritam reached at the spot where driver Shree Pal met them and he recorded the statement of the driver Ex.PW1/A. In the meanwhile, PCR Van came at the spot alongwith the accused persons and the Indica car and the bus driver duly identified the accused persons. PW5 prepared the rukka and got the case registered through Ct. Pritam. At the instance of the complainant, he prepared State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.6of 22 the site plan Ex.PW1/I and seized the Indica car vide memo Ex.PW1/H. He also seized the ID card of the complainant which was in the possession of accused Bijender Singh vide memo Ex.PW1/B and had seized the D/L of the complainant which was in possession of accused Yunus vide memo Ex.PW1/C. PW5 arrested the accused vide memo Ex.PW1/F and Ex.PW1/G and conducted their personal search vide memo Ex.PW1/D and Ex.PW1/E. He recorded the statements of witnesses, prepared the challan and filed it in the court.
12) PW5 in his cross examination, stated that the driver and the bus conductor were present at the spot. PW5 admitted that vide DD Entry, an information regarding accident was given. He volunteered and stated that vide same DD Entry, abduction of the complainant, driver Shree Pal was also reported. PW5 stated that he had requested 34 passersby to join the investigation but none agreed. He denied the suggestion that the manager and other officials of the Depot came at the spot. He further denied the suggestion that the accused persons have been falsely implicated in the present case as the complainant is a Govt. Servant and all the writing work was done while sitting in the PS.
13) PW6, SI Ved Pal (inadvertently examined as PW5) deposed that on 02.09.2002, he was posted in PCR East Zone and at about 11.50 am, a person namely Babu Ram came to him and told him that some persons have beaten the driver of DTC bus and have abducted him and taken him in Indica Car. PW6 further stated that Mr. Babu Ram told him that the driver has been taken to Karkardooma court. He flashed State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.7of 22 the message to control room and he alongwith his staff reached Karkardooma court where they found the car alongwith two persons and he took both the persons alongwith the Indica car to the spot and handed over to the IO.
14) PW6 in his cross examination, admitted that the conductor Babu Ram came to their base at Ram Prastha Red Light. He stated that the statement of the complainant was recorded in his presence. PW6 admitted that he had received the information that an accident has taken place between the bus and scooter and he had not made any inquiry regarding the said accident. He denied the suggestion that he is deposing falsely to save the bus driver and conductor as they are Government Employees.
15) Statements of both accused were recorded, wherein, they claimed to be innocent and to have been falsely implicated in the present case in collusion with the complainant. Both accused have not preferred to lead DE.
16) I have heard the Ld. APP for State and the Ld. Defence Counsel and have perused the record.
17) After considering the rival submissions advanced at bar and going through the material on record, I am of the opinion that the prosecution has established the charges for offence punishable under Section 186/332/353/34 IPC beyond reasonable doubt, however, both accused deserve to be acquitted for offence under State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.8of 22 Section 365 IPC.
18) Before adverting to the evidence brought on record, it would be apposite to briefly refer to the provisions of the law as contained in the Indian Penal Code. Section 186 IPC reads ¨Whoever voluntarily obstruct any public servant in discharge of his public function, shall be punished with imprisonment of either description for a term which may extent to three months or with fine which may extent to Rs. 500/ or with both¨.
19) Section 332 IPC provides punishment for voluntarily causing hurt to any public servant in discharge of his duties or with intend to prevent or deter that person / public servant from discharging their duties as such public servant. The punishment is upto three years or fine or both.
20) As per Section 353 IPC, whoever assaults or uses criminal force to any public servant in execution of his duties as such public servant, shall be punished with imprisonment upto two years or fine or both.
21) Section 365 IPC reads ¨Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine¨.
22) Having set out the relevant provisions of law to some extent, now coming to the State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.9of 22 appreciation of evidence recorded in the present case. The prosecution case primarily hinges on the ocular version contained in the testimony of the complainant/PW1 and the eye witness/PW2. PW1 has categorically deposed that on 2.09.2002, when he was working as a driver of DTC Bus bearing no DL 1PA 3209 and had reached Ram Prastha red light, a car bearing no DL 5CD 4280 came from behind and the car who was parked in front of his bus. The three boys inside the car came down, pulled out PW1 from the bus and gave beatings to him. The deposition of PW1 has been devoid of any material contradiction or improvement. He has maintained complete fidelity to his earlier statement made to the police Ex PW1/A. PW1 has correctly identified both accused as the assailants.\
23) The testimony of the complainant has been duly corroborated by the Bus Conductor/ PW2 who has consistently deposed about the incident. PW2 testified that in the year 2002, PW1 was the driver of DTC bus bearing no DL 1PA 3209 and he was the conductor of the said bus and when they had reached Ram Prastha red light, one Indica car came from behind and the three boys had taken out the driver of the bus and gave beatings to the driver and he saved himself and ran away from the spot. PW2 duly identified both accused in the Court. Nothing substantial has been brought during his cross examination which could discredit his testimony.
24) From a conjoined reading of the testimony of the complainant/PW1 and the eye witness/PW2, it stands proved that on 2.09.02, both accused had voluntarily obstructed PW1, a driver of DTC Bus bearing no DL 1P A3209 in discharge of his State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.10of 22 public duties and had used criminal force against PW1 and had caused simple hurt to him.
25) During the course of arguments, the Ld Defence Counsel submitted that the prosecution story suffers from various loopholes and the prosecution has miserably failed to bring home the guilt against the accused. The Ld Defence Counsel has raised the following contentions :
(1) The provisions of Section 195 Cr.P.C have been ignored as no written complaint has been filed on record by the concerned public servant and the document dated 17.12.02 cannot be construed to be a complaint as it is a mere exemption application moved by depot manager. The Depot Manager has also not been examined, non examination of the sanctioning authority is fatal to the case of prosecution.
(2) No medical examination of PW1 has been conducted; hence, prosecution could not prove that the complainant had sustained any injury. (3) Despite there being availability of public witnesses, having failed to join any: adverse inference has to be taken and a reasonable doubt arises with respect to genuineness of the prosecution version.
(4) The prosecution case is false as there a lot of inconsistencies and improvements in the testimony of PW1 and PW2. PW1 and PW2 cannot be termed reliable witnesses.
(5) The complainant and the bus conductor in connivance with the police State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.11of 22 officials have falsely implicated both accused. The complainant had hit a motorcyclist and due to the fear of being beaten by public persons the complainant fled leaving behind the bus and has falsely implicated both accused whose car was standing at the spot.
26) I would now be dealing with the contentions sequentially. In order to initiate prosecution for offence punishable under Section 186 IPC, the pre condition is a written complaint to be filed by the concerned public servant or by some other public servant to whom he is administratively subordinate as envisaged under Section 195 Cr.P.C. A complaint made by Mr D.K. Singh, Depot Manager dated 17.12.02 along with list of witnesses before Ld ACMM, Karkardooma Courts is on record.
27) Ld Defence Counsel vehemently urged that it is not a proper complaint and the only prayer was for exemption, therefore, on the basis of such a complaint, no offence under Section 186 IPC can be said to be made out. In order to appreciate the argument, the relevant portion of the complaint is reproduced herein:
"The facts of the case are that on 2.09.2002, DTC Bus Driver Shripal was going to Anand Vihar Bus Terminal from Dilshad Garden Depot and was driving Bus No DL1PA3209, when he reached at Surya Nagar red light, a motorcyclist met with an accident with divider. When the DTC bus driver reached near Red light Ram Prastha one Indica Car Driver stopped his car no State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.12of 22 DL5CB280 in front of bus and 3 persons came down from the car and beaten the DTC driver and abducted him forcibly and demanded Rs 2000.00 above said accused assaulted the driver Sripal during Govt. duty.
That the undersigned is the permanent employee of the department and it is not possible for me to attend the court on each and every date of hearing. My presence in the Court may kindly be exempted through the prosecutor attach with the Court."
28) Section 2(d) of Cr.P.C. defines the complaint to mean any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report. No particular form is prescribed in which the complaint should be made and the substance of the complaint that is to be read. It is not necessary that it should categorize elements of the offence to be charged. It is enough that the facts alleged should constitute an offence for which the accused is charged. It does not matter even if the complainant quotes wrong Sections. The complaint is meant to put the machinery of law in motion. Whether allegations were made with a view to take action against the accused would depend upon the facts and circumstances of the case.
29) In the instant case, the complaint dated 17.12.02 had been filed along with the chargesheet. In the said complaint, facts of the present case have been narrated and State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.13of 22 a request has been made for launching prosecution under Section 186/332/353/365/34 IPC against both accused. After reading the document dated 17.12.2002, it cannot be said that it does not contain essential ingredients of complaint as defined in Section 2(d) Cr.P.C. Merely because a request for personal exemption has also been incorporated in the document dated 17.12.2002, it does not deprive the said document of its characteristic of a complaint.
30) The chargesheet has been presented before the court on 22.03.2003 and Ld. Predecessor Judge has specifically mentioned that cognizance for offence under Section 186 IPC along with other sections taken. The cognizance for offence under Section 186 IPC has been taken on the basis of the said complaint. While taking cognizance, there must be application of judicial mind to the material presented before the court, oral and documentary as well as other information submitted and apprised of. The said complaint being filed along with the chargesheet, judicial mind has been applied to the offence stated in the complaint, hence, cognizance of the offence under Section 186, IPC has been taken on the basis of complaint filed under Section 195(1) of Cr.P.C.
31) In the present case, the person who had given the complaint under section195 CrPC, Mr D.K Singh, has not been examined. It has been argued that the accused cannot be convicted for the offence under section 186 IPC for the reason that the sanctioning authority who had given the complaint under Section 195 CrPC has not been examined.
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32) At this juncture, it would be apposite to refer to the case titled as State, CBI Hyderabad Vs. Edwin Devasahyam AIR 2007 SC 2507. This was a case against a public servant under The Prevention of Corruption Act, 1988 where the sanctioning authority was not examined by the prosecution during the course of the trial. The conviction was, inter alia, challenged on the ground that the sanctioning authority had not stepped into the witness box to prove the sanction. The Apex Court held that the nonexamination of the sanctioning authority was not fatal to the prosecution when the sanction order has been placed on record and the same contained the details showing application of mind by the concerned authority.
33) In this context, it is also useful to refer to the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Jiyalal 2009 (4) RCR Criminal 137 where it has been observed that "It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bond fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution."
34) Therefore, in view of the aforesaid enunciation of law, I hold that the non State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.15of 22 examination of the sanctioning authority who had given the complaint under section 195 CrPC was not at all fatal to the case of the prosecution.
35) Coming to the next contention, complainant has not been medically examined so the prosecution could not prove sustainment of injury by the complainant. Undoubtedly, the complainant/PW1 has admitted in his cross examination that neither he got himself medically examined nor the police got him medically examined. In the present case, there was no need for medical examination of the complainant as the complainant has himself stated in his statement to the police Ex. PW1/A that he had not received any visible injury. The definition of ´hurt´ contemplates causing of pain by a person to another. The causing of pain being sufficient to constitute hurt, it is not necessary that there should be visible injury caused on the person of the victim. In the absence of visible injury, there was not mandatory requirement of medical examination of the complainant.
36) Both PW1 and PW2 have unambiguously deposed, in their examination in chief, that both accused had dragged the complainant from the bus and had given beatings to the complainant. In their cross examination, no specific suggestion or question has been put to these witnesses that the accused persons had not beaten the complainant. Just a vague suggestion has been put forth that no such incident took place which has been denied by both PW1 and PW2. Medical opinion is corroborative evidence and just has a supportive value. Primacy has to be given to the ocular version. It would not be proper to reject the testimony of an injured and State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.16of 22 eye witness, otherwise reliable, merely due to absence of medical expert's evidence.
37) Another point which has been seriously harped is the nonjoining of the public witnesses in the investigation despite availability. It is not sacrosanct that public witnesses have to be joined in each and every case. In Jawahar Vs State (Delhi) 2007 (4) RCR (Criminal) 336 it has been observed that (1) it is very hard these days to get association of public witnesses in criminal investigation and (2) normally, no body from the public is prepared to suffer any inconvenience for the sake of society. Nonjoining of public witnesses does not ipso facto mean that the entire prosecution version has to be dumped. This omission does not dilute the direct account given by PW1 which has been duly supported by PW2.
38) Regarding the testimony of PW1 and PW2, it would be suffice to say that the contradictions which have been pointed out by Ld. Defence counsel are too trivial and do not cast any shadow of doubt upon the prosecution story. Ld. Defence counsel has argued that the prosecution witnesses could not tell the correct registration number of the Indica Car which the accused persons had allegedly parked in front of the DTC bus and had obstructed the complainant in discharge of his public duties. It is apparent that the complainant/PW1 and PW5 Ct. Pritam Singh could not tell the correct registration number of Indica Car. Even the eye witness/PW2 has disclosed the correct registration number of Indica Car in his cross examination by the Ld. APP for State. It cannot be lost sight of that the human memory is apt to blur with passage of time. The incident had taken place on State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.17of 22 2.9.2002. The examination in chief of PW1, PW2 and PW3 was conducted on 16.11.2004.The cross examination of PW1 and PW2 has been conducted on 5.11.2011 and PW3 was cross examined on 9.6.2011 i.e. after a gap of nine years from the date of incident. A witness cannot be expected to possess photographic memory. By and large a witness cannot be expected to recall the entire details of an incident with utmost accuracy.
39) It has also been argued that PW1 and PW2 have stated in their examination in chief that PW1 had been beaten by three boys however, PW2 in his cross examination has made a material improvement by deposing that four boys had given beatings to PW1. It has also been pointed out that PW2 has made a contradictory statement regarding the arrival of PW1 at the spot. PW1 stated that he came to the spot from Karkardooma Court by a TSR whereas PW2 stated that PW1 came to the spot alongwith PCR van. It is not every variation in the evidence which can be taken as indicative of a conjured up case. Though consistency is desirable, absolute consistency is not possible. As has been already discussed herein above that a witness cannot have a photographic memory. A person who is coming to the court for the first time and is subjected to rigours of cross examination is bound to get nervous, confused and will make certain mistakes. Further error do occur due to lapse of memory, more so, when cross examination is recorded after seven years of examination in chief of a witness.
40) The variations in the testimony of PW1 and PW2 regarding the mode of State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.18of 22 transport used by PW1 for arrival at the spot are with respect to the facts which had taken place subsequently to the incident and cannot erode the substantive deposition of the said witnesses regarding the incident of obstructing the DTC bus driver in discharge of his public duties and dragging him out from the bus and beating him. The said witnesses were forth right and confident in their identification of both the accused.
41) Ld. Defence counsel has submitted that both PW1 and PW2 have admitted in their cross examination that their statements were recorded at PS, no investigation has been conducted at the spot. Accordingly, both accused deserve to be acquitted. It is not the case of the defence that PW1 and PW2 had not made any statement in the present case. The dispute is whether the statements were recorded at the spot or at PS. Even if it is presumed that the statement of prosecution witnesses had been recorded by the IO at PS and not at the spot. It is the IO who has failed in his duty, the same is not a fault which can be ascribed to PW1. This defect in no way affects the credibility of PW1 and PW2 who have deposed regarding the incident in a consistent manner.
42) The last leg of the defence rested on the assertion of both accused in their statement U/s 313 Cr.P.C. that they have been falsely implicated in the present case in collusion with the complainant. It has been contented that the bus of complainant had hit a motorcycle, public persons had gathered at the spot and due to the fear of being beaten by the public persons, complainant fled from the spot. The Indica Car State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.19of 22 of the accused persons was parked at the spot and the complainant falsely implicated them. The place of incident in the present case is Ramprastha Red Light. Admittedly, on the day of incident an accident took place at Surya Nagar red light. Even if it is presumed that the accident took place due to negligence of complainant, public persons would have gathered at Surya Nagar red light and would not have chased the driver till Ramprastha red light. The proper course should have been that the matter be investigated by the police and there is no justification for chasing the DTC Bus driver till Ramprastha red light and thereafter beating him. There is no reasons why the complainant would falsely implicate the accused persons had they been mere spectators at the spot. There has been no previous rivalry/enmity between the complainant and the accused persons. Injured witness is expected to tell the truth against perpetrator of crime against him and not to falsely implicate an innocent. The complainant would be the last person to substitute the accused who had caused injuries to him. It is unlikely that an injured would spare real assailant and implicate an innocent person, unless there are cogent convincing grounds and in absence of any material infirmity to discard his evidence, his testimony cannot be repelled. Reliance is placed upon the judgment titled as Mer Dhana Sida Vs State of Gujarat AIR 1985 SC 386.
43) In the facts and circumstances of the present case, as adumbrated hereinabove, coupled with credible and trustworthy statement of PW1 duly corroborated by PW2, the prosecution has established beyond reasonable doubt that both accused had obstructed the complainant and had used criminal force against the complainant and State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.20of 22 caused simple hurt to the complainant. Accordingly, both accused are convicted for offence punishable under Section 186/332/353/34 IPC.
44) The accused persons have also been charged of the offence punishable under Section 365 IPC. Section 365 IPC embodies an aggravated form of abduction as defined in Section 362 IPC. Section 365 IPC is attracted when the abduction is committed with intent to secretly and wrongfully confine the victim.
45) PW1 has testified that the three boys had pulled him from the bus and gave beatings to him. The boys have forcibly put him in the Indica car and brought him to Karkardooma Courts where they demanded Rs.20,000/. When PW1 stated that he cannot give Rs.20,000/, they instructed him to bring Rs.20,000/. The ingredient of the Section is that a person must be abducted with the intent to cause that person to be secretly and wrongfully confined. On these facts, ábduction´ as defined in Section 362 IPC has been proved. It is no doubt true that abduction as such is not punishable unless it is done with certain intent punishable under Section 364, 364A, 365 or 366 IPC. The intention of the abductors has to be adjudged from the facts and circumstances of the case including what the abductors did at the time of abduction and immediately thereafter. PW1 has not been taken to any lonely place and has not been confined at that place for some days or even for some hours. When PW1 showed his inability to make the payment of Rs.20,000/, the accused persons released him and asked him to arrange the said amount. This shows that at no point of time, accused persons had the intention to secretly and wrongfully State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.21of 22 confine PW1. As the complainant has not been secretly and wrongfully confined, the conduct of accused persons does not fall within the mischief of Section 365 IPC.
46) In the result :
(1)Both accused are convicted for offence punishable under Section 186/332/353/34 IPC.
(2)Both accused are acquitted for offence punishable under Section 365 IPC. Be heard separately on the point of sentence.
ANNOUNCED IN THE OPEN COURT (SHUCHI LALER)
TODAY ITSELF i.e. 21.12.2012 MM/EAST/KKD/DELHI
State Vs. Bijender & Ors. FIR No. 272/2002; U/s: 186/332/353/365/34 IPC Page No.22of 22