Delhi District Court
Sc No. 85/11 State vs Subodh Page No. 1 Of 21 on 15 January, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
ID Case No. 02403R0166662010
SESSIONS CASE NO. 85/11
FIR NO. 29/10
POLICE STATION GOVIND PURI
UNDER SECTION : 363/376/186/332/353 IPC
STATE
VERSUS
1. SUBODH
S/O SH. GUJJU,
R/O RAJU GURJAR HOUSE,
KUA MOHALLA, TUGLAKABAD VILLAGE,
DELHI.
DATE OF INSTITUTION : 01.05.2010
DATE OF RESERVING ORDER : 08.11.2012
DATE OF DECISION : 15.01.2013
J U D G M E N T
Case of Prosecution:
1. On 02.02.2010 complainant Smt. Ruby came to police station Govindpuri and lodged a complaint against the accused Subodh regarding rape committed upon her daughter namely 'X' (name withheld to keep her identity confidential). Statement of complainant recorded at the police station and the SC No. 85/11 State Vs Subodh Page No. 1 of 21 prosecutrix was medically examined at AIIMS Hospital. Accused was arrested and his disclosure statement was recorded. While apprehending the accused he had hit HC Jagat Singh PW7 by means of an iron rod due to which he suffered simple injuries. Medical examination of accused was also conducted at AIIMS Hospital. Exhibits were sent to FSL, Rohini for examination. Statement of witnesses were recorded by the Investigating officer. The complaint under section 195 Cr.P.C was given by the then SHO for prosecution of the accused for the offence under section 186/332/353 IPC. After completion of investigation, charge sheet under Section 376/363/353/332/186 of IPC was filed against the accused in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused:
3. Prima facie case under section 363/376/186/332/353 of IPC was made out against accused. Charge under Section 363/376/186/332/353 of IPC was framed upon the accused by my Ld. Predecessor on 07.08.2010 to which accused pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined fourteen (14) witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW3 is Ms. Shabnam, neighbour of complainant. She deposed that she had seen accused going in the gali with prosecutrix. She had often SC No. 85/11 State Vs Subodh Page No. 2 of 21 seen the accused with the mother of the prosecutrix. She had informed the parents about the prosecutrix while they were searching her, that she had seen the prosecutrix being taken by accused.
6. PW4 is Smt. Ruby, complainant of the case. She deposed that she is having four children i.e. two sons and two daughters. About 1 ½ years back, she used to reside at the house of Tula Ram, Balmiki Mohalla, Village Tughlakabad. At about 8 pm, she left her daughter/prosecutrix at her house for getting the change of Rs. 500/ to the nearby shop. On returning back, she did not find her daughter. She made search of her daughter/prosecutrix but could not found her. One of the neighbour namely Ms. Shabnam told her that she had seen accused Subodh with prosecutrix going towards the jungle. Her husband traced accused Subodh and recovered prosecutrix from his possession. PW4 then informed the police. Police came to her house and returned as they told them that their daughter had been recovered. The next morning prosecutrix did not eat anything and was in a frighten state of mind. PW4 checked her daughter/prosecutrix body and found some injury marks. She discussed about the fact with her landlord Sh. Tula Ram and on his advice she along with her husband took prosecutrix to AIIMS hospital where officials of hospital advised them to lodge a report with the police. She went to police station and lodged a report in this regard. Medical examination of prosecutrix was conducted at AIIMS Hospital. She gave certificate of date of birth of prosecutrix to the Investigating officer wherein prosecutrix date of birth has been mentioned as 05.12.2007.
7. PW 5 is Sh. Kaushal, father of the prosecutrix. He deposed that on 01.02.2010 at about 8 pm he was present at his shop. His wife came there SC No. 85/11 State Vs Subodh Page No. 3 of 21 and told that their daughter/prosecutrix is missing from their house. While searching their daughter one neighbour namely Ms. Shabnam told them that she had seen accused Subodh taking their daughter. He along with his wife searched for accused but could not found her. When they reached near Shamshan Ghat, Tughlakabad Forest, they saw accused coming with his daughter with knife in his hand. Accused threatened PW5 by showing him the knife. Thereafter, PW5 brought his daughter to his house. In the morning, his wife told him that prosecutrix is having injury marks on her private parts.
They took her to a private hospital where hospital officials told them to take her to government hospital and police station. He then reported the matter to police station. His daughter was medically examined at AIIMS Hospital and his statement was also recorded by the police.
8. PW8 is Head constable Jagat singh who along with Investigating officer and Ct. Jeet Singh had apprehended accused Subodh from his house at Tuglakabad . He has deposed that at the time of apprehending the accused, the accused gave him a iron rod blow on his right eyebrow due to which he sustained injuries. He proved on record all the memos in this regard.
9. PW9 is Constable Jeet singh who joined the investigation of the case along with the investigating officer and PW8 HC Jagat Singh and also deposed on the lines of PW8 that the accused had given a iron rod blow at the forehead/eyebrow of HC Jagat singh which was later on seized by the Investigating officer. They apprehended the accused, got him medically examined and proved all the memos in this regard.
10. PW10 is SI Ashok Giri, Investigating officer of the case who on receiving DD No. 20 A went to AIIMS hospital along with Lady Constable SC No. 85/11 State Vs Subodh Page No. 4 of 21 Saroj, complainant Smt. Ruby and her husband, took the prosecutrix for her medical examination at AIIMS Hospital, got her medically examined, recorded the statement of complainant, prepared rukka and other documents. He along with HC Jagat singh and Ct. Jeet Singh went to Tuglakabad village and apprehended the accused. He deposed on the lines of PW8 and PW9 that in the process of apprehending the accused , the accused became violent, made efforts to evade his arrest and while HC Jagat singh was trying to physically apprehend him, he gave a iron rod blow on his eyebrow in which he sustained injury. He proved the arrest memo and other memos, took the accused to the hospital, got him medically examined, recovered a pant which accused was wearing at the time of incident, seized clothes of the prosecutrix and date of birth certificate of prosecutrix, sent the exhibits to FSL, obtained the complaint under section 195 Cr.P.C., seized the iron rod and after completing the investigation filed the challan in the court.
Formal Witnesses:
11. PW1 is Constable Saroj who got conducted the medical examination of the prosecutrix at AIIMS Hospital and proved the memos Ex.PW1/A in this regard.
12. PW6 is Constable Pradeep who deposed that on the instructions of Investigating officer he collected the exhibits and deposited the same at FSL, Rohini, Delhi.
13. PW7 is Sh. Pawan Kumar, SubRegistrar from NDMC, Mandir Marg who brought the original birth register and has duly proved on record the original birth certificate .
14. PW11 is Constable Sandeep Singh who on the instructions of SC No. 85/11 State Vs Subodh Page No. 5 of 21 investigating officer took accused Subodh to AIIMS Hospital and got conducted his medical examination and proved the memo etc.
15. PW14 is Inspector Veer Singh, who was the then SHO at police station Govindpuri. He proved his complaint under section 195 Cr.P.C Ex.PW14/A with regard to the offences against HC Jagat Singh under section 186/332/353 of IPC.
Medical witnesses:
16. PW2 is Dr. Asit Kumar Sikary who conducted the medical examination of accused Subodh and duly proved on record MLC Ex.PW2/A.
17. PW12 is Dr. Shruti who proved on record Ex.PW12/A i.e. MLC of prosecutrix prepared by Dr. Mukta Aggarwal.
18. PW13 is Dr. Suman Karmakar who proved on record MLC of injured Jagat singh prepared by Dr. Naushad.
Statement & Defence of accused:
19. Statement of accused under Section 313 Cr.P.C was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. Accused further chose not to lead evidence in his defence.
20. I have heard Ld. Amicus curiae for accused as well as Ld. APP for state and have carefully perused the record.
Arguments of Ld. APP for state:
21. It is argued by the Ld. Additional Public Prosecutor for the state that in the present case the story of the prosecution consists in two parts. The first part consists of kidnapping and rape by the accused upon the prosecutrix of aged 2 years by the accused and second part consists of the injury caused by SC No. 85/11 State Vs Subodh Page No. 6 of 21 the accused upon HC Jagat Singh at the time of his apprehension by means of an iron rod. It is argued that for proving the offence of kidnapping and rape upon the child, the public witnesses PW3 Ms. Shabnam, PW4 Smt. Ruby, PW5 Sh. Kaushal as well as doctors are examined by the prosecution. Since, the prosecutrix is only aged 2 years and was not in a position to speak she was not made witness in this case. It is stated that PW3 Shabnam had admitted that she had informed the mother of the prosecutrix that she had seen the accused going in gali with prosecutrix aged about 2 years and her statement was recorded by the police. Further, PW5 Sh. Kaushal has recovered the child from the lap of the accused. It is stated that the chain of circumstantial evidence leads to proving the case against the accused. It is also stated that MLC of the child corroborated the factum of rape and the identity of the accused is duly proved by the prosecution who had proved the factum of causing injuries on his person by means of rod by the accused and his MLC is proved. Hence, it is argued that prosecution has proved both the parts of the offence against the accused and as such he be convicted. It is also argued that DNA profile in this case did not match as the child has changed the clothes and further the profiles could not be lifted.
Arguments of Ld. Amicus Curiae for accused:
22. On the other hand, Ld. Defence counsel for accused argued that in this case the prosecutrix is not examined. Further, the mother of prosecutrix has changed her clothes. DNA profile has not matched. There is omission in mentioning the name of the informant to the mother/complainant of the child in FIR as name of PW4 Shabnam is not mentioned and only it is mentioned that one girl has informed that the prosecutrix was taken by the accused SC No. 85/11 State Vs Subodh Page No. 7 of 21 Subodh. It is also argued that no TIP of the accused has been conducted and the first time identification of the accused was made in the court. It is argued that in such circumstances, the accused is liable to be convicted. Conclusion:
23. Before appreciating the facts of this case, it is necessary to know the ingredients of the offence by resorting to the provisions of sec.375 read with sec.376 IPC. Section 375 Rape provides: " A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First Against her will.
Secondly Without her consent.
Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly With or without her consent, when she under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual SC No. 85/11 State Vs Subodh Page No. 8 of 21 intercourse necessary to the offence of rape.
Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
24. 376. Punishment for rape (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a terms which may extend to two years or with fine or with both; Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of less than seven years.
(2) Whoever,
(a) being a police officer commits rape
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed ; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand SC No. 85/11 State Vs Subodh Page No. 9 of 21 home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age ; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a terms of less than ten years.
Explanation1. Where a women is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.
Explanation2. "Women's or children's institution" means an institution , whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of women or children.
Explanation3. "Hospital" means the precincts of the hospital and SC No. 85/11 State Vs Subodh Page No. 10 of 21 includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.
25. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
26. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical SC No. 85/11 State Vs Subodh Page No. 11 of 21 body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."
27. Admittedly there is no eye witness of the present case and entire case rests upon the circumstantial evidence. The law relating to circumstantial evidence is very clear and has been laid down by the Hon'ble Apex Court in various judgments again and again.
28. It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that: " It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder Singh Vs. State of Punjab AIR 1987 SC 350 Ashok Kumar Chatterjee Vs. State of M.P. AIR 1989 SC 1890. The circumstances from which an inference as to the guilt of the accused is SC No. 85/11 State Vs Subodh Page No. 12 of 21 drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
29. In Padala Veera Reddy Vs. State of A.P. & Ors. AIR 1990 SC 79, it was laid down that: "When a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent SC No. 85/11 State Vs Subodh Page No. 13 of 21 with his innocence."
30. The present case of prosecution so far as the offence of rape is concerned is also based entirely on the circumstantial evidence as there is no eyewitness to the incident. The victim is a small child of 2 years. I have considered the rival submissions made at bar and have carefully gone through the evidence on record. The prosecution has claimed to have established its case by proving the following circumstances in evidence which form the chain of circumstantial evidence:
(i) Age of the prosecutrix.
(ii) Offence of kidnapping and rape, circumstantial evidence and other ingredients of the offence.
(iii) Medical evidence.
(iv) Defence of the accused.
31. In order to prove the guilt of the accused beyond reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the accused. It is further required to prove that the chain of circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the accused.
32. I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubt. SC No. 85/11 State Vs Subodh Page No. 14 of 21
(i) Age of the prosecutrix: In the present case as per the story of the prosecution, the prosecutrix is aged about 2 years. The girl of such a tender age was not in a position to speak and as such she was not made a witness in this case. So far as age of the child is concerned, the prosecution has examined PW7 Sh. Pawan Kumar from NDMC who had proved the birth certificate issued from the office of the registrar. Nothing adverse came out in the cross examination of this witness so as to doubt the veracity of the document i.e. the birth certificate which is duly proved by this witness. Even, PW4 Smt. Ruby & PW5 Sh. Kaushal i.e. parents of the deceased have deposed that the prosecutrix is aged 2 years. The accused has not challenged the age of the prosecutrix by leading any evidence in rebuttal. Accordingly, it is proved beyond doubt that the prosecutrix is aged 2 years.
(ii) Offence of kidnapping and rape, circumstantial evidence and other ingredients of the offence: To prove the case, PW3 Ms. Shabnam is the first witness who had seen the accused taking the prosecutrix aged about 2 years in the gali. This witness has deposed that she knows the mother of the prosecutrix i.e. Ruby as she is residing in the same gali. She has desposed that she had seen Ruby, mother of the prosecutrix with accused many times. She has also deposed that she had informed the parents of the prosecutrix who came there searching for the prosecutrix, that she had seen the accused going with the prosecutrix. The testimony of this witness was not shattered during the cross examination of this witness. Ld. Counsel for the accused has argued that since the name of this girl was not mentioned in the FIR and was firstly recorded in the court, her testimony is not reliable. I have seen the testimony of PW3 which is corroborated by the testimonies of PW4 Ms. Ruby and PW5 SC No. 85/11 State Vs Subodh Page No. 15 of 21 Sh. Kaushal i.e. parents of the prosecutrix. There is nothing to disbelieve the statement of of PW3 Ms. Shabnam. The omission to mention the name of PW3 in the FIR is no ground to disbelieve the statement of PW3 when the same is otherwise corroborated by the statements of other public witnesses PW4 and PW5. Even in the complaint/FIR it is mentioned that one girl disclosed to the parents of the prosecutrix that the prosecutrix was lastly seen in the company of the accused. Mere omission to give the name of that girl in the FIR is not fatal so as to shatter the statement of PW3 which is otherwise reliable, convincing and cogent.
The other witness in the line is PW5 Sh. Kaushal who had recovered his daughter from the accused at about 12 pm on 01.02.2012. The case of the prosecution is that the prosecutrix was found missing at about 8 pm by the mother of the prosecutrix i.e. PW4 Smt. Ruby and thereafter she informed the father of the prosecutrix PW5 Sh. Kaushal and both of them have tried to locate her when PW3 had met them who had disclosed that the accused was taking the prosecutrix with him. Both the parents of the prosecutrix tried to search for the accused and finally father of the prosecutrix PW5, at about 12 pm in the night, had seen the accused coming with his daughter. At that time he was having knife in his hand. PW5 Sh. Kaushsal have deposed that he made a request to the accused to hand over his daughter. The accused threatened him by showing the knife. Thereafter, PW5 had taken his duaghter i.e. prosecutrix and proceeded towards his house on the motorcycle. The witness PW5 has identified the accused as he was already known to him. Both PW4 and PW5 have deposed that the condition of the child/prosecutrix was not good and she did not eat food and was in a frightened SC No. 85/11 State Vs Subodh Page No. 16 of 21 state of mind. On the next morning PW4 Smt. Ruby, mother of the prosecutrix after noticing injury marks on the body and private parts of the child got the child medically examined to know about the factum of rape. The testimony of both PW4 and PW5 completes the chain of circumstantial evidence. The prosecutrix was firstly seen going in the company of the accused towards jungle at about 8 pm in the night and thereafter she was recovered from the possession of the accused at 12 midnight in a frightened state of mind. She even did not take meals. The short time gap of four hours during which the prosecutrix went missing and when she was recovered, the recovery of the child by her father from the possession of the accused, the frightened state of mind of the child when she was recovered from the possession of the accused, the evidence that the prosecutrix was taken by the accused at 8 pm which was the time when prosecutrix went missing, the conduct of the accused in threatening the father of the prosecutrix by means of knife when the child was recovered from him, the presence of injury marks and bruises on the body and private parts of the child which were seen by the mother of the prosecutrix in the next day morning, the medical reports of the child complete the chain of circumstantial evidence and lead to the conclusion that in all probability it was the accused only and nobody else, who committed the offence of rape and kidnapping of the prosecutrix from the lawful guardianship of her parents.
The arguments of Ld. counsel for the accused that no TIP is conducted in this case or that the accused firstly identified by the witnesses in the court has no substance as the accused was earlier known to the complainant and her husband as he was residing in the neighbourhood. As such , there was no requirement of conducting of TIP as the FIR is by name. The DNA profiles SC No. 85/11 State Vs Subodh Page No. 17 of 21 did not match is also no ground to reject the other evidence which prove the case beyond doubt. In this case, DNA profile could not be lifted which may be for several reasons. In this case the victim has also changed the clothes. However, the other circumstantial evidence and medical evidence points to the accused that in all probability, it is he who committed the offence.
(iii) Medical evidence: The prosecution has examined PW12 Dr. Shruti who proved the MLC of the prosecutrix prepared by Dr. Mukta Aggarwal Ex.PW12/A as Dr. Mukta Aggarwal had left the hospital. Dr. Mukta Aggarwal had given the report on the MLC "Hymen ruptured and she also found second degree perenial tear in midline." The victim was also having superficial abraisal over back lower abdomen both lower limbs . The prosecution has also examined PW2 Dr. Asit Kumar Sikary who had proved the MLC of the accused and had opined that there is nothing to suggest that the person examined is incapable of performing sexual intercourse under normal circumstances. Both the doctors have duly proved the MLC's and the medical evidence produced by the prosecution proves that the prosecutrix was raped. The circumstantial evidence leads to the conclusion that it was the accused and nobody else who had raped the prosecutrix.
(iv) Defence of the accused: Though in the statement under section 313 Cr.P.C the accused had only taken the defence that he has been falsely implicated but he had put suggestions to the parents of the prosecutrix i.e. PW4 and PW5 that PW5 i.e. father of the prosecutrix has taken a loan of Rs. 7,000/ from him for which he has been falsely implicated. Both PW4 and PW5 have denied the suggestion of the accused that PW5 had taken a loan of Rs. 7,000/ from the accused for SC No. 85/11 State Vs Subodh Page No. 18 of 21 running a shop and had falsely implicated him. No evidence is led by the accused to prove his defence.
33. Offence of obstructing public servant in discharge of public functions, voluntarily causing hurt to deter public servant from his duty , assault or use of criminal force to deter the public servant from discharge of his duty: As per the case of the prosecution, HC Jagat Singh, Ct. Jeet singh along with the Investigating officer had apprehended the accused on 03.02.2010 from his house at Tuglakabad. At the time of apprehension the accused had hit HC Jagat Singh with an iron rod.
Before proving the guilt of the accused under this head it is necessary to know the requirement of law under section 186, 332 and 353 of IPC r.w. Section 195 Cr.P.C.
The necessary ingredients to prove the offence under section 186 of IPC are :
1. a person voluntarily obstructs any public servant.
2. The public servant is acting in discharge of his public functions.
3. The obstruction is done voluntarily.
To prove the offence under section 332 IPC, it is necessary for prosecution to prove :
1. Causing hurt by a person to a public servant.
2. The hurt is caused with intent to prevent or deter that public servant from discharging his duties as such public servant or in consequence of anything done or attempted to be done in SC No. 85/11 State Vs Subodh Page No. 19 of 21 lawful discharge of his duties as such public servant.
3. The hurt must be caused voluntarily.
Similarly, to prove the offence under section 353 of IPC, it is necessary to prove:
1. Assault or use of criminal force to a public servant.
2. The same must be with intent to prevent or deter him from discharging his duties as such public servant or in consequence of anything done or attempted to be done in lawful discharge of his duties as such public servant. For taking the cognizance of an offence under section 186 Cr.P.C , the law requires a complaint in writing under section 195 Cr.P.C. of the public servant concerned or of some other public servant to whom he is administratively subordinate.
In this case, the then SHO PW14 Inspector Veer singh had duly proved the complaint under section 195 Cr.P.C . PW8 HC Jagat singh, injured, who was hit by the accused by iron rod had categorically deposed against the accused . His statement was duly corroborated by PW9 Ct. Jeet singh and the Investigating officer who were also present at the time of incident when the accused had hit PW8 on his forehead by means of an iron rod. Nothing adverse came out in the cross examination of these witnesses . The MLC of PW8 is duly proved by concerned doctor PW13 Dr. Suman Karmakar wherein the injuries are opined as simple blunt on the right forehead above eyebrow. From the statement of these witnesses , it is duly proved by the prosecution that while PW8 HC Jagat singh was performing his duty and was in the process of apprehending the accused, the accused had tried to evade his arrest and had SC No. 85/11 State Vs Subodh Page No. 20 of 21 obstructed him from performing his duties in lawful discharge and has also assaulted him with an intent to prevent or deter him from discharging his duties and has caused injuries to him. Hence, the prosecution has duly proved all the offence under section 186/332/353 of IPC against the accused.
34. In view of above discussion, the prosecution has proved beyond reasonable doubt that the accused had kidnapped the prosecutrix aged 2 years from the lawful guardianship of her parents and had committed rape upon the prosecutrix. It is also proved that he had obstructed HC Jagat Singh in discharge of his duties and had voluntarily caused hurt to him. Accordingly, accused is convicted under section 363/376(2)(f)/186/332/353 of IPC. ANNOUNCED IN THE OPEN COURT ON 15.01.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE 01/NEW DELHI/ 15.01.2013 SC No. 85/11 State Vs Subodh Page No. 21 of 21