Delhi District Court
State vs Kishan on 5 February, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-08
(CENTRAL), TIS HAZARI COURTS : DELHI
Presiding Officer : Ms. Meena Chauhan, DJS
FIR No. 351/2014
PS : Kotwali
U/s 186/353/332 Indian Penal Code
State vs. Kishan
CIS No. 3132/2017
Date of Institution of case: 16.03.2017
Date when Judgment reserved: 10.01.2024
Date on which Judgment pronounced: 05.02.2024
JUDGMENT
a Serial No. of the case : FIR No. 351/2014, PS : Kotwali Date of the commission b : 03.05.2014 of the offence Name of the c : Ct. Sumit Kumar, Belt no. 1857/T Complainant Kishan s/o Sh. Bhamma, r/o Jhuggi No. E-80/403, Jhilmil Colony, Rajeev Camp, Krishna Name of Accused, his d : Market, PS Vivek Vihar, Delhi parentage & residence and Permanent Add : 17/1, Rajbagh Colony, Sahibabad, PS Mohan Nagar, Ghaziabad, UP.
U/s 186/353/332 Indian Penal e Offence complained of :
Code Plea of the Accused and f : Pleaded not guilty.
his examination (if any) g Final Order : Acquitted of all charges h Date of Order : 05.02.2024 State Vs. Kishan FIR No. 351/2014 PS Kotwali 1/32
"ei incumbit probatio qui dicit, non qui negat"
BRIEF FACTS OF THE CASE:
1. Pithily put, the case of prosecution in brief is that on 03.05.2014 at about 2.45 pm, at Old Iron Yamuna Bridge, Police Booth, Delhi, accused had voluntarily obstructed and manhandled the complainant / traffic Ct. Sumit Kumar and assaulted or used criminal force to the complainant with intent to prevent or debar him from discharging his duties as public servant and caused hurt the complainant with intent to prevent or debtor him from discharging his duties as public servant. On these allegations, the present FIR is registered against the accused for committing an offence punishable U/s 186/353/332 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 16.03.2017 against the accused. Cognizance of offence punishable u/s U/s 186/353/332 IPC was taken. Upon summoning, the accused appeared and a copy of charge sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, charge for offence punishable u/s U/s 186/353/332 IPC was framed against the accused on 21.01.2019 to which he pleaded not guilty and opted for trial.
State Vs. Kishan FIR No. 351/2014 PS Kotwali 2/32 DEPOSITION OF PROSECUTION'S WITNESSES:
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 08(Eight) witnesses in support of its case:
4. PW-1 Ct. Sumit Lochab has deposed in his examination-in-chief that on 03.05.2014, he was on duty along with ZO/ASI Jagpal Singh and Ct. Neeraj Kumar at Police Booth, near Old Iron Bridge, Yamuna River. Their duty was from 08 am to 10 pm. At about 02:45 pm, when they were checking the vehicles, they saw one D-van bearing no. DL1LL 3753 coming from Seelampur side. On the instructions of ZO, he gave signal to stop the same. The driver of D-van stopped the vehicle just in front of him. When he asked him to show the documents of the vehicle, he did not produce the same and started saying "ABHI TUMHE NAUKARI KARNA SIKHATA HOON". He get down from the vehicle and started manhandling (Hathapai) with him. Accused started pulling his uniform due to which the left side pocket of his worn uniform got torn. ZO and one passersby namely Ahmed Majid anyhow managed to control the accused. Accused disclosed his name as Kishan. He has correctly identified the accused. He called at 100 number. IO came at the spot to whom they handed over accused along with his D-van. IO recorded his statement Ex.PW-1/A. IO prepared rukka on State Vs. Kishan FIR No. 351/2014 PS Kotwali 3/32 his statement and got the FIR registered through Ct. Sunil. IO prepared site plan at his instance. IO arrested accused vide arrest memo Ex. PW1/B and his personal search was conducted vide memo Ex PW1/C. IO seized his torn uniform (shirt) after sealing the same in a while cloth pullanda with the seal of RK, vide seizure memo Ex. PW1/D. IO also seized the D-van bearing no. DL1L-L 3753 vide seizure memo Ex. PW1/E. MHC(M) produced one pullanda duly sealed with the seal of "RK". The same was opened with the permission of the court. On opening, it is found containing one shirt of white coloured having name plate of Sumit Lochab. The same was correctly identified by the witness as a shirt which was worn by him on the date of incident and was torn by accused. The shirt exhibited as Ex. P-1.
During cross-examination of the witness by Ld. Counsel for the accused, PW-1 stated that he reached on duty at about 08 am. They were checking the vehicle prior to the arrival of the accused. Accused had stopped the vehicle just near him. The distance might be 5/10 meters. Accused said that "Dikhau tujhe document, waise hi garmi ho rahi hai, abhi teri garmi utarta hoon". He gave a signal to stop the vehicle, he was on the left side of the road. Accused came out from the vehicle from the right side of the vehicle. IO had not recorded a statement of a public witness in his presence, however IO had inquired from the public person in his presence. One passerby namely State Vs. Kishan FIR No. 351/2014 PS Kotwali 4/32 Ahmed Majid and ZO got him released from the clutches of the accused. Accused had caught hold of his collar, torn his pocket and he had attacked with his nails on his neck due to which he had sustained injuries in his neck. Accused had pulled his collar towards him. No button of his shirt was broken, however, the left pocket of his shirt was torn by the accused. Firstly, the accused caught hold of his collar and thereafter, he pulled his pocket. IO came to the spot within 15/20 minutes after making a call at 100. He had called on 100 numbers from his mobile phone. IO had come to the spot on a bike. He does not remember the registration number of the bike of the IO. Accused had not tried to escape from the spot, however he tried to get himself free from the clutches of ZO and public person Ahmad Majid when he was apprehended by them. He was medically examined on that day, however, he does not remember the name of the hospital. He was taken to the hospital at about 04/05 pm by government vehicle by a constable whose name he does not remember. He does not remember the exact time when the accused was arrested by the IO. Accused was arrested after his medical examination. Firstly, his statement was recorded. He does not remember today whether the seizure memo was prepared prior to the arrest memo and personal search memo or not. It took almost two hours to complete the proceeding at the spot by the IO. Ahmed Majid was present at the spot when the arrest memo, seizure memo State Vs. Kishan FIR No. 351/2014 PS Kotwali 5/32 and personal search memo of the accused was prepared. He does not remember whether signatures of a public witness namely Ahmed Majid were obtained by the IO on those documents or not. IO had not asked the public witness Ahmed Majid to sign any documents in his presence. Accused had not used filthy language (Gali Galoch) against him. He remained in hospital for about 15/20 minutes. His shirt was seized by the IO at the spot. He did not know that the accused was physically challenged at the time of incident. He denied the suggestion that the accused had never attacked him. He denied the suggestion that the accused had not torn the pocket of his shirt. He denied the suggestion that the accused has been falsely implicated in the present case as he did not pay the bribe demanded by ZO. He denied the suggestion that he was deposing falsely at the instance of ZO. He denied the suggestion that he was deposing falsely.
5. PW-2 SI Jagpal Singh has deposed in his examination-in-chief that on 03.05.2014, he was posted as ASI/ZO in Traffic Unit of Delhi Police in Kotwali Circle. On that day, he was on duty alongwith Ct. Sumit and Ct. Neeraj Kumar at Police Booth, near Old Iron Bridge, Yamuna River. On that day, their duty was from 08 am to 10 pm. At about 02:45 pm, when they were checking the vehicles, they saw one D-van bearing no. DL1LL 3753 coming from Seelampur side. On his instructions, Ct. Sumit gave signal to stop the same. The driver of D-van State Vs. Kishan FIR No. 351/2014 PS Kotwali 6/32 stopped the vehicle just in front of Ct. Sumit. When he asked him to show the documents of the vehicle, he did not produce the same and started saying "ABHI TUMHE NAUKARI KARNA SIKHATA HOON". He get down from the vehicle and started manhandling (Hathapai) with Ct. Sumit. He started pulling his uniform due to which the left side pocket of his worn uniform got torn. He and one passersby namely Ahmed Majid anyhow managed to control accused. Accused disclosed his name as Kishan. He has correctly identified accused. Ct. Sumit called at no.
100. IO/HC Ram Kishan came at the spot to whom they handed over accused along with his D-van. IO recorded statement of Ct. Sumit IO prepared rukka on his statement and got the FIR registered through Ct. Sunil. He alongwith Ct. Neeraj left the spot as they were checking the vehicles near the spot. Later on, his statement was recorded by the second IO/ASI Ramesh.
During cross-examination of the witness by Ld. Counsel for the accused, PW-2 stated that he reached on duty at about 08 am. They were checking the vehicle prior to the arrival of the accused. Accused had stopped the vehicle just near Ct. Sumit. When Ct. Sumit gave a signal to stop the vehicle, he was on the left side of the road. Accused came out from the vehicle from the right side of the vehicle. He does not remember as to whether statements of public witnesses were recorded by the IO in his presence or otherwise. IO came to the spot within State Vs. Kishan FIR No. 351/2014 PS Kotwali 7/32 15/20 minutes after making a call at 100. Ct. Sumit had called on 100 numbers from his mobile phone. IO had come to the spot on a bike. He does not remember the registration number of the bike of the IO. After recording the statement of Ct. Sumit, he left the spot for checking the vehicles near the spot. He denied the suggestion that the accused had never attacked Ct. Sumit. He denied the suggestion that the accused had not torn the pocket of the shirt of Ct. Sumit. He denied the suggestion that the accused has been falsely implicated in the present case as he did not pay the bribe amount to him. He denied the suggestion that he was deposing falsely at the instance of IO. He denied the suggestion that he was deposing falsely.
6. PW-3 Ct. Neeraj Kumar has deposed in his examination-in-chief that on 03.05.2014, he was posted as Constable in the Traffic Unit of Delhi Police in Kotwali Circle. He was on duty alongwith Ct. Sumit and ZO/ASI Jagpal Singh at Police Booth, near Old Iron Bridge, Yamuna River. On that day, their duty was from 08 am to 10 pm. At about 02:45 pm, when they were checking the vehicles, they saw one D-van bearing no. DL1LL 3753 coming from Seelampur side. On the instructions of ZO, Ct. Sumit gave a signal to stop the same. The driver of the D-van stopped the vehicle just in front of Ct. Sumit. When the accused asked him to show the documents of the vehicle, he did not produce the same and started saying, "ABHI TUMHE NAUKARI KARNA SIKHATA HOON".
State Vs. Kishan FIR No. 351/2014 PS Kotwali 8/32 Accused got down from the vehicle and started manhandling (Hathapai) with Ct. Sumit. Accused started pulling his uniform due to which the left side pocket of his worn uniform got torn. ZO and one passerby namely Ahmed Majid anyhow managed to control the accused. Accused disclosed his name as Kishan. He has correctly identified the accused. Ct. Sumit called at 100 numbers. IO/HC Ram Kishan came at the spot to whom they handed over the accused along with his D-van. IO recorded statement of Ct. Sumit IO prepared rukka on his statement and got the FIR registered through Ct. Sunil. He along with ZO left the spot as they were checking the vehicles near the spot. Later on, his statement was recorded by the second IO/ASI Ramesh.
During cross-examination of the witness by Ld. Counsel for the accused, PW-3 stated that he had not made any DD entry before assuming his duty. The Duty Officer of Kotwali Traffic Circle used to make entry on departure. Accused had stopped the vehicle just near Ct. Sumit. Accused came out from the vehicle from the right side of the vehicle. He does not remember as to whether statements of public witnesses were recorded by the IO in his presence or otherwise. He had not signed the arrest and personal search memo as he had left the spot for checking the vehicle along with ZO. IO came to the spot within 15/20 minutes after making a call at 100. Ct. Sumit had called on 100 numbers from his mobile phone. IO had State Vs. Kishan FIR No. 351/2014 PS Kotwali 9/32 come to the spot on a bike. He does not remember the registration number of the bike of the IO. After recording the statement of Ct. Sumit, he left the spot for checking the vehicles near the spot. The buttons of the uniform got broken during the scuffle. He admitted that the uniform was not seen in his presence. He denied the suggestion that the accused had never attacked Ct. Sumit. He denied the suggestion that the accused had not torn the pocket of the shirt of Ct. Sumit. He denied the suggestion that the accused has been falsely implicated in the present case as he did not pay the bribe amount to him. He denied the suggestion that he was deposing falsely at the instance of IO. He denied the suggestion that he was deposing falsely.
7. PW-4 ASI Ram Kishan has deposed in his examination-in-chief that on 03.05.2014, he was on emergency duty from 8:00 am to 8:00pm. On receiving DD no 28PP, he along with Constable Sunil went to the incident spot that is old Iron Bridge, behind Red fort. There they met constable Sumit who handed over the accused and D-van bearing registration no DL 1LL 3753 and informed them about the incident. He recorded the statement of constable Sumit Ex.PW1/A and prepared the Rukka Ex. PW4/A. The same was handed over to constable Sunil and went to PS for registration of FIR. ASI Ramesh Kumar came to the spot and he handed over the accused and D-van to the ASI Ramesh Kumar. In the meantime, Constable Sunil came to the spot and handed State Vs. Kishan FIR No. 351/2014 PS Kotwali 10/32 over the copy of FIR and original tehrir and Rukka to the IO Ramesh Kumar. IO arrested accused vide arrest memo Ex PW1/B and also conducted his personal search vide memo Ex.PW1/C. IO seized the D-van bearing registration no DL-1LL-3753 vide memo Ex. PW 1/E. IO also seized the torn uniform in a white cloth Pulanda and sealed with the seal RK and prepared the memo Ex PW1/D. IO recorded disclosure statement of accused Ex PW4/A. IO recorded his statement under section 161 Cr.PC and discharged him from this case. He has correctly identified the accused. MHCM produced one pulanda duly sealed with the Seal of PV. The same was opened with the permission of the Court. On opening, it was found containing one shirt of White Colour having the name plate of Sumit Lochab. The same was correctly identified by the witness as a shirt which was worn by him on that day of incident. The case property exhibited as Ex. P1. Case property i.e., D-van bearing registration DL-1LL- 3753 released on superdari. Ld. Counsel for the accused submitted that she was not disputing the identity of case property.
During cross-examination of the witness by Ld. Counsel for the accused, PW-4 stated that he received the call at around 3.10 pm. He was posted at PP Red Fort PS Kotwali on that day. The distance between the incident spot and the PP Red Fort is about 1 Km. He admitted that he did not see the incident taking place. He admitted that State Vs. Kishan FIR No. 351/2014 PS Kotwali 11/32 he did not examine any public witness regarding this case. He recorded the statement of the complainant only. He did not prepare any other document except the tehrir and rukka. He denied the suggestion that he did not record the same version of the complainant. He denied the suggestion that he prepared the tehrir upon his whim to falsely implicate the accused person. He denied the suggestion that the police officials were seeking money from the accused person that is why he falsely implicated the accused persons. He denied the suggestion that he was deposing falsely.
8. PW-5 HC Sunil Kumar has deposed in his examination-in-chief that on 03.05.2014, he was on emergency duty from 8:00 am to 8:00pm. On receiving DD no 28PP, he along with head Constable Ram Kishan went to the incident spot i.e., old Iron Bridge, behind Red fort. They met constable Sumit and handed over the accused and D -van bearing registration no DL 1LL 3753, and informed them about the incident. HC Ram Kishan recorded the statement of constable Sumit Ex.PW1/A and prepared the Rukka. The same was handed over to him and he went to PS for registration of FIR. After registration of FIR he went to the incident spot and handed over the same to the ASI Ramesh Kumar. He went to Aruna Asaf Ali Hospital for medical examination of the accused and after medical examination, he handed over the copy of MLC to the ASI Ramesh Kumar. IO recorded his statement under State Vs. Kishan FIR No. 351/2014 PS Kotwali 12/32 section 161 CrPC and discharged him from this case. He has correctly identified the accused.
During cross-examination of the witness by Ld. Counsel for the accused, PW-5 stated that he was posted at PP Red Fort PS Kotwali on that day. The distance between the incident spot and the PP Red Fort was about 1 Km. He admitted that he did not see the incident taking place. He went to PS for the registration of FIR between 4:00 pm to 4:30 pm. He did not remember the time taken for the registration of FIR. He denied the suggestion that he was deposing falsely.
9. PW-6 Ahmar Majid Shams has deposed in his examination-in-chief that on 03.05.2014, he used to drive an auto and was an auto driver. He does not know any facts about the present case. He does not know the accused in the present case. He had never given any statement to the police official in the present matter.
10. After seeking permission from the court, PW-6 was cross-examined by Ld. APP for the State. During cross- examination of the witness by Ld. APP for the State, PW-6 was confronted with his statement recorded u/s 161 Cr.P.C on 03.05.2014 which is Mark PW-6/X1. The averments made by the witness in the above said statement are read over to him and the witness has denied the above said statement in toto. He denied the suggestion that on 03.05.2014 at about 02:45 PM, at Old Iron Yamuna Bridge, the accused whose name was later revealed as State Vs. Kishan FIR No. 351/2014 PS Kotwali 13/32 Kishan and was driving D-VAN bearing registration No. DL-1LL-3753 has manhandled the complainant/traffic constable Sumit Kumar while he was discharging his public duty. He denied the suggestion that the accused had assaulted and used criminal force upon the complainant and caused hurt to him. He denied the suggestion that the accused had torn the uniform of Ct. Sumit Kumar. He denied the suggestion that he was deposing falsely to save the accused as settlement has taken place between him and the accused person. He denied the suggestion that he was deliberately not identifying the accused to save him from the perils of the case.
During cross-examination of the witness by Ld. Counsel for the accused, PW-6 admitted that nothing had happened on that day in his presence.
11. PW-7 Retired SI Ramesh Kumar has deposed in his examination-in-chief that on 03.05.2016, the investigation of the present case was marked to him after the registration of the present FIR on the same day. On receiving the information about the present case, he went to the spot i.e. Old Iron Yamuna Bridge, near police booth Delhi. He met the complainant Ct. Sumit Kumar, HC Ram Kishan, Ct. Sunil, accused, one public person namely Ahmer Majid, ASI Jagpal and Ct. Neeraj. HC Ram Kishan handed over the copy of FIR alongwith original rukka to him and also custody of the accused along with one D- VAN bearing No. DL-1LL-3753. He prepared the site plan State Vs. Kishan FIR No. 351/2014 PS Kotwali 14/32 at the instance of the complainant Ex. PW-7/A bearing his name at point A. The complainant Sumit was sent to Aruna Asaf Ali Hospital for his medical treatment and his ME bearing No. 14011 was collected on which the doctor opined the nature of injury "simple blunt". He seized the torn uniform (torn pocket) i.e. shirt worn by the complainant Sumit vide seizure memo Ex. PW-1/D bearing his signature at point C. He seized the D-VAN bearing No. DL-1LL-3753 which accused was driving on the said day vide seizure memo Ex. PW-1/E bearing his signatures at point C. He arrested the accused and carried out his personal search vide memos Ex. PW-1/B and Ex. PW-1/C respectively bearing his signatures at point C. He recorded a disclosure statement of accused Ex.PW-4/A. Accused was medically examined and was later put behind the bars in the lock-up and he deposited the case property in the malkhana. He recorded the supplementary statement of complainant and statement of all other witnesses u/s 161 Cr.PC and they were discharged. He obtained the sanction u/s 195 Cr.P.C from the ACP, Traffic Ex. A5 and placed the same on record. The seized D-VAN was released on superdari as per the superdari order of the concerned court. He was transferred to some other PS and the investigation of the present case was marked to ASI Sanjeev. He has correctly identified accused. MHC(M) produced the case property in a white pullanda duly sealed with the seal of VG bearing the details of the present case. The seal was State Vs. Kishan FIR No. 351/2014 PS Kotwali 15/32 broken and the pullanda was opened with the permission of the court and one white color shirt was taken out and shown to the witness. The witness has correctly identified the shirt belonging to the complainant Ct. Sumit of which the pocket was torn and having the badge of Constable Sumit Lochab and the whistle cord. The same was exhibited as Ex. P-1.
During cross-examination of the witness by Ld. Counsel for the accused, PW-7 admitted that the incident had not taken place in his presence. He denied the suggestion that no such incident had taken place. He denied the suggestion that the accused has been falsely implicated in the present case at the instance of the complainant as he refused to pay bribe to the complainant. He denied the suggestion that all the investigation was not done in the fair manner and that all the documents were prepared while sitting in the PS. He denied the suggestion that the public person namely Ahmer Majid was falsely cited as witness for supporting the present case. He denied the suggestion that he was deposing falsely.
12. PW-8 ASI Sanjeev Kumar has deposed in his examination-in-chief that an investigation in the present case was done by ASI Ramesh Kumar. When he got transferred this file was handed over to him. Since the investigation was completed in all aspects he only prepared the final report the same was exhibited as Ex. PW-8/A bearing his signature at point A. State Vs. Kishan FIR No. 351/2014 PS Kotwali 16/32 During cross-examination of the witness by Ld. LAC for the accused, PW-8 admitted that he had not done any investigation in the present case.
13. Vide statement of the accused dated 21.01.2019 recorded u/s 294 Cr.P.C, the accused admitted an FIR as Ex.A-1, certificate u/s 65 (B) Indian Evidence Act as Ex.A-2, DD No.28 PP dated 03.05.2014 as Ex.A-3, examination of certificate of Daily Diary form of AAA Hospital No. 14011 as Ex. A-4 and the complaint under Section 195 Cr.P.C as Ex. A-5 without admitting the contents thereof and vide statement dated 22.02.2022, the accused submitted that he did not want to examine the witness at serial no.9 namely Smt. Anju and admitted the factum of the statement of the witness. The prosecution evidence was closed on 23.08.2023. On 05.10.2023, statement of accused u/s 313 read with section 281 Cr.P.C was recorded in which he denied all the prosecution evidence by stating it as incorrect and they stated they he was innocent. He submitted that he had been falsely implicated in the case as he did not give bribe to the police official and all the exhibits are false and fabricated and prepared on the instance of IO. He also submitted that he did not want to lead defence evidence.
FINAL ARGUMENTS:
14. Final arguments were heard at length. At the time of State Vs. Kishan FIR No. 351/2014 PS Kotwali 17/32 final arguments it is submitted by Ld. APP for the State that prosecution witnesses have given consistent statements and the statement of the complainant Ct. Sumit finds corroboration from the testimony of other eye- witnesses. Therefore, the prosecution has been able to prove its case against the accused beyond doubt and all the essential ingredients of the offence charged have been proved beyond a reasonable doubt.
15. On the other hand, Ld. LAC for the accused has argued that there are material inconsistencies in the deposition of the complainant and other eye-witnesses. It is further submitted that there was only one public witness cited in the list of prosecution witnesses however, he has not supported the case of the prosecution and no other public witness has been examined by the prosecution despite the fact that public persons were available. The counsel for the accused further argued that the prosecution has failed to discharge the onus of proof and so benefit of doubt be given to the accused.
APPRECIATION OF EVIDENCE:
16. I have anxiously heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record. At this juncture, it is prudent to discuss the penal provisions involved in the case for arriving at just a State Vs. Kishan FIR No. 351/2014 PS Kotwali 18/32 decision. The penal provisions are reproduced in verbatim:-
Section 186. Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
332. Voluntarily causing hurt to deter public servant from his duty.
--Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
17. There is a maxim in Roman Law i.e., "ei incumbit probatio qui dicit, non qui negat" which means "proof lies on him who says, not on him who denies". It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in State Vs. Kishan FIR No. 351/2014 PS Kotwali 19/32 criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
18. Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
State Vs. Kishan FIR No. 351/2014 PS Kotwali 20/32
19. Coming to the case at hand, section 186, IPC, provides the punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 353 IPC provides the punishment for assaulting or using criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant. The common thread running between Section 186, IPC and Section 353, IPC is that the offence should have been committed against a public official when the official was discharging his official duties as a public servant. So, it is necessary for the prosecution to establish that the complainant was discharging her official duties as a public servant when the accused committed offences with which he is charged in the present case.
20. As to what is the meaning of causing obstruction has not been defined anywhere in the IPC, however, as per its definition given in Cambridge dictionary, to obstruct means to block a road, passage, entrance, etc. so that nothing can go along it, or to prevent something from happening correctly by putting difficulties in its way. Thus, any voluntary act on the part of any person which prevents a public servant from discharging public functions is punishable under this provision. As per section 186, mere State Vs. Kishan FIR No. 351/2014 PS Kotwali 21/32 obstruction to a public servant discharging public functions is punishable though it may or may not involve any kind of physical contact with the victim and obstruction may be caused by any extraneous factor. The focus of this provision is on voluntariness of the act and causing of obstruction.
21. While assault has been defined in section 351 of the IPC, criminal force finds its definition in section 350 IPC. Both the said definitions are reproduced below for an easy reference.
Criminal force.- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
Assault.- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.-Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
22. Thus, assault may be caused even without touching the victim and mere gesture to hit or preparation to use criminal force which causes apprehension in the mind of the victim is also punishable under this section. As is apparent from the definition given above, in order to State Vs. Kishan FIR No. 351/2014 PS Kotwali 22/32 attract offence of use of criminal force upon a public servant it is required that the force must have been used intentionally without that person's consent. It may be argued that the contents of section 186 and 353 are overlapping to an extent as both involve deterrence to public servants even without use of force, however, the same has been clarified by the Hon'ble Apex Court of India in a three judges bench judgment titled as Durgacharan Naik And Ors. vs. State Of Orissa [1966 SCR (3) 636] wherein it was held as follows:
"It is true that most of the allegations in this case upon which the charge under Section 353,Indian Penal Code is based are the same as those constituting the charge under s. 186,Indian Penal Code but it cannot be ignored that section 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Codeis applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section."
23. To prove the guilt of the accused for the offences, she is charged with in the present matter, it was incumbent upon the prosecution to prove the following facts:
State Vs. Kishan FIR No. 351/2014 PS Kotwali 23/32 ● Firstly, the injured Ct. Sumit was a public servant and was discharging his public function at the time of incident;
● Secondly, that the accused Kishan had voluntarily obstructed complainant while he was discharging his public function;
● Thirdly, the accused Kishan had assaulted and used criminal force against complainant to deter him from discharging his public function;
● Fourthly, in doing so the accused Kishan inflicted an injury on the person of the complainant.
24. My observations on the evidence led at the trial are delineated hereinafter.
25. In the present case, a complaint under Section 195 Cr.P.C was made by the Assistant Commissioner of Police, Traffic, North District, Delhi, who was the senior officer of the complainant at the relevant time. The said complaint is Ex.A-5. The complaint has been duly proved. Therefore, compliance of Section 195.Cr.P.C has been done in the present case.
26. The case of the prosecution is that of the accused Kishan had obstructed the complainant Ct. Sumit in discharge of his public duty and used criminal force thereby causing simple hurt to him in order to deter him from discharging his duty while he was on duty at traffic at Traffic circle. The aforesaid prosecution version indicates that in order to bring home the guilt of the accused, it is an identity as assailant which must be proved beyond reasonable doubt by the prosecution. Keeping in view of State Vs. Kishan FIR No. 351/2014 PS Kotwali 24/32 the aforesaid observation, perusal of the testimonies of PWs reflected that the only public witness cited in the list of prosecution witnesses is PW-6 namely Ahmar Majid has not supported the case of prosecution to this effect. When he was asked to identify the person who was fighting with the Ct. Sumit on alleged date, he was not able to identify the accused present in the court. Further, he was cross-examined with permission of the court by Ld.APP for the state, however, he failed to identify the accused.
27. It is crucial here to note that PW-6 is the only public person as well as the eye-witness in the present case and he is not supporting the version of the prosecution. He has completely turned hostile as to the story of the prosecution, he denied his presence at the spot on the alleged date of incident, he further denied any assault/manhandling of Ct. Sumit in his presence, he further denied taking part in apprehension of the accused on the alleged date. This creates reasonable doubts in the story of the prosecution.
28. There are several discrepancies in the testimony of the PWs as well. Firstly, as observed above, a major lacuna in the evidence of PW-6 is that he is not able to identify the accused. Secondly, from the testimony of other PWs, there are contradictions as to whether PW-6 was even present at the spot or not. PW-1, PW-2, PW-3 and PW-7 deposed the presence of PW-6 at the spot. However, PW-4 and PW-5 who immediately came at the spot have omitted to depose about the presence of PW-6 at the spot. Further, as per the State Vs. Kishan FIR No. 351/2014 PS Kotwali 25/32 documentary evidence relied upon by the prosecution, there is no signature of PW-6 on any of the said documents. It is highly improbable that a public witness who is also an eye-witness was not joined in the investigation when his presence is also not denied at the spot when IO came at the spot. No explanation came forward by the IO as to why PW-6 was not cited as a witness to the documentary proceedings. PW-1 even deposed that PW-6 was present when seizure memo of case property, arrest memo and personal search memo of accused was prepared. This creates a serious dent in the story of prosecution.
29. Another dent in the story of the prosecution is that no public was made witness in the present case. PW-1 / Complainant himself stated that IO has enquired from the public, which shows that public persons were present at the spot. However, no notice has been given to any of the public witnesses to join the investigation. Then, the question arises why none of these persons who were present there was involved in the investigation. The alleged incident took place at around 02:45 pm. Therefore, in all probability public persons must have been present around the spot as it was broad daylight and complainant also deposed qua the presence of public at the spot. It is crucial to note here that even the public witness i.e. PW-6 completely denied his presence at the spot, neither his statements were recorded nor he was made witness to any State Vs. Kishan FIR No. 351/2014 PS Kotwali 26/32 documentary proceedings. It turns out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure. Merely mentioning that public persons were requested to join the investigation is of no avail. The names of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
30. Here, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in State Of Punjab V. Balbir Singh AIR 1994 SC 1872, held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
31. Here, I place my reliance on a case law reported as Anoop Joshi v. State 1999(2) C.C. Cases 314 (HC), where the Hon'ble High Court of Delhi has observed as under:
State Vs. Kishan FIR No. 351/2014 PS Kotwali 27/32 "18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
32. Another loophole is with regard to the seizure memo of the case property i.e. uniform of the complainant. As per the prosecution story, the uniform of Ct. Sumit was seized in a cloth pullanda and seizure memo of the case property had been prepared. PW-1 deposed that the ZO and public person Ahmed Majid managed to control the accused while he was assaulting the complainant. He further deposed that Ahmed Majid was also present at the spot when the seizure memo of the case property was prepared. However, a perusal of seizure memo which is Ex. PW-1/D reflected that there is no signature or name of Ahmed Majid mentioned.
33. Another deformity in the prosecution version is regarding the procedure to use seal and its handing over after use. Coming to the factual matrix of the present case, PW-1 deposed in his examination-in-chief that IO has seized and sealed the case property at the spot in clothed white pullanda with the seal of RK. However, the testimonies of PW-1 and PW-7/IO are silent qua handing State Vs. Kishan FIR No. 351/2014 PS Kotwali 28/32 over of the seal to any other persons and no handing over memo was surfaced in the record or exhibited in the prosecution evidence. The seal was handed over to any other person or it remained with the IO only, who was already interested in the case of the prosecution or deposited in malkhana, this remained open to interpretation. No explanation has come on record as to why the handing over memo was not made or the seal was not handed over to an independent witness or deposited in malkhana. In such a factual backdrop, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the said witness and thus, there was no scope of tampering of case property.
34. In this regard, judgment in a case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"...The very purpose of giving a seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
35. Further, there are no DD entries of departures and arrival of the complainant Ct. Sumit or any police witnesses including who were allegedly present at the spot State Vs. Kishan FIR No. 351/2014 PS Kotwali 29/32 along with the complainant. It is an established statutory obligation upon the Police officials to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II− The following matters shall, amongst others, be entered:
"(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
36. Since testimony of only public witness is not supporting the case of prosecution, the arrival and departure entries of all police witnesses who were allegedly present at the spot and had witnessed the whole incident, became a vital piece of evidence. However, no such daily diary entry regarding arrival/departure of the said witnesses are present on record and proved. This puts the presence of all police witnesses at the spot at the relevant time under a cloud of suspicion and the benefit of this doubt goes in favor of the accused.
37. Further, there is no CCTV footage etc. of the place State Vs. Kishan FIR No. 351/2014 PS Kotwali 30/32 of incident and from the entire evidence available on record, the presence of the accused at the place of alleged offence at the time of that incident cannot be established. No CDR, location chart etc. of the phone number of the accused has been placed on record to show their presence at or about the place and time of occurrence of the alleged incident. In the light of the above discussion, the prosecution is not able to establish the presence of the accused at the spot of incident beyond reasonable doubt.
38. All the above mentioned facts and circumstances create reasonable doubts on the allegation of happening of the incident as mentioned hereinabove as the prosecution is not able to prove the presence of accused at the post. The fact of presence of all police witnesses on the spot at the relevant date and time itself has come under the clouds of reasonable doubts. On careful perusal and analysis of the entire evidence, I find that there is no corroborative, consistent and sufficient evidence to make up the edifice of the prosecution case which has been produced by the prosecution. Given the aforementioned facts and circumstances, it has to be concluded that the prosecution has failed to prove its case against the accused beyond reasonable doubt.
39. The accused is entitled to benefits of reasonable doubt. Accordingly, accused Kishan s/o Sh. Bhamma stands acquitted under Section 186/332/353 Indian Penal Code.
State Vs. Kishan FIR No. 351/2014 PS Kotwali 31/32 File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court Digitally signed by MEENA CHAUHAN MEENA Date:
CHAUHAN 2024.02.05 today i.e. 05.02.2024 16:18:44 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi [This judgment contains 32 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Kishan FIR No. 351/2014 PS Kotwali 32/32