Delhi District Court
State vs Jitender on 5 July, 2024
IN THE COURT OF SH. AJAY NARWAL, JMFC-02, NORTH : ROHINI
COURTS/DELHI.
DLNT020218262022
State Vs. Jitender Kumar
Case No.10027/2022
FIR No. 614/2021
PS: S.P. Badli
U/S: 353/332 of IPC
and 184 of M.V. Act
JUDGMENT
ID number of the case : DLNT020218262022 Date of commission of offence : 19.08.2021 Date of institution of the case : 26.09.2022 Name of the complainant : Sh. Narender Kumar Name of accused persons and : Jitneder Kumar s/o Sh. Dhanraj, r/o H. No. B- addresses 123, Raja Vihar, Badli Industrial Area, Delhi. Offence complained of or proved : 332/353 of IPC and 184 of M.V. Act Plea of the accused : Pleaded not guilty Final order : Acquittal Date of judgment : 05.07.2024 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 19.08.2021 at about 6.00 p.m, at Shanta Clinic, Sanjay Gandhi Transport Nagar, Delhi, accused namely Jitender assaulted and used criminal force against complainant Narender and his team, State Vs. Jitender FIR No. 614/2021 Page no. 1 of 11 employees of Delhi Fire Service, while he was executing his duty as such public servant. Further, accused voluntarily caused hurt to public servant Narender by beating him while he was discharging his duties as such public servant and was found driving Santro car bearing registration no. HR19F-4646 against the flow of the traffic on the wrong side of the road, which endangers the life of the road users and thus committed an offence u/s 332/353 IPC and 184 of M.V. Act. Thereafter, an FIR was registered against the accused. Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [ For brevity, hereinafter referred as Cr.P.C.]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Charge
4. A prima facie case under Sections 332/353 IPC and 184 of M.V. Act, was found to be made out against the accused namely Jitender Kumar. Charge was framed against the accused vide order dated 10.04.2024 upon the accused to which he pleaded not guilty and claimed trial.
5. In order to prove the case, the prosecution examined three witnesses.
State Vs. Jitender FIR No. 614/2021 Page no. 2 of 11
6. PW-1 Sh. Narender Kumar deposed that on 19.08.2021 at about 4.35 pm, one call was received in the office regarding fire near Samaipur Shamshan Ghat and they were deployed at water tanker-17 and going towards sector 16 Rohini for refilling of water. At that time, one Santro Car bearing registration no. HR19F-4646 was coming from the opposite directions and due to which traffic jam took place. Thereafter, the driver of the said vehicle accused Jitender started misbehaving with the firefighting staff and using filthy language. Thereafter, accused brought the wooden stick/lath from his car and started beating the firefighting staff. Public person gathered on the spot and recorded the video of the same. Due to the beatings given by the accused, he sustained several internal injuries and his medical got conducted at BSA Hospital. He could not give the statement due to severe pain. The complaint was made by Incharge Raj Kapoor in writing to the PS. Police asked for video recording or photographs of the incident, however, it was not available with them. IO prepared the site plan. IO recorded his statement. He identified the accused present before the court. He also identified the photographs of case property i.e. vehicle. The said witness was cross examined by Ld. APP for the State with the permission of the Court as he was not disclosing the complete facts. During the cross-examination by the Ld. APP for State, PW1 stated that accused was handed over by the incharge Raj Kapoor to the police. He denied the suggestion that site plan was prepared at his instance. The said witness was duly cross examined by Ld. Defence counsel.
7. PW2 Sh. Raj Kapoor deposed that on 19.08.2021 at about 4.35 pm, one call was received in the office regarding fire near Samaipur Shamshan Ghat. He was the incharge of the fire station and vehicle i.e. water tanker-70 going towards sector 16 Rohini for State Vs. Jitender FIR No. 614/2021 Page no. 3 of 11 refiling of water. At that time, one Santro Car bearing registration no. HR19F-4646 was coming from the opposite directions due to which traffic jam took place. Thereafter, the driver of the said vehicle accused Jitender started misbehaving with the firefighting staff and using filthy language. Thereafter, accused brought the wooden stick/lath from his car and started beating the firefighting staff. Public person gathered on the spot and recorded the video of the same. Due to the beatings given by the accused, Fire operator Narender sustained several internal injuries and his medical got conducted at BSA Hospital. The complaint was made by him in writing to the PS i.e. Ex. PW2/A. IO recorded his statement. He identified the accused present before the court. He also identified the photographs of case property i.e. vehicle. The said witness was cross examined by Ld. APP for the State as he was not disclosing complete facts. During the cross examination by Ld. APP for State, PW2 stated that he handed over the accused to the police and police seized the vehicle of the accused. The said witness was duly cross examined by Ld. Defence counsel.
8. PW3/ASI Vijay deposed that on 19.08.2021, in the late night, one written complaint was received in the PS, which was marked to him. He prepared the tehrir i.e. Ex. PW3/A. He prepared the site plan at the instance of fireman Narender i.e. Ex. PW3/B. He arrested and personally searched the accused vide memos Ex. PW3/C and Ex. PW3/D. He also recorded the disclosure statement of accused i.e. Ex. PW3/E. Thereafter, I seized the Santro car vide memo Ex. PW3/F. He searched for the wooden stick but of no avail. He obtained the MLC of injured Narender. He issued notice u/s 91 of Cr.P.C to the Director Fire to obtain certain documents Ex PW3/G, which was replied by Officer Incharge. He State Vs. Jitender FIR No. 614/2021 Page no. 4 of 11 identified the accused present before the court. He also identified the photographs of case property i.e. vehicle. The said witness was duly cross examined by Ld. Defence counsel.
9. After completion of prosecution evidence, statements of accused under Section 313 Cr.P.C. were recorded separately. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he had been falsely implicated in this case. Accused did not opt to lead any evidence in his defence and the same was closed.
10. It is a cardinal principle of criminal jurisprudence that prosecution must prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Fur- ther, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any ben- efits whatsoever from the weakness, if any, in the defence of the accused. Accused is enti- tled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
11. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. On the basis of the above oral and documentary evidence on record, learned APP requested for conviction of the accused. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt. Accordingly, he prayed for the acquittal of the accused.
State Vs. Jitender FIR No. 614/2021 Page no. 5 of 11 LAW INVOLVED IN THE PRESENT CASE
12. Section 332 of IPC provides for the voluntarily causing hurt to deter public servant from his duty and reads as under:-
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.
13. Section 353 IPC provides for assault or criminal force to deter public servant from discharge of his duty and reads as under:-
Whoever assaults or uses criminal force to any person being a public servant in the exe- cution 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 to 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.
14. Section 184 in The Motor Vehicles Act, 1988 reads as under:-
Whoever, drives a motor vehicle at a speed or in a manner which is dangerous to the pub- lic [or which causes a sense of alarm or distress to the occupants of the vehicle, other State Vs. Jitender FIR No. 614/2021 Page no. 6 of 11 road users, and persons near roads,] having regard to all the circumstances of case in- cluding the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term 2[which may extend to one year but shall not be less than six months or with fine which shall not be less than one thousand rupees but may extend to five thousand rupees, or with both], and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may ex- tend to two years, or with fine [of ten thousand rupees], or with both. [Explanation.-- For the purpose of this section,--
(a) jumping a red light;
(b) violating a stop sign;
(c) use of handheld communications devices while driving;
(d) passing or overtaking other vehicles in a manner contrary to law;
(e) driving against the authorised flow of traffic; or
(f) driving in any manner that falls far below what would be expected of a competent and careful driver and where it would be obvious to a competent and careful driver that driving in that manner would be dangerous, shall amount to driving in such manner which is dangerous to the public.]
15. A perusal of the provisions Section 332 and 353 of IPC would indicate that 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 to the lawful discharge of his duty as such public servant or whoever assaults using criminal force on any person State Vs. Jitender FIR No. 614/2021 Page no. 7 of 11 being a public servant in the execution of the duty as a public servant or with intent to prevent or deter that a person from discharging his duty as public servant or a consequence of anything done or attempted to be done by such persons in lawful discharge of his duty as a public servant shall be punishable. Thus, the sine-qua-non for initiating proceeding by invoking Section 332/353 of the IPC is that firstly, the person should be a public servant and secondly, he is discharging his duty as a public servant at the time of the incident.
16. In the present case, there is no dispute about PW1 namely Narender not being a public servant. What would have to be considered is whether PW1 was discharging his duty as a public servant when the incident is allegedly stated to have occurred. It is pertinent to mention the prosecution has examined PW1 and PW2 to prove its case against the accused. The said witnesses were the star witnesses of the prosecution. The said witnesses were also cross examined by Ld. Counsel for the accused. PW1 has stated during his cross examination that "It is correct that I have not brought any record to show that we were on official duty to extinguish Fire in Samaipur on the fateful day". PW1 also stated during his cross examination that "It is correct that I do not have any record to show that I was on duty at Water Tanker- 17 on the fateful day". PW2 stated during his cross examination that "It is correct that I have not brought any record to show that we were on official duty to extinguish Fire in Samaipur on the fateful day" and "It is correct that I do not have any record to show that I was on duty at Water Tanker-17 on the fateful day". IO of the case during his testimony has not stated that whether he has seized any State Vs. Jitender FIR No. 614/2021 Page no. 8 of 11 document which shows that PW1 was on official duty when the incident happened.
17. Perusal of the testimonies of PW1, PW2 and IO reveals that nothing has come on record which fortify the fact that PW1 was on official duty as public servant on the day when the incident happened. To the reasons best known to the IO, he failed to seize any document and did not record the testimony of any concerned official to show that PW1 was on official duty on 19.08.2021. When the prosecution has failed to prove the fact that on 19.08.2021, PW1 was discharging his public duty as a public servant, there is no protection which is available to such an official nor could such an official claim a benefit of Section 332/353 of the IPC to initiate proceedings. The benefit of Section 332/353 of the IPC is only available to an official who is discharging the duty/and responsibility assigned to such official. Since, the prosecution has failed to prove the essential ingredients of Section 332/353, this Court is of the view that prosecution has failed to prove its case beyond reasonable doubt against the accused for the offence under Section 332/353 of IPC.
18. It is apposite to mention that charge under Section 184 of MV Act, 1988 was also framed against the accused. PW1, PW2 and IO have deposed clearly that road/spot was two-way road and public persons were gathered on the spot. It is difficult to understand when the accused was driving his car on two-way traffic than how come it can be assumed that he was driving against the flow of traffic on the wrong side. The prosecution has also not examined any public/independent witness who was present at the spot apart from PW1 and PW2 to fortify the fact State Vs. Jitender FIR No. 614/2021 Page no. 9 of 11 that accused was driving the vehicle on the wrong side. Hence, this Court is of the view that prosecution has failed prove its case beyond reasonable doubt against the accused for the offence under Section 184 of MV Act 1988.
19. It is pertinent to mention that no doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused.
20. At this stage, court further deems it fit to state, that it is a settled principle of criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. It is a settled proposition of law that in a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by State Vs. Jitender FIR No. 614/2021 Page no. 10 of 11 establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
21. Therefore, in view of the above said discussion it is pellucid, that the case of the prosecution suffers from several glaring loopholes. Hence, this court is of the considered opinion, that the prosecution has failed to prove the guilt of the accused Jitender Kumar beyond reasonable doubt. Accordingly, accused Jitender Kumar stands acquitted in the present case for the offence punishable u/s 353/332 of IPC and 184 of MV Act, 1988. Digitally signed by AJAY AJAY NARWAL NARWAL Date:
2024.07.05 16:47:30 +0530 Dictated directly into the computer (AJAY NARWAL) and announced in the open Court, MM-02/North/Rohini On 05th July, 2024. Delhi/05.07.2024 Digitally This judgment consists of 11 pages and all bear my signature. AJAY signed by AJAY NARWAL NARWAL Date:
2024.07.05 16:47:37 +0530 (AJAY NARWAL) MM-02/North/Rohini Delhi/05.07.2024 State Vs. Jitender FIR No. 614/2021 Page no. 11 of 11