Delhi District Court
State vs Davender Kaushik Etc. on 27 February, 2015
FIR
No. 471/00
PS Keshav Puram
U/s 186/332/353/34 IPC
State Vs Davender Kaushik etc.
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE: NORTH WEST-04, DELHI
Case ID:- 02404R0379132014
FIR No. 471/00
PS Keshav Puram
U/s 186/332/353/34 IPC
State Vs Davender Kaushik etc.
Date of Institution of case : 16.10.2001
Date of Judgment : 27.02.2015
a) Date of offence : 18.12.2000
b) Offence complained of : U/s 186/332/353 r.w Section 34 IPC
c) Name of Accused persons , 1) Devender Kaushik
their parentage & residence S/o Sh. Rajender Kaushik
R/o 698/43, Lekhu Nagar,
Tri Nagar, Delhi
2) Sh. Amanullaha
S/o Mohd Mobim
R/o 580/37, Onkar Nagar,
Tri Nagar, Delhi.
3) Anand Goel
S/o Sh. Gyani Ram
R/o 914/59, Lekhu Nagar,
Tri Nagar, Delhi.
4) Janki Prasad Sharma
S/o Late Sh. Tika Ram Sharma
R/o 878A/54, Onkar Nagar, Delhi
(proceedings abated since expired)
d) Plea of Accused : Pleaded not guilty
e) Final order : Accused Devender Kaushik &
Amanullaha Acquitted
Accused Anand Goel Convicted
1/21
FIR
No. 471/00
PS Keshav Puram
U/s 186/332/353/34 IPC
State Vs Davender Kaushik etc.
BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:-
1. That on 18.12.2000 at about 2:00 p.m in front of factory no. 822/50, Lekhu Nagar, Tri Nagar, Delhi the accused persons namely Devender Kaushik, Janki Prasad, Amanullah and Anand Goel in furtherance of their common intention voluntarily obstructed the complainant Sh. Ram Kumar ASI Special Cell NDR Lodhi Colony, who was working as public servant at that time in the discharge of his public functions, that the accused persons voluntarily caused simple hurt on the person of the complainant to deter him from discharge of his public duty and that accused persons in furtherance of their common intention assaulted or used criminal force to the complainant during the execution of his duty and thus committed an offence punishable u/s 186, 332 & 353 read with Section 34 IPC within the cognizance of this Court.
2. The Court took cognizance of the abovesaid offences punishable u/s 186, 332 and 353 read with Section 34 IPC and as a prime facie case was made out against the accused persons for offence punishable u/s 186, 332 and 353 read with Section 34 IPC, charge was accordingly framed against them to which accused persons pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 186, 332 & 353 read with Section 34 IPC, the prosecution has to prove the following essential 2/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. ingredients of the said Sections:-
a. Section 186 IPC :- That a public servant was in discharge of his official duty, that voluntarily obstruction was caused to such public servant and that such obstruction was in the discharge of public function of such public servant.
b. Section 332 IPC:- That hurt was caused to a public servant while such public servant was acting in the discharge of his duty, that it was caused to prevent or deter him from discharging his duty as such public servant or that such hurt was in consequence of anything done or attempted to be done by such public servant in lawful discharge of his duty.
c. Section 353 IPC :- That accused assaulted or used criminal force to a public servant, that such public servant was then acting in the discharge of his duty, that accused assaulted with the intention of preventing or deterring such public servant from discharging his duty or it was used in consequence of anything done or attempted to be done by the said public servant.
d. Section 34 IPC:-
i) That the criminal act or a series of acts which include omissions and need not necessary be an overt act should have been done not by one person but by more then one person.
ii) That the doing of every such individual act cumulatively resulting into the commission of criminal offence should have been in furtherance/ advancement/ promotion of common intention of all such persons.
iii) This Section deals with constructive criminal liability which provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them ....... Nand Kishore v State of M.P (2012) 1 SCC (Cri) 378: (2011) 12 SCC 120; Brathi v State of Punjab (1991) 1 SCC 519.
4. To prove its case, prosecution examined its 13 witnesses.
3/21FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc.
5. PW-1 HC Bansi Lal deposed that on 18.12.2000 he was posted at Head Constable at PS Saraswati Vihar.
6. PW-2 SI Ram Kumar deposed that on 18.12.2000 he was posted at Special Cell Lodhi Colony, New Delhi, that at about 2:00 p.m, they reached near Factory No. 822/50, Lekhu Nagar, Tri Nagar, Delhi and started sealing of the factory, that many public persons collected there out of which 4-5 persons caught hold him and started beating him, that one person Anand Goel attacked with fist on his right eye and he started bleeding and that complaint was lodged vide Ex. PW-2/A bearing his signature at point A. PW-2 SI Ram Kumar further deposed that on 11.01.2001, accused Anand Goel was arrested on his identification vide memo Ex. PW-2/B and his personal search was conducted vide memo Ex. PW-2/C both bearing his signatures at point A. During the cross examination the witness deposed that he does not remember who had taken him to the hospital. The witness denied the suggestion that he did not sustain injuries while sealing the abovesaid factory. The witness further deposed that on 18.12.2000, his job was to collect the data and to send it to his office. The witness denied the suggestion that on 18.12.2000 at about 2:00 p.m he was not present with the team no. 30 of MCD. The witness further deposed that on 18.12.2000 ASI Baljeet met him in Sunder Lal Jain Hospital and he recorded his statement there, that in his statement, he told ASI Baljit about the name of the owner of the abovesaid factory and not about the other accused persons and again said that he told the name of Anand Goel as the owner of the abovesaid factory and that it came to his knowledge later on that he was not the owner of the abovesaid 4/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. factory. The witness denied the suggestions that he did not receive injuries or that he was not beaten by the accused persons, that he is deposing falsely and that the accused persons have been falsely implicated in the present case.
7. PW-3 Retired SI Chander Pal deposed that on 18.12.2000, he was on sealing duty in North West District Lekhu Nagar, Tri Nagar in factory no. 822/50, Lekhu Nagar, Tri Nagar Delh alongwith MCD Staff, SDM, CID Officials and local police, that during the sealing there was squabbling between MCD Staff and owner of the factory, that many public persons were got collected by the owner of the factory and ASI Ram Kumar was beaten, that some public persons suceeded in running away but they apprehended Devender Kaushik, Janki Prasad and Mohd Amanullah at the spot, that they arrested the accused persons vide memos Ex. PW-3/A, Ex. PW-3/B and Ex. PW-3/C and their personal search was conducted vide memos Ex. PW-3/D, Ex. PW-3/E and Ex. PW-3/F respectively and that site plan Ex. PW-3/G was preapred at his instance.
During the cross examination the witness deposed that MCD staff proceeded to another premises for sealing purpose, that he does not remember as to who took the ASI Ram Kumar to the hosptial, that he saw ASI Ram Kumar being taken from the spot to the hospital, that he saw at a distance of about 1-2 feet away from ASI Ram Kumar and that there were many people who were opposing the sealing. The witness denied the suggestion that at factory no. 822/50, Lekhu Nagar, Tri Nagar, there was no fight or beating with ASI Ram Kumar and that he had not apprehended the 5/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. three accused persons.
8. PW-4 ASI Harjit Singh proved the registration of FIR No. 471/2000 in the present case. The same is exhbited as Ex. PW-4/A and endrosement Ex. PW-4/B bearing his signature at point A.
9. PW-5 HC Bijender deposed that on 18.12.2000 he was posted at PP Shanti Nagar PS Keshav Puram, that on that day, IO received information through wireless and he alongwith IO reached at 822/50, Lekhu Nagar, Tri Nagar, that many public persons were gathered there, that IO prepared the rukka and handed it to him for registration of the FIR, that he returned to the spot after registration of the FIR and handed over the carbon copy of FIR and original rukka to the IO, that there were two police officials one Ct. Bansi Lal and other police official who produced three persons to the IO, that he does not remember the names of those three persons and that IO arrested the accused persons vide memos already Ex. PW-3/A, Ex. PW-3/B and Ex. PW-3/C bearing his signature at point A and conducted personal search of accused Janki Prasad Sharma and Devender Kaushik vide memos Ex. PW-3/F and Ex.PW-3/D. Ld. APP for the State was permitted to put leading question pertaining to the identity of accused persons and the attention of the witness was brought towards accused Janki Prasad and Devender Kaushik and the witness deposed that he does not recall the face of the accused persons due to lapse of time and that he does not remember the face of accused persons only due to fact that sufficient time has elapsed and there is no other reason.
6/21FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. During the cross examination conducted on behalf of accused persons, the witness deposed that he does not recollect the time when he reached at the spot. The witness denied the suggestion that he reached at the spot before 12 O Clock in the noon. The witness further deposed that IO received the information on wireless through control room PHQ. The witness denied the suggestion that no police official handed over any accused person to the IO at the spot and that all the documents were prepared and were seized by him at the PS.
10. PW-6 ASI Pratap that deposed that he does not remember the date when he joined the investigation of the present case, that complainant Ram Kumar came to PP Shanti Nagar PS Keshav Puram and informed ASI Baljeet Singh that one culprit namely Anand who had given fist blow to him on 18.12.2000 was present in the street, that he alongwith IO and complainant went to street no. 50, Lekhu Nagar Shanti Nagar, that the accused Anand who was standing in the street was pointed out of complainant, that the accused was arrested by IO on the pointing out of the complainant vide arrest memo Ex. PW-2/B and personal search memo Ex. PW-2/C bearing his signatures at point B. Ld. APP for the State was permited to ask a leading question to clarifiy the date when witness joined the investigation and the witness admitted that as per record he joined the investigation of this case on 11.01.2001.
During the cross examination the witness deposed that he never participated in the investigation of this case execept on 11.01.2001, that accused Anand Goel was identified by the complainant only, that complainant 7/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. informed to IO about the presence of accused in street no. 50, that he was present in one of the rooms situated in the PP Shanti Nagar and voluntarily stated that complainant had informed to IO in some other room situated in PP Shanti Nagar but not in his presence & that he had seen the complainant coming to PP Shanti Nagar and all of them left PP Shanti Nagar after about 5 minutes of the complainant coming to PP Shanti Nagar. The witness denied the suggestion that accused Anand Goel was not arrested by IO in his presence or that he put his signature on arrest memo and personal search memo in the police station.
11. PW-7 HC Jai Bhagwan No. 78 DAP, First Batallion deposed that on 18.12.2000 he received the information through telephone regarding fighting with one persons namely Ram Kumar in Gali NO. 20, Lekhu Nagar and the said information was recorded by him vide DD No. 5 dated 18.12.2000, that the original DD register containing the said DD entry has already been destroyed vide order dated 27.03.2006 issued on behalf of DCP/ North West and that the copy of the same order is marked as Mark A. PW-7 HC Jai Bhagwan further deposed that the attested copy of the said DD entry was in his handwriting and the same was duly attested by concerned ACP. The same is Ex. PW-7/A. The testimony of this witness have gone unrebutted as this witness was not cross examined despite opportunity.
12. PW-8 Retired ACP Sh. B.P.Paul deposed that in the year 2000, he was posted as ACP in Special Branch Office at PHQ, Delhi and he gave complaint 8/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. u/s 195 Cr.P.C before the Court of Ld. CMM against four persons namely Devender and other three persons whose names he does not remember, that the complaint was made by one ASI Ram Kumar who was posted in Special Cell, Lodhi Road, that on 18.12.2000 complainant was on duty in Lekhu Nagar in execution of sealing of factories in non-conforming areas and he was obstructed from discharging his official duties, that he perused the relevant documents i.e report and other documents on the basis of which he prepared a detailed report u/s 195 Cr.P.C which is exhibited as Ex. PW-8/A bearing his signature at point A. During the cross examination the witness deposed that complainant ASI Ram Kumar was deployed only to collect the reports regarding the sealing of factories in the area of Tri Nagar, that it was not duty of complainant ASI Ram Kumar to control the mob or any other person in case of any resistance in sealing of factories instead it was a job of local police only and voluntarily stated that ASI Ram Kumar was a police officer so he was supposed to intervene in case of any resistance, that he has no personal knowledge about the incident as he was not present at the spot at the time of the incident and his complaint Ex. PW-8/A is based on the records available in the office, that he first time saw the officials record regarding the incident dated 18.12.2000 and 22.06.2001 and voluntarily stated that ASI Ram Kumar was under administrative control of Special Branch and he was the administrative incharge of the Special Branch and that is why he made complaint Ex. PW-8/A. It is apparent from the aforesaid testimony that the complaint u/s 195 Cr.P.C has been duly proved.
9/21FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc.
13. PW-9 Sh. Kanwar Bhan Bansal S/o Late Sh. Hari Ram deposed that he was the owner of the factory which was being sealed by the order of Government in the year 2000, that factory was situated at premises no. 822/50, Lekhu Nagar, Tri Nagar, Delhi and that during the investigation he handed over the copy of GPA as documentary proof of ownership of the said factory. The photocopy of the same is Ex. PW-9/A. During the cross examination the witness deposed that he was present on 18.12.2000 in his factory when it was sealed, that all the articles were removed by him from the factory and thereafter the factory was sealed by the concerned staff and that no quarrel took place in his presence and the concerned staff left the spot in his presence.
14. PW-10 Mohd Qumare Azam Khan, Record Clerk identified the signature of Dr. Paramjeet Singh who prepared the MLC of Ram Kumar dated 18.12.2000. The MLC of injured Ram Kumar is Ex. PW-10/A bearing the signature of Dr. Paramjeet Singh at point A. The testimony of this witness have gone unrebutted as this witness was not cross examined despite opportunity.
15. PW-11 ASI Om Prakash deposed that on 18.12.2000 he was posted at PS Keshav Puram, that he was on duty with SHO to maintain law and order, that at about 2:30 p.m SHO received call through wireless set that a quarrel had taken place at 822/50, Lekhu Nagar, Tri Nagar and ASI Ram Kumar who was on duty with MCD officials has received injuries in the said quarrel, that 10/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. SHO directed him to take ASI Ram Kumar to hospital and he accordingly shifted him to Sunder Lal Jain Hospital where ASI Ram Kumar was medically examined.
During the cross examination the witness deposed that at the time of receipt of information, he alongwith SHO were present near Red Light Ashok Vihar, Tri Nagar, that they were on Government Vehicle, that he took the injured ASI Ram Kumar to hospital in a private vehicle which was already hired by the team of ASI Ram Kumar and again said that the vehicle was hired by MCD officials, that he remained at the spot for about 5 minutes and that ASI Ram Kumar was present outside the factory no. 822/50.
16. PW-12 SI Shanti Prakash deposed that on 20.03.2001 he was posted at PS Keshav Puram and further investigation of this case was handed over to him, that he collected the complaint u/s 195 Cr.P.C already Ex. PW-8/A from the offfice of ACP, Special Branch, Delhi, GPA already Ex. PW-9/A, GPA of Feroz Alam marked as Mark PW-12/A, agreement to sell marked as Mark PW-12/B, affidaivt marked as Mark PW-12/C and receipt marked as Mark PW-12/D. PW-12 SI Shanti Prakash further deposed that he recorded the statement of HC Om Prakash, Sh. Ravinder Nath AO, MCD, ASI Chander Pal, Constable Bansi Lal, Sh. Kanwar Bhan Bansal and supplementary statement of ASI Ram Kumar on 23.09.2001.
The testimony of this witness has gone unrebutted as this witness was not cross examined despite opportunity.
17. PW-13 Retired SI Baljeet S/o Late Sh. Ran Singh deposed that on 11/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. 18.12.2000 on receiving DD No. 5 B he alongwith Constable Vijender (Birender) went to the spot of the incident i.e Factory No. 822/50, Lekhu Nagar, Tri Nagar, Delhi where he saw several public persons who had gathered at the spot, that he came to know that sealing was going on in that area, that he also came to know that ASI Ram Kumar had been beaten by some persons and he had been taken to Sunder Lal Jain Hospital, that he instructed Constable Vijender to remain at the spot and he himself went to Sunder Lal Jain Hospital where he collected the MLC of ASI Ram Kumar, that he recorded statement of complainant ASI Ram Kumar which is already Ex. PW-2/A, that he prepared rukka Ex. PW-13/A bearing his signature at point A, that he returned back to the spot of incident where he met with ASI Chander Pal and Constable Bansi Lal who produced three accused persons namely Devender Kaushik, Janki Prasad and Mohd Amanullah who were involved in the incident, that he handed over the rukka to Constable Vijender for registration of the FIR who accordingly, went to the PS and got the FIR registered, that Constable Vijender returned back to the spot of the incident and handed over original rukka and copy of FIR to him, that he prepared site plan Ex. PW-13/B bearing his signature at point B, that he arrested the accused persons Devender Kaushik, Janki Prasad and Mohd Amanullah vide arrest memos already Ex. PW-3/C to Ex. PW-3/A respectively, that he personally searched accused persons vide personal search memos already Ex. PW-3/D to Ex. PW-3/F, that he recorded statement of the witnesses and that he released the accused persons on bail after furnishing of sound sureties.
PW-13 Retired SI Baljeet further deposed that on 25.12.2000, he 12/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. alongwith Complainant Ram Kumar went in the area in search of accused Anand but he was not found, that on 11.01.2001, he arrested accused Anand at instance of complainant ASI Ram Kumar on the arrest memo already exhibited as Ex. PW-2/B bearing his signature at point C & that he also personally searched the accused Anand vide personal search memo already Ex. PW-2/C bearing his signature at point C. PW-13 Retired SI Baljeet further deposed that thereafter he deposited the MLC of ASI Ram Kumar regarding the opinion with respect to nature of injury, that he recorded the statement of witnesses and prepared the challan and filed the same in the Court.
During the cross examination by Ld. Counsel for accused Devender the witness deposed that it took about 15 minutes to reach Sunder Lal Jain Hospital from the spot, that he stayed in the hospital for about 30-45 minutes, that when he reached on the spot for first time he found that a crowd had gathered there, that he left Constable Vijender (Bijender) on the spot because he was told that three acused persons were caught and one accused may flee from there and that when he returned from hosptial three accused persons namely Devender Kaushik, Amanullah and Janki Prasad were handed over to him. The witness denied the suggestion that the abovesaid accused persons were not handed over to him on the spot and that they were brought to PS by CRPF personnel later in the evening.
Ld. Counsel for accused persons namely Amanullah and Anand Goel adopted the cross examination conducted on behalf of accused Devender Kaushik for accused persons namely Amanullah and Anand Goel.
18. It is pertinent to mention that during the trial of the case accused Janki 13/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. Prasad was expired and proceedings were abated against him vide order dated 14.09.2012 passed by Ld. Predecessor Court in the present case.
19. Vide order dated 24.02.2015 passed by this Court, the prosecution evidence was closed after examination of all the material witnesses and matter was listed for recording of statement of accused persons.
20. On 25.02.2015, statement of accused persons was recorded and all the incriminating circumstances appearing in were put to the accused persons u/s 313 of code of criminal procedure in which the accused persons denied all the allegations made against them and stated that they are innocent and that they have been falsely implicated in this case. Accused persons did not choose to lead any defence evidence.
21. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued by Ld. Defence Counsel on behalf of accused persons that they are innocent and have been falsely implicated the accused persons in the present case and that nothing was recovered from the accused / or at his instance.
22. After the final arguments, Ld. APP for the State moved an oral application u/s 311 Cr.P.C for recalling the prosecution witnesses PW-2 and PW-3 for clarifying certain issues regarding the identity of the accused 14/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. persons which was dismissed by this Court as ample opportunity had already been granted to the prosecution during examination of these witnesses and Section 311 Cr.P.C can not be used for filling up the inherent lacunae in prosecution's case.
23. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
24. The case of the prosection is that the accused persons namely Devender Kaushik, Janki Prasad, Md. Amanullah and Anand Goel had obstructed the complainant Sh. Ram Kumar ASI Spl. Cell Lodhi Colony 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 during the sealing drive carried out in the Tri Nagr area. The aforesaid prosecution version indicates that in order to bring home the guilt of the accused persons, it is their identity as assailants which must be proved beyond reasonable doubt by the prosecution. Keeping in view of the aforesaid observation, perusal of the testimony of PW2 reveals that PW2 has deposed that many public persons had collected at the spot out of which 4-5 persons caught him and started beating him, that one of the person namely Anand Goel attacked with fist on his right eye and he started bleeding and after that he was removed to Sunder Lal Jain Hospital and that the names of accused persons was revealed as Devender Kaushik, Janki Prasad, Md. Amanullah and Anand Goel who are present in the court. In the examination in chief it is no where stated by PW-2 that the accused persons namely Devender Kaushik, Janki Prasad & Md.
15/21FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. Amanullah were the same persons who had caught and given beatings to him. In the cross examination the PW2 deposed that he told ASI Baljeet about the owner of the abovesaid factory and not about the other accused persons in his statement. PW2 again stated that he told the name of Anand Goel as owner of the aforesaid factory however it came to his knowledge later on that he was not the owner of the factory. The fact that PW-2 did not state to ASI Baljeet Singh anything about the accused persons namely Devender Kaushik, Janki Prasad & Md. Amanullah indicates that these accused persons had not assaulted the PW-2 otherwise the injured PW-2 must have disclosed about the invovlement of the said three accused persons also without telling their names. PW-3 deposed that many public persons had gathered at the spot on the instance of the owner of the factory and ASI Ram Kumar was beaten, that some other persons suceeded in running away and some were apprehended by them and that they suceeded in apprehending the persons namely Devender Kaushik, Janki Prasad, Md. Amanullah and Anand Goel at the spot who are present today in the Court. Perusal of examination in chief of PW-3 reveals that nothing has been stated by the said witness specifically about the involvement of the accused persons in beating the PW-2 ASI Ram Kumar for deterring him from discharging his duty. It is also not specified that the persons who were apprehended by them were the same persons who had beaten the PW-2 ASI Ram Kumar. It is also clear from the examination in chief of PW-3 that several persons had gathered on the spot and the accused persons were some of the persons who were apprehended. So, possibilty of the accused persons being a part of the crowd which usually gathers in such like situation as spectators can not be ruled out. In the cross examination 16/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. PW-3 deposed that the police party took about one to two hours in conducting the proceedings after the incident and till that time he alongwith the MCD Staff remained there. PW-3 further deposed that he saw ASI Ram Kumar being taken from the spot to the hospital but he does not remember as to who took the ASI Ram Kumar to the hospital i.e whether it was PCR or local police and that he was at a distance of about one to two feet away from ASI Ram Kumar. This part of the deposition creates a doubt upon the presence of PW-3 on the spot as failure to recall as to who took ASI Ram Kumar to the hospital despite the fact that PW-3 was present one to two feet away and had also seen PW-2 being taken away to the hospital, does not seem reasonable and gives an inference that PW-3 is deliberately giving such a reply as he was not present at the spot. PW-5 HC Vijender deposed that he alongwith the IO reached at the spot where public was found gathering and they came to know that the injured has been shifted to the Sunder Lal Jain Hospital. PW-5 further deposed that two police officials out of which one was Ct. Bansi Lal and other was of the Rank of ASI, produced three persons before the IO whose names he does not remember and that he does not recongnize the face of those persons due to lapse of time. During the examination in chief PW-5 pointed out towards Amanullah, one of the accused person standing in the Court as one of those three persons and deposed that he remembers the face of this person but he does not know his name. PW-5 failed to identify the accused persons namely Janki Prasad and Devender Kaushik despite the attention being drawn by the Ld. APP for the State towards those accused persons during the cross examination conducted by the Ld. APP for the State and deposed that he does not remember the face of the accused persons due to 17/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. lapse of time. It is apparent from the testimony of PW-5 that he is not an eye witness to the incident as the injured has already shifted to hospital when he reached the spot and that his testimony regarding the identity of the accused persons is not consistent. In the cross examination conducted by the Ld. Counsel for the accused, the PW-5 deposed that he did not recollect the time when he reached at the spot and that they reached at the spot just after the noon time. PW-5 further replied that they reached between 12 to 1:00 p.m. Perusal of testimony of PW-2 ASI Ram Kumar the injured and PW-7 HC Jai Bhagwan the DD Writer who recorded the DD No.5 at about 2:25 p.m on 18.12.2000 regarding quarrel with one person namely Ram Kumar reveals that the PW-2 had started the sealing of the factory on the spot at about 2:00 p.m and information regarding the quarrel was received at 2:25 p.m at the police station which shows that PW-5 HC Bijender and the IO must have reached the spot on receiving the information only after 2:00 p.m indicating that PW-5 is not telling the correct time of reaching the spot and is contradicting the version of injured. It shows that testimony of PW-5 can not be relied upon and creates doubt upon his presence on the spot. Perusal of testimony of PW-9 Kanwar Bhan Bansal owner of the factory situated at premises no.822/50, Lekhu Nagar, Tri Nagar, Delhi shows that he was present on 18.12.2000 in his factory when it was sealed and that no quarrel took place in his presence and that the concerned staff left the spot in his presence which shows that sealing drive was carried out but the alleged incident of beating the complainant did not take place. PW-13 IO SI Baljeet Singh deposed during his cross examination that when he reached at the spot for the first time he found a crowd gathered there, that he left Ct. Bijender at 18/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. the spot as he was told that three accused persons were caught and one accused was able to flee from there and that when he retruned from hospital three persons namely Devender Kaushik, Amanullaha and Janki Prasad were handed over to him. The aforesaid testimony shows that the IO had not seen the accused persons immediately after reaching the spot and that he was merely given information that accused persons were caught which indicates that the possibilty of the accused persons namely Devender Kaushik, Amanullaha and Janki Prasad having been caught afterwards and falsely implicated can not be ruled out.
25. In view of the afore-discussed omissions, discrepancies, inconsistencies and contradictions in the prosecution version, it is clear that the prosecution has failed to establish the identity of accused persons namely Davender Kaushik, Mohd Amanullaha and Janki Prasad (since deceased) as the offenders or assailants. However, the firm testimony of PW-9 that the sealing took place in his presence and the concerned staff left the spot in his presence and the testimony of PW-2 that accused Anand Goel one of the 4-5 persons who had gathered on the spot attacked him with his fist on his eye and that he told the name of the owner of the factory as Anand Goel though later on he came to know that he was not the owner of the factory, establishes that the sealing of the factories had taken place on the date of the incident on the spot and accused Anand Goel was present on the spot and further proves the factum of his indulging in scuffle with the sealing team squad thereby voluntarily obstructing them from discharging their public duty while acting in the capacity of such public servant as well as causing hurt to the public 19/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. servant with intention to deter that servant from discharging his duty without there being any grave and sudden provocation given by that public servant. Accordingly, accused persons namely Devender Kaushik & Amanullah are acquitted of the charge leveled against them and accused Anand Goel is held guilty for the offence punishable u/s 186, 332 & 353 IPC. Thus, accused Anand Goel is hereby convicted for the offence punishable u/s 186, 332 & 353 IPC.
At this stage, Ld. Counsel for the convict Anand Goel submits that he want to advance arguments on the point of sentence today itself.
Submission heard on the point of sentence.
Ld. defence counsel averred that the convict is an old man aged about 75 years and he is suffering from severe diabetic and Kidney problems for which he is regularly undergoing dialysis. It is further submitted that the convict belongs a respectable family and any harsh punishment would cause social death to his entire family comprising of wife, children and grand children. It is further submitted that convict has been diligently facing the ordeal of trial since the year 2000. It is further submitted that convict has no previous involvement in any other case. It is requested that the benefit of probation may kindly be granted to the convicts or in the alternative lenient view is prayed.
On the contrary, Ld. APP for the State has submitted that the convict has been held guilty and considering the same the present case is not fit for taking lenient view and it is argued that the convict be sentenced to maximum imprisonment.
This Court has heard the mitigating and aggravating circumstances on 20/21 FIR No. 471/00 PS Keshav Puram U/s 186/332/353/34 IPC State Vs Davender Kaushik etc. the point of sentence. The case has been spinning its wheels of justice since the year 2000. The mere fact that the convict is an old man suffering from various diseases do not wash off the culpability of the convict. This court has also considered the aspect of probation and admonition and is of the view that they are not fit in the facts and circumstances of the case.
Considering the rival submission, the record, the fact that convict is facing the trial since the year 2000 and that he is an old man suffering from various diseases as well as keeping in view that the present circumstances demand an opportunity be given to the convict for reformation, the convict is hereby sentenced to undergo simple imprisonment till rising of the Court and to pay fine of Rs. 5000/-. Fine paid.
Convict is hereby released after completion of imprisonment till rising of Court.
Copy of this order and judgment be given free of cost to the convict. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Case property, if any, be confiscated to State and be destroyed after expiry of period of appeal. File be consigned to the Record Room after due compliance.
File be consigned to record room.
Announced in the Open Court (VIPLAV DABAS)
today i.e on 27.02.2015 MM-04/NORTH WEST-04):DELHI
27.02.2015
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