Delhi District Court
State vs . Tej Bahadur on 4 May, 2012
IN THE COURT OF MS.SHEFALI SHARMA: METROPOLITAN
MAGISTRATE (NORTH-7) : DELHI.
State Vs. Tej Bahadur
FIR No.321/98
PS: Civil Lines
Unique Case ID No.R0059181999
JUDGMENT
(a) Sr. No. of the case 17.04.2012
(b) Date of offence 14.10.1998
(c) Complainant Ct. Baj Raj, 1020/N PS Civil Lines, Delhi
(d) Accused Tej Bahadur @ Raju, S/o Sh.Kapil Dev
Singh, R/o Gali behind C-3, Civil Lines,
Delhi
(e) Offence Under Section 186/353/332 IPC.
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 01.5.1999
(i) Date when judgment 30.4.2012
was reserved
(j) Date of judgment 04.5.2012
1. This judgment shall dispose off the case instituted by the police alleging offences under Section 186 of Indian Penal Code, 1860.
2. The allegations against the accused are that on 14.10.1998 at about 2.15 pm at Prem Road, Civil Lines, the accused obstructed Ct. Balraj, a public servant from discharging his public duty. Further, on the said date and time the accused while deterring Ct. Balraj from discharging his public duty used criminal force upon the Ct.Balraj, and caused injury. According to the prosecution, the accused thus committed offences State v. Tej Bahadur FIR No. 321/1998 Total Page 10 punishable under Section 186/353/332 of Indian Penal Code, 1860.
3. After compliance of Section 207 Code of Criminal Procedure, 1973. Charge was framed upon the accused for the offences under Sections 186/353/332 of Indian Penal Code on 06.8.2001, to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined as many as six witnesses. PW 1 Umed Parkash, testified that on given date 14.10.1998 at about 1:30pm he reached the bus stop Civil Lines to pick up his daughter. It is testified that the accused uttered bad words to his daughter. Thereafter, Ct. Balraj, officer arrived there and the witness told him about the incident. Thereafter, the witness along with Ct. Balraj went to the house of the accused and the Ct. Balraj asked the accused to accompany him to the police station. Accused started quarreling with the Ct. Balraj and abused him and tore his uniform on the left side's shoulder. It is further testified that the accused also injured the Ct. Balraj with a stone. Thereafter, local police arrived on the spot and IO recorded the statement on the spot. PW-1 also identified the case property which is the torn shirt from left side as Ex. P1.
5. PW 2 HC Balraj testified that on 14.10.1998 he was posted as Ct. at Civil Lines and on that day was on duty at police post at Majnoo ka Tila and at about 2:50 he reached the spot where he met the complainant Sh. Umed Prakash who informed him that the accused Tej Bahadur was harassing his wife and daughter. Thereafter, he along with the complainant went at the house of the accused. It is testified that when they reached the house of the accused he was abusing the wife and daughter of Umed Prakash, when he tried to stop the accused, the accused threatened him and upon asking to accompany to the police post State v. Tej Bahadur FIR No. 321/1998 Total Page 10 the accused caught his neck and tore off his uniform and also gave beatings and hit him with one stone. Thus, the accused obstructed him from performing his official duty. Thereafter, SI Vijay Chander, SHO, PS- Civil Lines and SI Mahender Singh reached at the spot and the said witness handed over the accused to them. The statement of the witness was recorded by SI Mahender Singh vide memo Ex PW 2/A. The witness PW-2 was also medically examined at Hindu Rao Hospital and the torn shirt was seized vide seizure memo Ex PW 2/B. The accused correctly identified the said case property which is Ex.P1.
6. PW3 HC Narender testified that on receipt of DD No. 20 regarding the incident, he along with SI Mahender Singh went at the spot where he met the the other police officials. The injured Ct. Balraj was reported to be taken to Hindu Rao Hospital. Thereafter, he went to the said hospital and collected the MLCs of the injured and thereafter, they both returned to the spot and IO prepared the rukka on the statement of Ct. Balraj which was handed over to him for getting FIR in the case registered. Accordingly, the said witness took the rukka and got the FIR 321/08 registered at PS- Civil Lines. After registration of the FIR he returned at the spot and handed over the copy of FIR and rukka to IO. IO seized the shirt and the uniform of Ct. Balraj and arrested the accused vide seizure memo Ex.PW 3/8.
7. PW 4 Insp. Maninder Singh testified on the lines of the testimony of PW-3. It is further testified that during investigation, he collected the result of the MLC which is marked as mark A and prepared the chargesheet. He correctly identified the accused, who was present in the court as well as case property Ex.P1.
11. PW 5 Ms.Geeta Rani testified on the similar lines as PW-3 and PW-4 and categorically stated that she lodged a complaint u/s 195 Cr.P.C.
State v. Tej Bahadur FIR No. 321/1998 Total Page 10 for taking action against the accused. The detailed report is exhibited as Ex PW-5/A bearing her signature at point A.
8. PW 6 Retd. SI Bhuwan Chander testified that on that day he was posted as duty officer from 4:pm to 12:00 mid-night. At around 5:35 pm he received a rukka from Ct. Narender Singh, sent by SI Mahender. Thereafter, he accordingly on the basis of the said rukka registered FIR bearing no. 321/08. The said FIR is Ex.PW 6/A bearing his signature at point A. The original endorsement on the rukka is exhibited as Ex.PW 6/B.
9. PW7 Sh.Dinesh Kumar, record clerk of Hindu Rao Hospital, who had brought the record of MLC no. 15221/98 dated 20.10.1998 pertaining of Ct. Balraj Singh testified that the original MLC had been prepared by Dr. Seema Goyal and opinion on the nature of injury as simple was given by Dr.G.B.S.Kohli. He testified that he was conversant with the handwriting of Dr. Seema Goel and identified the same since he had seen her signing and writing during her tenure in the hospital.
10. After conclusion of prosecution evidence, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence despite opportunity.
11. Final arguments heard. Record perused.
12. In the present case, the accused has been charged with the section 186/353 & 332 IPC.
State v. Tej Bahadur FIR No. 321/1998 Total Page 10 Section 186 IPC provides that:
"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.
13. It is held in "Thakur Prasad AIR 1936 Pat 104: (1936)37 Cri LJ 104 (Pat)". The obstruction which is punishable by this section may be by an act voluntarily done or omitted in order to hinder the public servant in executing his duty.
This section requires two essentials:-
1. Voluntary obstruction to a public servant.
2. Such obstruction must be in the discharge of public functions of such public servant.
14. It is held in "Lilla Singh (1894)22 Cal 286; Abdul Gafur (1896) 23 Cal 896; Himayat Ali (1904) PR No.10 of 1905: 2 Cri LJ 64; Jaswant Singh AIR 1925 Lah 139:25 Cri LJ 721", that:
"Public functions contemplated by this section mean legal or legitimately authorized public functions, and are not intended to cover any act, that a public functionary may choose to take upon himself to perform".
15. It is held in "Baroda Kanto Pramanick (1896) 1 CWN 77" that:
"it must be shown that the obstruction or resistance was offered to a public servant i n the discharge of his duties or public functions, as authorized by law. The mere fact of the public servant believing that he was acting in the discharge of his duties will not be sufficient to make resistance or obstruction to him amount to an offence".
16. It is held in "Shivdas Omkar (1912) 15 Bom LR 315: 14 Cri LJ 251; Kadarbhai(1927) 29 Bom LR 987: 51 Bom 896" that:
"the public servant's intentions may have been perfectly honest, but if in fact and in law the functions in the discharge of which he is State v. Tej Bahadur FIR No. 321/1998 Total Page 10 obstructed are not public functions, then no offence is committed. The functions will not be public functions if they fall wholly outside the jurisdiction or authority".
17. Section 353 IPC provides that:
"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".
18. Before this section applies, the following requirements must be satisfied:
(i) There must be assault or use of criminal force;
(ii) Such assault or use of criminal force must have been made on a public servant; and
(iii) It must have been on a public servant-
(a) while he was acting in the execution of his duty; or
(b) with intent to prevent or deter him from discharging his duty; or
(c) in consequence of anything done or attempted to be done by him in the discharge of duty.
19. In the present case the main prosecution witnesses are PW1 & PW2, however, there are material contradictions found in their testimony. PW1 testified in his examination in chief that when on the given date at about 1.30 pm he had gone to pick his daughter Hemlata from the bus stand bus stop Civil Lines, the accused uttered some bad words, whereas in his cross examination, he has stated that it was only when he reached his house he was informed about the alleged incident by his wife. Thus, it is not clear whether incident happened in the presence of PW1 or he deposed on hear-say as had came forth in his cross examination.
State v. Tej Bahadur FIR No. 321/1998 Total Page 10
20. Further, in the examination in chief of PW2, Balraj who is the complainant in the present case has testified that when he alongwith PW1 reached at the house of the accused he was abusing the wife and daughter of PW1, whereas, in his cross examination, it was brought forth that when he reached the house of the accused he was whitewashing alongwith his mother. It is highly improbable as testified by PW2 that a person sitting in his own house would at once abuse the wife and daughter of someone and even if so in the absence of the wife and daughter it cannot be said that he was trying to outrage, the modesty of woman.
21. Further, it is the main case of the prosecution that since the accused was harassing the wife and daughter of PW1 and when PW2 Balraj tried to stop in discharge of his alleged official duty, the accused against voluntary hurt to PW2. However, it is surprising that there is nothing on record to show whether any complaint of the alleged harassment had been filed by the wife or daughter of Umed Prakash against the accused. Most importantly, neither the wife nor the daughter of PW1 who were material witnesses in the present case have been made witness by the prosecution. The whole case of the prosecution is based on the testimony of PW1 & PW2 and as discussed above, there are material contradictions in their testimony.
22. Most importantly it was incombatant upon the prosecution to prove that public servant, PW2 Balraj was obstructed by the accused in discharging his official duty so as to attract the provisions of Section 186 and 353 IPC. However, it is settled law that the fact of the public servant believing that he was acting and discharging his official duty will not be sufficient to make resistance or obstruction to him an offence. The function will not be public function if they fall wholly outside the jurisdiction or authority of the said public servant as is discussed earlier.
State v. Tej Bahadur FIR No. 321/1998 Total Page 10
23. In the present case, there is nothing on record to show that upon the information of the alleged harassment received from PW1 Umed Prakash, the public servant PW2 made any DD entry in this regard while leaving the police station. There is nothing on record to show that any arrest warrant or search warrant was issued against the accused. There is nothing on record to show that under what capacity and authority PW2 entered the house of the accused and asked him to go to to the police station. It has been held in the case "Narain (1857) 7 NWP 209; Jagannath Mandhata (1897) 1 CWN 233: (1897) 24 Cal 324: Madho Sonar AIR 1915 All 442: (1915) 16 Cri LJ 589 (All); Sitaram Ahir AIR 1944 Pat 222: (1944) 45 Cri LJ 806 (Pat)" that:
"where the accused resisted a public officer who attempted to search a house, in the absence of a proper written order authorizing him to do so, he was held to have committed no offence under this section".
24. It is held in "Raimain Rai (1942) All 1914" that:
"where the accused caught hold of a Sub-Inspector's hand who wanted to remove his jhola by force, on the refusal of the accused to allow a search of his person, but he was thrown down and beaten by the Sub-Inspector, it was held that the conduct of the Sub-Inspector, who could not have arrested the accused without a warrant and who could not have searched the accused under any provision of law, was very high-handed and utterly without any justification in law and that the accused could not be convicted under this section".
25. It is held in "Deoman Shamji Patil AIR 1959 Bom 284: 1959 Cri LJ 825 (Bom)", that:
"the accused was behaving in a disorderly manner in a public street under the influence of drink. The Head Constable asked five or six constables to take the accused to the local dispensary for his examination by the medical officer. On the way, the accused refused to go any further, and gave a blow to a constable and another to the other constable and made good his escape. It was held that the police constables had no legal authority to require the accused to submit to medical examination.
State v. Tej Bahadur FIR No. 321/1998 Total Page 10 The accused could not be convicted under this section".
26. Infact, in the cross examination of PW2, he has himself admitted that he had not advised PW1 Umed Prakash to give a complaint in writing against the accused. Infact, he did not even make an attempt to verify the fact of the alleged harassment from the wife and daughter of Umed Prakash about the veracity of allegations levelled against the accused. Thus, in the light of law and aforesaid discussion, it can safely concluded that public servant did not have proper authority to go the house of the accused and to ask him to go the PS.
27. Further, no independent public witnesses have been produced on behalf of the prosecution. It is the case of the prosecution itself that PW1 & PW2 reached the house of the accused, his mother was also present. Further, it is heavily inhabitant area. It is highly improbable that at the given time when the accused allegedly tore off the uniform of the PW2 or hit him with the stone no public witness came at the scene nor the mother of the accused, who was present in the house. No neighbours or residents of the locality have been made a witness in the present case by the prosecution who could substantiate the testimony of PW1 & PW2. This further raises doubt on the story of the prosecution.
28. Further, in his cross examination, PW1 has categorically admitted that his relations with the accused were not cordial and there was already a personal enmity between them. Thus, the line of arguments taken by the counsel for accused that the accused has been falsely implicated with ill-motive does not seem to be improbable.
29. Thus, in view of the aforesaid discussion, it can be safely inferred that the prosecution has failed to prove the guilt of accused u/s 186/353 State v. Tej Bahadur FIR No. 321/1998 Total Page 10 IPC beyond reasonable doubt.
30. As regards offence u/s 332 IPC, the concerned doctor who had given the opinion about the injury in the MLC Ex.PW7/A viz. Dr. GBS Kohli has not been examined by the prosecution. There is only a record clerk who has produced the original MLC stating that doctor who has prepared the MLC i.e. Dr.Seema Goel has left the services of the hospital. There is not a single word about the doctor who had actually opined about the nature of the injury as so alleged. Further, not an iota of evidence has been produced by the prosecution to link the injury with the alleged act of the accused.
31. Accordingly, in the light of the aforesaid discussion, the prosecution has failed to prove the guilt of the accused even for the offence u/s 332 IPC.
32. In view of the above, accused is accordingly acquitted of the offences under Sections 186, 353 and 332 of Indian Penal Code in the present case.
Announced in the Open Court [SHEFALI SHARMA]
Today on 04.5.2012 MM-07 (NORTH)
DELHI
State v. Tej Bahadur FIR No. 321/1998 Total Page 10