Delhi District Court
Vinod Kumar vs The State Of Nct Of Delhi on 12 October, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0428442011
CA NO: 51/2011
FIR NO: 13/99
PS: DARYA GANJ
U/s 353/186/34IPC
IN THE MATTER OF
VINOD KUMAR
S/o Sh. Rajender Prasad
R/o Village Trikalpur,
Post Garawar, District Baliya, UP ......Appellant/Convict
vs
THE STATE OF NCT OF DELHI ......Respondent
CRIMINAL APPEAL U/s 374 Cr. P.C. AGAINST THE
JUDGMENT AND ORDER ON SENTENCE DATED
27.08.2011 & 29.08.2011 PASSED BY Ld. MM
Date of Institution : 16.09.2011
Date of hearing : 12.10.2011
Date of final order : 12.10.2011
ORDER
1. By this order I shall disposed off an appeal preferred by convict against the judgment of conviction and order on sentence dated 27.08.2011 and 29.08.2011 respectively whereby appellant was convicted to undergo SI of one year for commission of offence punishable U/s 353 r.w. 34 IPC.
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2. I have heard arguments of Ld. Counsel for appellant Sh. Ashutosh Shukla & Ld. APP Sh. G.S. Guraya for State. I have also perused the appeal file as well as TCR.
3. Brief facts necessary for disposal of this appeal are that on 05.01.99 Dinesh Kumar Gupta , Assistance Engineer working with DESU gave his statement Ex. PW 1/A of ASI Rameshwar Dayal to PS Darya Ganj to the effect that on that day at around 1:30 PM he alongwith his inspector Rajender Prasad Aggarwal and a private labourer Mohd. Asim had gone for repairing a faulty cable in front of Mahavir Vatika. At around 5:40 PM above inspector and labourer reached the above site and started digging work for repair . At that moment Convict Ganesh Tiwari alongwith 34 boys stated that they would not allow digging at that place because he is a MCD Parking Contractor there. Convict and others were told that it is Govt. Job and they should not be restrained to do the digging work. On this they started abusing and gave beatings to the inspector and the labourer. On this Page 2/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 3 statement FIR Ex. PW 2/A U/s 186/353/34 IPC was registered. Complainant was medically examined at J.P. N. Hospital . Site plan was prepared. Accused Shiv Ganesh Tiwari was arrested on 05.01.99 while co accused Vinod Kumar, appellant / convict herein was arrested on 03.02.99.
4. Upon conclusion of investigation charge sheet U/s 353/186/34IPC was filed. During the course of trial both the convict as well as co convicts were charged with only offence U/s 353/34 IPC .
5. To prove his case prosecution examined 5 witnesses in all including PW1 Dinesh Kr. Gupta and PW4 Rajender Prasad Aggarwal which was followed by recording of statement of convict U/s 313 Cr.P.C. After hearing both the sides the impugned judgment and order of sentence was passed.
6. While impugning the judgment and order on sentence the first plea taken by Ld. Counsel for appellant is that prosecution has failed to establish on record that complainant D.K. Gupta and other two employees were on duty as required by Section 353 Page 3/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 4 IPC.
7. In case titled " Aniruddha Bahal Vs. State" 2010 (1) JCC 302 Hon'ble Supreme Court emphasised three ingredients of Section 353 IPC .
Section 353 IPCAssault or use of criminal force to deter public servant from discharge of his duty
1. There must be assault or use of criminal force.
2. Such assault or use of criminal force must have been made on a public servant; and
3. 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.
8. Perusal of record in this regard reveals that no documentary proof qua receipt of any electricity complaint qua a faulty cable was received at Ansari Road Office or whether complainant and his employees had actually gone to the spot for the purpose of repairs. It is pointed out by Ld. APP that document Ex. PW 1/E is available on record in this regard. Perusal of this document dated Page 4/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 5 25.02.99 shows that it has been prepared after completion of investigation and preparation of charge sheet on 08.02.99. More over there is nothing on record to show that it was consciously made part of charge sheet when it was filed on 11.03.99. As per list of documents, the charge sheet consists of only 14 pages . As per order sheet dated 04.05.99 convict was also supplied only 14 pages. This makes it clear that document Ex. PW 1/E was not supplied to the accused at all. The IO completed the investigation & got prepared charge sheet dated 08.02.99 which was signed & filed by the then SHO. If the IO was desirous of doing further investigation , he ought to have done so only U/s 173 (8) Cr. P.C. There is nothing on record to show that any permission for such further investigation was ever taken. Even otherwise the text of said document does not even remotely show that office of complainant had received any complaint qua underground cable fault which could necessitate digging off earth as claimed. All that this document reveals is that complainant is Incharge of the Page 5/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 6 repairs in the Zone. Even if considered, this document does not satisfy the requirement of Section 353 IPC to show that complainant and his two workers were performing their duty at a particular place at a specified time.
9. Another plea taken by Ld. Counsel for appellant is that even though convict is reported to have beaten up the complainant and others, no MLC qua the same has been proved on record. The unproved plain paper medical examination categorically shows that complainant had suffered absolutely no external injury, there was not even any redness or tenderness anywhere.
10. It is also argued that even though as per witnesses a crowd of public persons had collected there, but no endeavour was made by the IO to join any public person.
11.Court is also apprised that the labourer PWMohd. Asim has not been examined by the prosecution and as such adverse inference Under Section 114 (g) Evidence Act deserves to be taken against the State.
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12. Record further reveals that even though as per deposition of PW 1 complainant D.K. Gupta that he had taken accused Shiv Ganesh to the PS but this fact is neither mentioned in his statement Ex. PW 1/A nor in the corresponding rukka or the FIR. Such has been the lackadaisical investigation that neither any arrest memo of appellant / convict Vinod Kumar is found on record nor same is found mentioning the list of documents. Record further reveals that despite the claimed arrest no disclosure statement of accused Vinod Kumar was recorded so as to ascertain the identity of his alleged accomplices .
13.Even though police had ample opportunity and sufficient time to visit the spot so as to search the remaining accused, co accused Vinod i.e. appellant / convict herien has been shown to be arrested after about a month of the claimed date of incident.
14.Prosecution has also failed to examine the IO of the case as a result of which not only the site plan but also arrest memos of both the accused remained totally unproved on record. As a result the Page 7/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 8 details of investigation steps taken too could not come on record.
15.A contradiction has been pointed in the deposition of complainant. In striking diversion from the charge sheeted PW1 deposed in the court that accused Shiv Ganesh obstruct his workers to do the work earlier in the day as well. Had this been a fact , complainant would have taken some legal step by reporting the matter to his seniors or seeking at least a causal police help so as to avoid any unpleasant situation.
16.In view of above discussion and close scrutiny of the judicial record prosecution has not established beyond shadow of doubt, the fact that any complaint qua any cable fault necessitating digging work was received at DESU office or that any incident of claimed assault ever took place, the basic ingredients of Section 353 IPC does not stand proved beyond shadow of doubt .
17.In case titled Partap Vs. State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
''The right of the accused to obtain the benefit of Page 8/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011 9 a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.''
18. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided."
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19.Convict is granted Benefit of doubt . The impugned judgment and order on sentence is hereby set aside. Convict is acquitted. His bail bond be deemed cancelled after 30 days. TCR be sent back with copy of order. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 12.10.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 10/10 of Appeal Shiv Ganesh Tiwari Vs. State dated 12.10.2011