Delhi District Court
State vs . Rakesh on 21 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-03, NORTH-EAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
Challan filed on: 05.04.2000
Final arguments heard on: 20.07.2023
Judgment announced on: 21.07.2023
F.I.R. No. : 204/1999
Police Station: Dilshad Garden
State Vs. Rakesh
U/S 186/332/353 IPC
(a) Case ID number/CR No. : 462042/2015
(b) Date of commission of the offence : 04.09.1999
(c) The name of the complainant : Ct. Hardeep Singh No. 1451/NE,
PS Dilshad Garden
(d) The name of the accused, parentage : Rakesh S/o Sh. Ranvir R/o D-45,
and residence gali No. 12, Jagatpuri Extension,
Delhi.
(e) The offence complained of : U/s 186/332/353 IPC
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Convicted for offence u/s
332 IPC and u/s. 353 IPC
IPC and acquitted of
offence u/s 186 IPC.
(h) The date of such order : 21.07.2023
(i) State represented by : Sh. Neeraj Yadav, Ld. APP for
State.
(j) Accused represented by : Sh. Manish Srivastava, Ld.
counsel for accused.
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 1 of 16
JUDGMENT
1. The accused Rakesh herein this case was put to trial to answer charges for the offence punishable under section 186/332/353 IPC.
2. Briefly stated, it is the case of the prosecution that on 03/04.09.1999 while the complainant/Ct. Hardeep was performing his duty at Durga Mandir, Jagatpuri Extension for crowd management on Janmashtami, he was assaulted by the accused when he was stopped from creating nuisance. It is the case of prosecution that accused had voluntarily abused, beaten and assaulted and used criminal force upon the complainant Ct. Hardeep a public servant in discharge of his official duty and the accused voluntarily caused simple hurt to the complainant. The FIR was registered on the complaint of complainant for the offence punishable under Section 186/332/353 IPC.
3. Upon completion of investigation, chargesheet under Section 173 of Cr.PC was filed on behalf of Investigating Officer and the accused was consequently summoned.
4. The accused was called upon to enter trial and after appearance, the copy of the relevant documents were furnished to the accused. Upon hearing both sides and on perusal of the case record, the charge was framed u/s 186/332/353 IPC was read over and explained to FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 2 of 16 the accused to which the accused pleaded not guilty and claimed to be tried.
5. Following documents were relied upon by prosecution and were exhibited during the trial:-
S.No. Document Exhibit No.
1. Copy of FIR PW1/A
2. Endorsement on rukka PW1/B
3. Arrest memo and personal search memo PW2/A & PW2/B
of accused
4. Seizure memo of Khakhi Shirt/uniform PW2/C
of Ct. Hardeep Singh
5. Statement of Ct. Hardeep Singh and PW3/A & PW3/B
endorsement on it.
6. Site plan PW3/C
7. Seizure memo of wooden phatta PW3/D
8. Seizure memo of shirt of accused PW3/E
9. Information of arrest of accused PW3/F
10. Report PW3/DA
11. Copy of DD No.27 PW5/A
12. DD No.47(B) PW5/B (OSR)
13. Statement of HC Hardeep Singh PW6/A
14. MLC No. 3608/99 PW6/DA and later as
Ex.A1
6. In support of the case, the prosecution has adduced eight witnesses. During admission/denial of documents, accused admitted MLC of complainant.
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 3 of 16
7. PROSECUTION EVIDENCE:
7.1 PW-1 ASI Narender deposed about registration of FIR on presentation of rukka by Ct. Harender sent by ASI Inderjeet.
7.2 PW-2 HC Harender deposed that on 04.09.1999, he alongwith ASI Inderjeet went to the spot on receiving DD no. 47B where HC Rajeshwar and HC Magender produced accused Rakesh and informed that injured had been shifted to GTB Hospital. He further deposed that he with IO and accused went to GTB Hospital where IO collected MLC of injured Ct. Hardeep and recorded his statement. He further deposed that on the rukka prepared by IO on statement given by Ct. Hardeep, he got FIR registered and came back to the spot. He further deposed that IO arrested the accused and conducted his personal search and thereafter seized the case property. He correctly identified the accused.
7.3 PW-3 ASI Inderjeet deposed that on 04.09.1999, he alongwith Ct. Harender went to the spot where HC Rajeshwar and HC Magender produced accused Rakesh and injured was stated to be shifted to GTB Hospital. He deposed that he obtained MLC of injured and recorded his statement and prepared rukka upon which Ct. Harender got the FIR registered. He deposed that after registration of FIR, he arrested the accused, prepared site plan, recovered case property and obtained complaints under Section 195 Cr.P.C.
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 4 of 16 7.4 PW-4 ASI Rajeshwar and PW-8 SI Magender deposed that on 04.09.1999 at about 12:30 a.m. they were at duty at the spot for Janmashtmi and at about 11:30 p.m. on 03.09.1999, accused obstructed them from performing their duties and at about 12:30 a.m, accused started altercation with Ct. Hardeep and had hit him with a fatta on his head due to which his turban fell down and on second blow, blood started flowing on the head. They deposed that they sent Ct. Hardeep to hospital and IO came at the spot and conducted investigation. The accused was correctly identified by the witness.
7.5 PW-5 HC Pawan Kumar brought DD register of 03.09.1999 containing DD No. 27 and 47B.
7.6 PW-6 HC Hardeep deposed that on 03-04.09.1999, he was on duty with HC Rajeshwar and HC Bhupender on Janmashtmi and at about 11:30 p.m., accused came there and started shouting when he was removed from the spot. He deposed that accused again came at the spot and started shouting and picked one fatta and hit him on his head and again when turban went off, he hit on his head. He deposed that the accused was apprehended by HC Rajeshwar and HC Bhupender and he was sent to GTB Hospital. He deposed that his statement was recorded by IO. He correctly identified the accused in the Court.
8. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC were recorded. The accused denied the allegations and pleaded innocence. He FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 5 of 16 did not chose to lead defence evidence. Thereafter, the court proceeded to hear the respective arguments of Ld. APP for State and Ld. counsel for accused.
9. I have heard the final arguments, have perused the record and have given thoughtful consideration to the same.
10. DECISION AND REASONS:
11. It is settled proposition of law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable and cogent evidence. The burden to prove any criminal trial remains on the prosecution throughout the trial and is never shifted on the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
12. At this stage, it is relevant to refer Section 186/332/353 IPC which are as follows:
Section 186 IPC: Obstructing public servant in discharge of public functions.- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punishable 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. FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 6 of 16 Section: 332 IPC: 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 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.
Section 353 IPC: 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 executing 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.
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 7 of 16
13. To prove the guilt of the accused persons for the offences, they are charged with in the present matter, it was incumbent upon the prosecution to prove the following facts:
(i) that the complainant was performing the public functions and accused obstructed complainant from discharging the public functions.
(ii) That accused voluntarily caused hurt/ assaulted/used criminal force to the complainant/public servant to deter him from discharging his public functions.
(iii) That accused had caused simple injury on the person of complainant.
14. At the outset, the argument of ld. Counsel for accused is that the Sanction under section 195 Criminal code of procedure has not been duly proved by the prosecution. It is mandated by Section 195 of Cr.P.C that no Court shall take cognizance of any offence punishable U/s 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is admitted position in the present matter that the complaint U/s 195 Cr.P.C has not been proved on record as the SHO Rajesh who had made the complaint U/s 195 Cr.P.C has not been examined as he had expired and no other witness was made to identify his signatures on the said complaint by the prosecution. Hence, the complaint U/s 195 Cr.P.C remained not proved. FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 8 of 16
15. It is argued by Ld. Counsel for the accused that once section 186 IPC goes, the prosecution would not sustain qua the offences u/s 332/353 IPC as well. However, it has been argued by Ld. APP for State that the failure to prove the complaint U/s 195 Cr.P.C could only vitiate trial in respect of offence punishable U/s 186 IPC, and it would not affect the trial in respect of offence U/s 332 & 353 IPC.
It is not the case that complaint u/s 195 CrPC was not filed in the present case and as such the judgment relied upon by the accused i.e. Gurinder Singh v State 1996 (2) CC Cases 396 (HC) would not be applicable in the facts of this case as in that specific case there was no complaint at all u/s 195 CrPC. The court finds itself in agreement with the submission of Ld. APP for State as it is settled that non filing of formal complaint under section 195 Cr.P.C will not vitiate proceeding in respect of offence under section 332 and 353 of IPC. Reliance in this regard is placed on the judgement of the Hon'ble Supreme Court in a three judges bench in a case titled "Durgacharan Naik And Ors vs State Of Orissa",1966 AIR 1775, wherein it was held:-
"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 Code is FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 9 of 16 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."
Thus, accused is entitled for acquittal for offence under section 186 IPC, as the formal complaint under section 195 Cr.P.C has not been proved on record.
16. As regards the other offences i.e. offence u/s 332/353 IPC, it was incumbent upon the prosecution to prove that the complainant was performing public duty and was deterred from so doing by the accused and that hurt was caused to him by the accused.
PW6 HC Hardeep Singh has in his testimony stated that he along with HC Rajeshwar and HC Bhupender Singh were on arrangement duty of crowd control on the occassion of Janmashtami at Jagatpuri extension temple. Testimony of PW6 in this regard has also been corroborated by testimonies of PW4 ASI Rajeshwar and PW-8 retd FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 10 of 16 SI Magender who have deposed along similar lines. There is nothing contradictory to that effect which has come forth in the testimonies of the prosecution witnesses. In my considered view, keeping in view the facts and circumstances of the case as well as the evidence that has come on record, there is no reason to disbelieve the testimonies of the concerned police officers, that they were on duty on the date and time of the incident. Further, it is pertinent to mention herein PW-5 HC Pawan Kumar brought DD register of 03.09.1999 containing DD No. 27 mentioning the fact about briefing and departure of complainant/PW-6 for duty at Mandir at Jagatpuri Extension. Therefore, the defence taken on behalf of the accused persons that there is no evidence to show that Ct. Hardeep (PW-6) were on duty on the date of this incident does not hold merit.
17. Now, the other ingredient that was required to be proved by the prosecution was that the accused had caused hurt upon the person of complainant/public servant and obstructed him in discharge of his duties.
18. The star witnesses of prosecution are the injured person/ PW-6 HC Hardeep and eye-witnesses PW-4 ASI Rajeshwar and PW-8 SI Magender. The testimonies of these witnesses have remained consistent qua the manner in which the incident had happened and the defence has not been able to shake the veracity of their statement or to impeach their credibility. The testimony of remaining witnesses have remained FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 11 of 16 consistent and there is no major discrepancy in the testimony of prosecution witnesses.
19. It is pointed out by Ld. Counsel for the accused that there are certain deficiencies in the investigation itself which are enough to dent the case of prosecution. It is argued that hurt is stated to have been caused by a fatta, however the seizure memo of the same i.e. PW-3/D does not have the signatures of the accused whereas the IO/PW-3 had stated that he had obtained the signatures on the same. It is further argued that the MLC Ex PW-6/DA has not been proved on record as the PW-9 had failed to identify signatures of Dr. Satish Mishra and Dr. Satish Mishra did not appear in witness box for the purpose of examination. It is further argued that FSL report relied upon by the prosecution does not mention that the blood on seized uniform and shirt of the accused was blood of human at first place and second that it was blood of complainant.
20. It is to be noted that in C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567: (2010) 3 SCC (Cri) 1402 it was observed by Hon'ble Supreme Court:
Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc, which resulted in defective investigation, there is a legal obligation on the part of the FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 12 of 16 court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded.
21. The argument put forth by the Ld. Counsel for accused is indeed impressive and it has to be observed that the prosecution has indeed failed to prove beyond reasonable doubt that blood on the seized uniform and shirt were that of the complainant only. However, at the same time it was not open for the accused to dispute the MLC of complainant as he has himself admitted the same u/s 294 CrPC. Further, to buttress his arguments, Ld. Counsel for accused had relied on MLC to argue that the complainant had stated in his MLC that he was beaten by FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 13 of 16 public and the PCR call made vide DD No. 47B i.e. Ex PW 5/B also mentions that there was a scuffle between police and public.
22. As the MLC was admitted by accused vide his statement u/s 294 CrPC, it is proved on record that the victim/complainant had sustained simple injuries. The only aspect that required examination is as to whether the prosecution has been able to prove that the injury has been caused by the accused or not. It is the defence of the accused that complainant was beaten by public and not by him, however no witness was examined by accused to substantiate the said defence. The accused rather relied upon the discrepancies in the testimonies of the witnesses.
23. The discrepancies in the testimonies of the prosecution witnesses pointed out by ld. Counsel for the accused persons are in my reasoned opinion, minor in nature and do not hit at the case of the prosecution. The Apex court in Yogesh Singh vs. Mahabeer Singh & Ors. [Criminal Appeal No. 1482 of 2013] observed that, "minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 14 of 16 version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness".
24. PW4 and PW6 have correctly identified the accused during their testimonies in court. All the material witnesses being the police officials/injured persons themselves, i.e. PW4, PW6 and PW8 have also been consistent in their testimonies with respect to the role of the accused in causing hurt to PW6/Ct Hardeep and/or obstructing him in discharging duty. In my reasoned opinion, there is no reason to disbelieve the testimonies of the concerned police officers which are found to be reliable and trustworthy.
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 15 of 16 Therefore, in light of the aforementioned, since Ct. Hardeep suffered 'hurt' due to act of accused Rakesh as a result of which he was also obstructed in discharging duties, there is no doubt that accused Rakesh stands guilty of offence committed under section 332 IPC and section 353 IPC.
CONCLUSION
25. Therefore, on the basis of overall discussions:
Accused Rakesh is convicted for offence u/s 332 IPC and u/s. 353 IPC IPC and acquitted of offence u/s 186 IPC. Digitally signed by NITISH NITISH Date:
Announced in the open court 2023.07.21
16:55:45
on 21.07.2023 +0530
(Nitish Kumar Sharma)
Metropolitan Magistrate-03,
North-East, Karkardooma Courts, Delhi
FIR No. 204/1999 State Vs. Rakesh PS: Dilshad Garden Page no. 16 of 16