Delhi District Court
Fir No. 342/09 State vs . Amresh Kumar Page 1 Of 13 on 11 July, 2011
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 26/10.
FIR No. 342/09.
P.S. Maurya Enclave.
U/S: 333/353/186 IPC.
STATE
Versus
Amresh Kumar,
S/o Sh. Hari Kishan Chaudhary,
R/o District Darbangha, Bihar
Also at:
E4041, Madi Pur JJ Colony,
Delhi.
Date of Institution : 05.04.2010.
Date of Argument : 26.05.2011.
Date of Judgment : 11.07.2011.
J U D G M E N T
1. Prosecution case is that on 14.07.2009, HC Islamuddin and Constable Sanjay Kumar were on traffic duty at red light Power House between 8.00 am to 9.00 pm. At about 11.30 am, a two wheeler scooter bearing No. DL5SC7370 driven by accused came. The pillion rider on the scooter was without helmet. HC Islamuddin got the scooter FIR No. 342/09 State Vs. Amresh Kumar Page 1 of 13 stopped and asked for driving license from the accused. Accused could not produce his driving license and was therefore challaned under Section 3/181 and 129/177 Motor Vehicle Act. Accused argued with HC Islamuddin that challan was unjustified. He then abused and gave a slap on the face of HC Islamuddin. HC Islamuddin tried to counsel him but he kept abusing. A call was made to PCR. ASI Vijender Singh came at the spot. HC Islamuddin was sent to BJRM Hospital with Constable Surender. The doctor gave the opinion that the injuries were grievous in nature. Statement of HC Islamuddin was recorded and case under Section 333/356/186 IPC was registered. Accused was arrested and on completion of investigation, charge sheet was prepared under Section 333/353/186 IPC and accused was sent to court for trial.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 186/333/353 IPC was framed against the accused to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 11 witnesses. PW1 is Constable Sanjay Kumar. He deposed that on 14.07.2009, he and HC Islamuddin were performing duty at Outer Ring Road, Pitam Pura Power House between 8.00 am to 9.00 pm and that at about 11.30 am, a two wheeler scooter bearing No. DL5SC7350 FIR No. 342/09 State Vs. Amresh Kumar Page 2 of 13 came on which, pillion rider was sitting without helmet. Accused was the driver of the scooter. He was asked to produce driving license but he could not produce the same and was therefore challaned under Section 3/181 & 129/177 M.V. Act. Accused then started abusing and stated that it would not be good and gave a slap on the right side of face of HC Islamuddin.
PW2 is HC Islamuddin. He is the complainant. He proved his statement Exbt. PW2/A. He stated that IO had prepared the site plan on his pointing out.
PW3 is HC Rishi Raj. He is the witness of investigation who assisted IO ASI Vijender Singh in the investigation of the case. He went at the spot with IO. He had taken the rukka to police station for the registration of the FIR.
PW4 is Constable Surender. He had taken HC Islamuddin to BJRM Hospital for examination.
PW5 is HC Usha Devi, Duty Officer. She proved the information regarding quarrel vide DD No. 14A Exbt. PW5/A. PW6 is HC Pawan Kumar. He had recorded the FIR Exbt. FIR No. 342/09 State Vs. Amresh Kumar Page 3 of 13 PW6/A. PW7 is Dr. Neeraj Chaudhary. He proved the medical examination report of injured HC Islamuddin as Exbt. PW7/A. PW8 is ACP Sh. Amrik Singh. He filed a complaint under Section 195 Cr. PC Exbt. PW8/A against accused before the court of ACMM, Rohini.
PW9 is HC G. Unnikrishanan from traffic circle. He produced the duty register of staff of traffic circle, Rohini of 14.07.2009, copy of which is Exbt. PW9/A. PW10 is HC Vijender Singh. He is the Investigating Officer of this case. During investigation, he went at the spot and sent the injured to BJRM Hospital through Constable Surender on his return from the hospital, he recorded the statement of HC Islamuddin, prepared the Tehrir Exbt. PW10/A and sent the same at police station through Constable Rishi Raj. Accused was then arrested. He had also prepared the site plan Exbt. PW10/B at the instance of HC Islamuddin. Accused was got medically examined from BJRM Hospital.
PW11 is Dr. Seema. She had conducted the medical FIR No. 342/09 State Vs. Amresh Kumar Page 4 of 13 examination of the accused. She proved the medical examination report Exbt. PW7/A. She stated that as per medical examination report, injuries were serious in nature.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that he is innocent. He stated that HC Islamuddin had demanded illegal gratification from him and on his refusal, he was given beatings by HC Islamuddin and other police officials.
5. In his defence, accused examined DW1 Sanjay. He stated that he was the pillion rider on the scooter of accused and that two traffic police officials had stopped their scooter and demanded license from accused. They also demanded bribe from him and on his refusal to pay the same, police officials abused him. He further deposed that he told them that he would dispose off the challan in court but at this, police officials told that in case he would speak, they would beat him. According to him, police officials had given beatings to the accused.
6. Arguments heard from the learned APP and the learned defence counsel. Prosecution has not examined any public witness of the incident. Both the alleged witnesses of incident are police officials. FIR No. 342/09 State Vs. Amresh Kumar Page 5 of 13 The pillion rider of the scooter of accused is also not examined by the prosecution. It is submitted that there are contradictions in the testimonies of police witnesses. It has come in the testimonies of the witnesses that the statement of complainant was recorded at the police station and all the papers were also prepared in the police station. It is stated that PW3 HC Rishi Raj has stated that statement of accused was also recorded but there is no such statement on record. It is also argued that the doctor, who gave the opinion regarding the nature of injuries, is not examined and there is also contradiction between the testimonies of PW7 and PW11 regarding the name of the doctor who has given the opinion regarding the nature of injuries. It is thus submitted that prosecution has failed to prove its case against the accused beyond doubt. The learned APP, on the other hand, argues that there is no reason to disbelieve the testimonies of police witnesses. It is submitted that the contradictions pointed out in the testimonies of witnesses are minor contradictions and therefore on that account, testimonies of the witnesses cannot be disbelieved. With regard to the doctor's opinion, it is argued that the doctor who gave the opinion has left the services of the hospital and therefore Dr. Neeraj Chaudhary and Dr. Seema have proved that the injuries were grievous in nature.
7. Injured HC Islamuddin and Constable Sanjay Kumar are FIR No. 342/09 State Vs. Amresh Kumar Page 6 of 13 the only two witnesses of occurrence. Admittedly, prosecution has not examined any public witness of occurrence. Pillion rider has also not been examined. SI Vijender Singh in cross examination has stated that pillion rider had run away from the spot. Thus, prosecution has explained the reason for not producing the pillion rider. In his testimony, HC Islamuddin has categorically deposed that he and Constable Sanjay Kumar were performing duty at red light Pitam Pura Power House and at about 11.30 am, accused came on scooter No. DL5C7370. One person was sitting on the pillion seat without helmet. Accused was stopped and was asked to produce his driving license. He did not produce the driving license and was therefore challaned. Signatures of accused were obtained on challan and the RC of his scooter was impounded. Upon this, accused started arguing with him and abused him and also gave a forceful slap on the right side of his face and ear due to which, he felt pain in his ear and faced the problem of hearing. The testimony of HC Islamuddin finds corroboration from the testimony of PW1 Constable Sanjay Kumar who has also deposed more or less similarly. The presence of HC Islamuddin and Constable Sanjay Kumar at the spot is also proved from the computerized copy of the Duty Register, which has been proved as Exbt. PW9/A. There is contradiction in the testimonies of witnesses as to the place of recording of statement of HC Islamuddin, in as much as, HC Islamuddin stated that he was sent to BJRM Hospital and after medical FIR No. 342/09 State Vs. Amresh Kumar Page 7 of 13 examination, he came at the police station where his statement Exbt. PW2/A was recorded by the IO but Constable Sanjay Kumar stated that the statement of HC Islamuddin was recorded at the spot before he was sent to hospital while SI Vijender Singh states that he had recorded the statement of HC Islamuddin at the spot after he came back from BJRM Hospital. Constable Surender (PW4) states that he had accompanied the IO to the spot but IO states that only Constable Rishi Raj accompanied him to the spot. HC Rishi Raj (PW3) has stated that the statement of accused was also recorded before he was brought to the police station but there is no such statement on record. On the basis of aforesaid contradictions and inconsistencies, it is argued that the testimonies of the witnesses are not trustworthy. It is a settled law that normal errors of memory due to lapse of time are always there however honest and truthful the witness may be. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, witnesses cannot be straightaway condemned and their evidence cannot be discarded in its entirety. None of the contradictions or discrepancies pointed out by the defence are with respect to any vital relevant aspect of the case and therefore cannot be given much importance. Both the witnesses of occurrence are police witnesses but there is no principle of law that without corroboration by independent witnesses, their testimonies cannot be relied upon. The presumption FIR No. 342/09 State Vs. Amresh Kumar Page 8 of 13 that a person acts honestly applies as much in favour of police personal as to other person and therefore the evidence of police officials cannot be discarded only because they are police officials. Their statements should be given the same weight as the statements made by other witnesses. In the present case, despite minor contradictions, HC Islamuddin and Constable Sanjay Kumar have withstood the test of cross examination. Their testimonies are straight forward and cogent and therefore I have no reason to disbelieve their testimonies.
8. Accused has taken the defence that he was stopped by HC Islamuddin who demanded illegal gratification from him and on refusal, he was given beatings by HC Islamuddin and other police officials. Thereafter, he was sent to hospital and was given treatment for the injuries. To prove this plea, accused relies on the testimony of DW1 Sanjay, who is stated to be the pillion rider as also on medical examination report of the accused. The learned defence counsel has argued that prosecution has failed to explain the injuries on the person of accused and therefore a doubt is created in the prosecution case and the defence of the accused appears to be more probable. The medical examination report of accused does not show any fresh injury on his person. It shows sudden onset of vomiting and diarrhoea. The accused was fully conscious and oriented. There is no history of accused having been beaten by the police. The medical examination FIR No. 342/09 State Vs. Amresh Kumar Page 9 of 13 report shows contusions and old scars on both legs. DW1 Sanjay had not reported the matter to any superior authority. He came to the court for the first time in the defence of the accused after more than two years of the occurrence. In such circumstances, it is difficult to believe the defence of the accused.
9. Accused has been charged for the offence under Section 186, 333 & 353 IPC. Section 186 IPC provides punishment for voluntarily obstructing any public servant in the discharge of his public functions. Computerized copy of the duty register proves that HC Islamuddin was a public servant and was acting in the discharge of his public functions. His duty as public servant was to challan the traffic offenders. It has come in his testimony that he had already challaned the accused for the violation of traffic rules. Thus, no obstruction was caused in the discharge of his public function. He was assaulted by the accused in consequence of challaning the accused which is punishable under Section 353 IPC. Since no obstruction was caused in the discharge of his public duty, offence under Section 186 IPC is not attracted in the present case. However, accused can be punished under Section 353 IPC for assaulting public servant in consequence of his having challaned the accused in discharge of his public duty.
10. Section 333 IPC provides punishment for causing grievous FIR No. 342/09 State Vs. Amresh Kumar Page 10 of 13 injuries. Grievous injuries is defined in Section 320 IPC and as per the said Section, following grounds of hurt only are designated as "grievous": First Emasculation Secondly Permanent privation of the sight of either eye. Thirdly Permanent privation of the hearing of either ear.
Fourthly Privation of any member or joint. Fifthly Destruction of permanent impairing of the powers of any member or joint. Sixthly Permanent disfiguration of the head or face. Seventhly Fracture or dislocation of a bone or tooth. Eighthly Any hurt which endangers life or which causes the
sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
11. The learned APP has argued that present case is covered by clause thirdly of Section 320 IPC i.e. permanent privation of hearing of either ear. In support of his submission, learned APP relies on the medical examination report Exbt. PW7/A. As per Exbt. PW7/A, there was no fresh external injury on the person of HC Islamuddin but there was loss of hearing and the injury has been opined as grievous in nature by Dr. Upender. HC Islamuddin has deposed that he felt pain in his ear and faced the problem in hearing. In cross examination, he stated that he resumed his duty on the same day after coming back from the police station. He does not say that he still faced problem in hearing. The medical examination report also does not indicate that FIR No. 342/09 State Vs. Amresh Kumar Page 11 of 13 there was any permanent privation of hearing of the ear. The doctor who gave the opinion has not been examined. Neither Dr. Neeraj Chaudhary nor Dr. Seema deposed that patient had suffered permanent privation of hearing of the ear and thus that being so, prosecution has failed to prove that HC Islamuddin had sustained grievous injuries. Section 332 IPC provides punishment for causing simple injuries to the public servant in consequence of anything done by that person in the lawful discharge of his duty as such public servant. It is proved from the testimony of HC Islamuddin that he was given slap by the accused which finds corroboration from the medical examination report which proves loss of hearing. Although no specific charge under Section 332 IPC has been framed, the same being a minor offence than Section 333 IPC, accused can be convicted under Section 332 IPC.
12. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty and convict him under Section 353 & 332 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 11.07.2011.
FIR No. 342/09 State Vs. Amresh Kumar Page 12 of 13
State Vs. Amresh Kumar.
FIR No. 342/09.
U/s. 333/353/186 IPC.
PS Maurya Enclave
11.07.2011.
Present: Additional PP for the State.
Accused in person with Sh. Aseem Bhardwaj, advocate. Vide separate judgment, accused is convicted under Section 353/332 IPC.
Arguments heard on the point of quantum of sentence. Vide separate order, convict be released on probation of two years on furnishing a bond of Rs. 20,000/ with surety of the like amount with directions to appear and receive the sentence when called upon during the aforesaid period of two years as the court may direct and in the meanwhile to keep peace and be of good behaviour. Copy of the judgment and order be given to convict free of cost. A copy of the order be also sent to the Probation Officer. File be consigned to Record Room.
(RAVINDER DUDEJA) ASJ/NW/ROHINI/DELHI.
FIR No. 342/09 State Vs. Amresh Kumar Page 13 of 13