Delhi District Court
State vs . Amar Singh on 25 August, 2015
IN THE COURT OF MS. ARCHANA BENIWAL
METROPOLITAN MAGISTRATE (SOUTHEAST) 08
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No. 32/2009
P.S. Amar Colony U/s 186/332/353 IPC STATE VS. Amar Singh a. Sl. No. of the case : 224/2/17.05.2014 b. Date of Institution : 06.11.2009 c. Date of Commission of Offence : 15.01.2009 d. Name of the complainant : Sh. Kuldeep Sharma e. Name of the accused and his : 1. Amar Singh s/o Sriram parentage and address R/o Mohalla Kanangodhra, Jalarbad, Shahranpur UP.
2. Mohd. Arif s/o Sh.
Mohd. Sharif R/o Jhuggi no. A250 Kalicharan, Camp Okhla Mandi, Sriniwaspuri, New Delhi f. Offence complained of : U/s 186/353/332/324/34 IPC g. Plea of the accused : Pleaded not guilty h. Order reserved : 21.08.2015 i. Final Order : Accused Amar Singh was convicted vide order dated 26.03.2015.
Accused Mohd. Ashif convicted.
FIR NO. 32/2009 PAGE 1 OF PAGE 15 PS Amar Colony j. Date of such order : 25.08.2015
Brief statement of reasons for decision of the case:
1. It is the case of the prosecution that on 15.01.2009, the complainant Sh. Kuldeep Sharma, working in MCD as MTI, Central Zone, Lajpat Nagar New Delhi, alongwith colleagues Sh. Vinod Kumar - Cattle Catcher, MTI Har Prakash and other labourer were on government vehicle for compliance of order of Hon'ble High Court (CWP3791/2000) for catching unattended cattle (wandering on the road) and when they were in the process of putting the said cattle inside their government vehicle, one Asif came running from the Dairy of Mohd. Sualin with a knife and inflicted injuries upon his person. Accused Asif with assistance of coaccused Amar got his cattle released from custody of complainant. Thereafter the complainant called at 100 number, police came to the spot and took the complainant to Trauma Centre. The matter was investigated into and site plan was prepared at the instance of complainant. During the investigation, accused persons were arrested. The accused were thereafter released on bail. The complainant was also medically examined at AIIMS hospital and his MLC no. 150144 was obtained according to which simple injuries had been caused to the complainant. After completing other formal investigation, the challan was presented before the court for trial u/s 186/332/353/324/34 IPC against both the accused persons.
2. Prima facie offence having been made out against both the FIR NO. 32/2009 PAGE 2 OF PAGE 15 PS Amar Colony accused persons, charge was framed against both the accused persons on 30.04.2012, U/s 186/332/353/ 332/324/34 IPC, to which they had pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined 13 witnesses.
4. The complainant Sh. Kuldeep Kumar Sharma/PW1 stated that on 15.09.2009, he was posted in MCD as MTI, Central Zone, Lajpat Nagar, New Delhi. On the day of incident the along with Sh. Harprakash and Vinod Kumar Cattle catcher and other cattle catcher staff had gone to catch any unattended cattle wandering on the road. At Okhla Subzi Mandi (Khatta) two unattended cows wandering on the road were caught and put inside the government vehicle. PW01 was sitting in front side of the truck. Accused Asif showed Knife like weapon to PW01 and asked him to take off the cows which was refused by PW01 upon which accused Asif attacked him with a knife like object on his chest. After that accused Asif called coaccused Amar and they forcefully took out the cows. Both the accused persons had tried to obstruct the public servants in discharge of their duties. A call was made to the police. Police came at the spot and took him to AIIMS. His MLC was conducted vide Ex.PW 1/A. Police recorded his statement Ex.PW 1/B. Site plan was prepared vide Ex.PW 1/C. Police arrested the accused persons Ex.PW 1/D1 and Ex.PW 1/D2 and conducted their personal search vide memo Ex.PW 1/E1 and Ex.PW 1/E2. Accused Asif produced the weapon used by him for injuring the public MCD official which was seized vide Memo Ex.PW 1/F. The FIR NO. 32/2009 PAGE 3 OF PAGE 15 PS Amar Colony witness identified the weapon of offence in the court which was used to injure him.
5. In his cross examination he has specifically stated that he never went to Jhuggi no. A 250.
6. PW 02 HC Naresh Kumar deposed that on 15.01.2009, he along with ASI Raj Kumar and Ct. Budh Ram had gone to the spot i.e. Gate of Okhla Mandi after the DD no. 7 was received by ASI Raj Kumar. When they reached the spot two MCD trucks bearing no. DL 1P 1574 and DL 1M 2748 and other MCD Staff members at the spot. Injured had already been taken to hospital by the PCR. When PW 01 returned from the hospital, ASI Raj Kumar prepared the site plan at the instance of injured/complainant. Thereafter they all went at A250 Jhuggi of Mohd. Sualin at Kalicharan Camp, Okhla Subzimandi. Both the accused persons were arrested and scissors were recovered at instance of accused Asif.
7. PW 02 was cross examined wherein he stated that they had gone to Jhuggi no. A250, Jhuggi after gathering information from the crowd, that the offenders worked for Mohd. Sualin.
Scissors were recovered from the accused Asif and same were seized by the IO. He further stated that there had been no prior altercation between Mohd. Sualin and MCD officials.
8. PW 03 Ct. Budhram deposed that on 15.01.2009 he along with HC Naresh went to hospital. IO obtained the MLC from the hospital. Then IO prepared the rukka upon which PW 03 FIR NO. 32/2009 PAGE 4 OF PAGE 15 PS Amar Colony got the FIR registered.
9. In his cross examination he deposed that when he reached the spot the accused persons were not present on the scene. The accused were arrested at the instance of injured Kuldeep from the Kalicharan Camp. He admitted that both the accused persons were already known to complainant Kuldeep. PW 03 had further deposed that IO recovered scissor type instrument from Kalicharan Camp garbage store from where accused Asif took out the weapon of offence. He denied the suggestion that accused persons were arrested and involved in the instant case at the behest of the injured.
10. PW 04 HC Har Prakash deposed that on 15.01.2009, he was on official duty along with the complainant. He further stated that accused Asif had caused injury to the complainant. In addition to it he stated that accused Amar Singh obstructed them and also took away the cows from the truck.
11. In his cross examination he deposed that on day of incident 16 MCD staff were present at the spot. Both the accused persons entered the truck and forcibly pulled the chain which was used to tie the cows and brought them down from the truck. He admitted that Mohd. Sualin had filed suit against the MCD and its senior officers. PW 04 has categorically stated that both the accused Amar and Asif were workers of Mohd. Sualin and that Kuldeep Sharma had told him that the accused Amar and Asif had caused injuries to him. However, the injuries were not caused to Kuldeep Sharma in his FIR NO. 32/2009 PAGE 5 OF PAGE 15 PS Amar Colony presence.
12. PW 05 Ramesh is the driver of the vehicle of Pashu Vibhag (MCD veterinary department) who had turned hostile and was cross examined by Ld. APP for the State. In his cross examination he deposed that on 15.01.2009 he was alongwith other members of MCD conducted raid to catch the cattle. He could not remember anything about the incident. He failed to identify the accused persons in the court and was confronted with his statement Mark X. This witness was not cross examined by the accused persons despite opportunity.
13.PW 06 Sh. SK Midha deposed that on 30.01.2009, on the basis of the statement of the witness and documents of this case, he had given his sanction for prosecution under section 195 Cr.PC vide sanction Ex.PW 6/A. In his cross examination he deposed that he had seen the permission of the deployment of the MCD Officials for the duty.
14.PW 07 Sh. Hari Prasad deposed that on 15.01.2009 he was along with complainant/ injured Kuldeep Singh. They had caught hold of two cows and uploaded in trucks bearing no. DL1A1574 and DL1N2748. In the meantime two persons came and one of them caused injury to Kuldeep Sharma. In addition to it both the persons forcefully released the cattle from the truck.
15. In his cross examination he deposed that he was on duty in the truck. He further deposed Mohd. Sualin had made FIR NO. 32/2009 PAGE 6 OF PAGE 15 PS Amar Colony numerous complaints against the MCD officials. He also stated that accused persons had deboarded the cattle from truck. Accused persons took away the cattle after objection by 14 MCD Officials.
16. PW 08 Dr. Ravindra Sharma deposed that on 15.01.2012 he had issued duty certificate Ex.PW 8/A of the MCD officials. He had also filed complaint Ex.PW 8/B regarding registration of FIR in the present case to SHO.
17. In his cross examination he has submitted that he had not participated in the raid. He also deposed that he had seen the accused Asif in the police picket. He admitted that Mohd. Sualin had lodged many cases against the MCD.
18. PW 09 Dr. Praveen Kumar, Senior Resident AIIMS deposed that on 15.01.2009 the complainant Kuldeep Sharma was brought with history of assault at about 10.15 am. The injury upon his person was 3cms x 0.5cms on his palm. His wound was stitched and dressed and he was given an injection after which he was discharged. This witness was not cross examined by the accused persons despite opportunity.
19. PW 10 ASI Raj Kumar has deposed in terms the prosecution version of the facts of this case. He has further deposed that the accused persons were apprehended from the dairy. Complainant had identified the accused upon which the accused were interrogated and the sharp instrument/ weapon of offence was recovered. He had prepared the rukka FIR NO. 32/2009 PAGE 7 OF PAGE 15 PS Amar Colony Ex.PW 9/A pursuant to arrest of the accused persons.
20. In his cross examination he deposed that accused persons viz., Amar Singh and Asif were not found at the spot when he reached. Around 1520 public persons were present near the spot. He admitted that he did not record statement of any public person and recorded statement of only MCD officials. Complainant Kuldeep identified the accused as Amar and Asif after reaching the spot. PW 10 arrested accused persons Amar and Asif from A250 Kali Charan Camp. He had reached at this address upon information from the persons present at the spot. PW 12 had identified both the accused persons. The case property was got recovered at the instance of accused Asif from nearby Khatta. No site plan was prepared of the spot from where the case property was recovered. PW 10 could not tell whether the case property was sealed when he had deposited it in the Malkhana.
21. PW 11 SI Ram Niwas deposed on 31.08.2009 investigation of the present case was marked to him, during which he obtained the report Ex.PW 8/A from MCD Office regarding the officials who were on official duty on the day of incident. He also got the opinion Ex.PW 11/A from the forensic expert regarding the injury as per the MLC. He was cross examined by the Ld. Counsel for the accused.
22. PW 12 Vinod Kumar deposed along the lines of story of prosecution witnesses. He deposed that Md. Asif had hit Kuldeep Sharma with some sharp object and the injured had FIR NO. 32/2009 PAGE 8 OF PAGE 15 PS Amar Colony tried to save himself by bringing his palm in front of his chest. Blood started oozing from the palm of Kuldeep Sharma after which the accused the offender ran away from the spot. He also identified the accused Amar Singh in the court but stated that accused Amar Singh had not done anything in his presence. He was cross examined by Ld. APP for the State, where in he deposed that Kuldeep Sharma had got injury on his palm when he tried to save himself from knife like object. He had given this information to his superior also.
23. He was cross examined by the Ld. Counsel for the defence wherein he stated that after the cows were put in the Government trucks, they were stopped by public person. He admitted that he had not shown the court order to any one before catching the cows but the cows had been lifted from public road.
24. PW 13 Dr. Arvind Kumar, Associate Professor, Forensic Medicine, LHMC deposed that on 25.09.2009, he had prepared the sketch the weapon of offence Ex.PW 11/A and had opined that the injuries mentioned in the MLC could have been caused by the said weapon. He was not cross examined by the accused despite opportunity.
25. Accused Amar Singh had pleaded guilty for the offence alleged against him and he was convicted vide orders dated 26.03.2015 for all the offences alleged against him.
26. Statement of accused Arif was recorded u/s 294 Cr.PC FIR NO. 32/2009 PAGE 9 OF PAGE 15 PS Amar Colony wherein he admitted the factum of registration of FIR no. 32/09 Ex.A1 and DD no. 7 and 11 both dated 15.01.2009 as Ex.A 02 and Ex.A 03, record pertaining to PCR call receiver at 100 number at PHQ Ex.A 04 in terms of section 294 Cr.PC.
27.After closing of prosecution evidence, statement of accused was recorded under section 281 read with section 313 Cr.P.C. In his statement, accused Mohd. Arif @ Mohd. Asif stated that he was innocent and had been falsely implicated by the police. He stated that he was collecting vegetable leaves from the vegetable market for the cattle and the police had only asked him to accompany them while they were taking away his cattle. He did not lead any defence evidence.
28.Final arguments were heard and it was submitted by the counsel for the accused that the prosecution has not been able to establish its case beyond reasonable doubt as there are discrepancies in the testimonies of the prosecution witnesses.
29.Record perused and evidence of the prosecution witnesses has been looked at carefully. The offences for which the accused has been charged are under section 186/332/353 IPC. For the offence under section 186 IPC, two ingredients have to be fulfilled.
(1) Voluntarily obstruction to a public servant, (2.) Such obstruction must be in the discharge of the public functions of such public servant.
FIR NO. 32/2009 PAGE 10 OF PAGE 15 PS Amar Colony
Section 186 IPC is applicable in every case where a public servant is obstructed in the discharge of public functions.
The section does not deal with obstruction of any public servant or of any person but with the obstruction of the proceeding conducted by a public servant.1 In various number of cases, it has been held that 'in the discharge of public functions' means legal or legitimately or authorized public persons. It must be shown that the obstruction/resistance was offered to a public servant in the discharge of his duties or public functions as authorized by law. The burden of proof is on the prosecution to prove that the accused obstructed public servant in discharge of his public function2. The gist of the offence, thus lies in the intention of the accused to interfere with or prevent the public servant's discharge of his official function. The obstruction may be in various ways. The question whether an offence under this section has, or has not been, committed must depend upon the peculiar facts and circumstances of the such case. The real question is whether the action or attitude of the persons alleged who have obstructed a public servant in the performance of his public functions was of such a nature so as to obstruct, that is to say, prevent him from carrying out the duties which he had to discharge.3
30.From the evidence of PW 08 and the certificate Ex.PW 8/A it stands clear that the injured was on duty for taking action 1 Provincial Government, Central Provinces & Berar vs. Bala Ram, AIR 1938 Nag 529 2 Jamanadas, AIR 1960 Sin 42 3 Nafur Sardar v. Emperor, AIR 1932 Cal 871 FIR NO. 32/2009 PAGE 11 OF PAGE 15 PS Amar Colony against stray cattle in pursuance to order of the Hon'ble High Court of Delhi in PIL titled as Common Cause Society versus Union of India and others CWP no. 3791/2000. Also the same has never been disputed by the Ld. Counsel for the accused at any stage including final arguments.
31.The accused has further been charged under sections 332 IPC and 353 IPC. Section 332 IPC deals with the offence of causing hurt to a public servant with a view to deter him from performing his duty as such public servant. It also states that the offence under this section can be committed not only when a person is assaulted while he is discharging his public duty but also when he is assaulted in consequence of discharge of his duty. To establish an offence under this section, the prosecution must prove that:
(a) The accused voluntarily caused hurt to a public servant; and
(b) The said public servant, at the time of being hurt, was discharging his duty as such public servant, or
(c) The hurt was caused with intent to prevent or deter that public servant or any public servant from discharging his duty as such public servant, or
(d) The hurt was caused in consequence of anything done, or attempted to be done, by that public servant in the lawful discharge of his duty as such public servant.
32. Section 353 IPC is also worded similarly but is a minor offence committed in similar circumstances without causing FIR NO. 32/2009 PAGE 12 OF PAGE 15 PS Amar Colony hurt or grievous hurt to a public servant but only assaulting him or using criminal force. The essential ingredients of the offence under this section are as follows:
(a) There must be assault or use of criminal force by the accused;
(b) The victim of the assault or use of criminal force must be a public servant; and
(c) The assault or use of criminal force must have a link with the discharge, by the public servant, of his public duty. It must be committed:
(a) While the public servant is engaged in the discharge of his duty so that he cannot proceed with it; or
(b) In order to prevent him from discharging his duty in future;
(c) In consequence of anything, done by him in the past in discharging or attempting to discharge his duty.
33. In the evidence of PW 1, he has stated that the accused Asif had assaulted him and caused him hurt because he had got caught the stray cattle which belonged to the diary where he was employed, whom he had caught in pursuance of order of the Hon'ble High Court of Delhi. Hence, as per the prosecution, the offences under section 332/353 IPC are made out as PW1 was assaulted and beaten up as a consequence of discharge of his public duty i.e. removal of the stray cattle from the road.
34. The evidence brought on record by the prosecution FIR NO. 32/2009 PAGE 13 OF PAGE 15 PS Amar Colony essentially states that the accused Asif obstructed him when he had caught two stray cows and put them in the government vehicle and also injured him with a knife like object when he refused to release the cattle and then ran away. Since there the order pursuant to which the MCD officials were catching the stray cattle has been brought on record, it stands established that PW 01 had acted in discharge of his public duties.
35. Almost all the witnesses produced by the prosecution have deposed before the court in clear terms that accused Asif had obstructed the MCD Officials including the injured in discharge of their public function. Further, the injured had also been assaulted by the accused Asif and also injured by him with sharp knife like object. Medical witnesses PW 09 and PW 13 have also confirmed the injuries sustained by the injured Kuldeep Sharma on the date of incident and the opinion with regard to the nature of injuries sustained by the injured. Both these witnesses have corroborated the version of the prosecution's case and they have not been cross examined by the defence counsel despite opportunity. Further, the weapon of offence was also recovered at the instance of accused Asif.
36. PW 01, PW 04, PW 07 and PW 12 have all testified in the court that the accused Asif had injured Kuldeep Sharma, MTI while he was discharging his official duty of capturing the stray cattle. Accused Asif had attacked him with a knife like object after which he fled from the scene. When he was FIR NO. 32/2009 PAGE 14 OF PAGE 15 PS Amar Colony apprehended, he also got the weapon of offence recovered. All the aforementioned witnesses have testified in clear and unambiguous terms that accused Asif had obstructed Kuldeep Sharma in discharge of his official duties and thereafter had injured him with a knife like object. Contradictions if any, are minor in nature. There is no reason to disbelieve the testimonies of either of these witnesses as it stands proved that Kuldeep Sharma had been injured on the date of the offence and they would not implicate an innocent person and shield the actual offender.
37.For the above stated reasons, the prosecution has been successful in establishing its case beyond reasonable doubtful that the accused Asif was present at the spot at the time of the incident, he had obstructed, assaulted and injured Kuldeep Sharma with a knife like object, who was discharging his official duty at the time of incident.
38. In view of the above discussion, accused Asif is hereby convicted for the offence punishable under Sections 186/332/353/324/34 IPC.
Announced in the open court (Archana Beniwal)
on 25.08.2015 Metropolitan Magistrate08,
South East, Saket, New Delhi
FIR NO. 32/2009 PAGE 15 OF PAGE 15
PS Amar Colony