Delhi District Court
State vs . Adhir on 3 January, 2023
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. : 95/11
PS: Gulabi Bagh
U/s 186/353/332/427/34 IPC
State vs. Adhir
CIS No. 290423/2016
Date of Institution of case: 25.05.2012
Date when Judgment reserved: Not reserved
Date on which Judgment pronounced: 03.01.2023
JUDGMENT
FIR No.: 95/11 PS: Gulabi A Serial No. of the case :
Bagh Date of the commission of b : 08.12.2011 the offence HC Sunil Kumar, Belt No. c Name of the Complainant :
1185/N Adhir S/o Sh. Hariom, R/o H. Name of Accused person & d : No. 10685/8, Andha Mugal his parentage and residence Pratap Nagar, Delhi.
U/s 186/353/332/427/34 Indian
e Offence complained of :
Penal Code
Plea of the Accused and his
f : Pleaded not guilty.
examination
Convicted u/s 186/353/332/34
Indian Penal Code and
g Final Order :
Acquitted u/s 427/34 Indian
Penal Code.
State Vs. Adhir
FIR No. 95/11
PS Gulabi Bagh
1/39
h Date of Order : 03.01.2023
BRIEF FACTS OF THE CASE:
1. Succinctly put, the case of the prosecution is that on 08.12.2011 at about 10.30 pm, in front of Gali No.8, Main Road, Pratap Nagar, Delhi, accused Adhir along with his associates (since convicted) in furtherance of their common intention voluntarily caused hurt and assaulted / used criminal force to deter complainant HC Sunil Kumar and obstructed him from discharging his public duty and also, committed mischief and caused loss and damage for amount of Rs.50/-.
Hence, the accused has committed an offences punishable u/s 186/353/332/427/34 Indian Penal Code (hereinafter called as IPC).
2. After the usual investigation, a supplementary charge sheet for the offences u/s 186/353/332/427/34 IPC was prepared against the accused Adhir. The aforementioned charge sheet was filed before the court on 25.05.2012 whereupon the cognizance of the offences was taken against the accused. The copy of the charge-sheet was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure,1973 (hereinafter called as Cr.P.C).
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 2/39
3. After hearing the arguments, charge u/s 186/353/332/427/34 IPC was framed against the accused on 03.08.2012 for the alleged commission of the offences u/s 186/353/332/427/34 IPC to which the accused pleaded not guilty and claimed trial.
PROSECUTION WITNESSES:
4. In support of its version, the prosecution has examined nine (09) witnesses.
5. PW-1 Nitin Kumar deposed in his examination-in-
chief that on 08.12.2011 at about 9.30 pm, he reached at E-68, Second Floor, Opposite Pillar No.108, Pratap Nagar, Delhi for delivering of the order no. 339. He parked his motorcycle bearing no. DL-65X-9594 in front of the said house and went to the aforesaid address. After delivering, the motorcycle was broken and could not get started. Thereafter, he came to the service road and called his office for help. Meanwhile, two boys came from behind, out of one caught hold of his neck and the second one stood in front of him and told him that (whatever he handed over to him i.e., jo bhi kuch hain mujhe de do). They pushed him on the ground as a result he suffered injuries on his head. One boy forcibly took out his domino's pizza's bill and cash of Rs.2867/- from his pocket and the second one took out his purse from the back pocket of his State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 3/39 pants. Accused along with the co-accused also took his mobile in his possession and both ran away from the spot. He also chased them by raising an alarm. One of the accused was hit by a passing car there and he fell down on the road and the second one ran in a gali. He apprehended the first accused and raised the alarm. At that time, two police personnel namely HC Sunil and Ct. Lokesh came to the spot and he handed over the custody of the accused to them who revealed his name as Rohit @ Machhi and also narrated the whole incident. At that time, three boys who were the friends of Rohit @ Machhi came there and started abusing police personnel and also started fighting with them. They had also torn the uniform of HC Sunil. Accused also broke down the vehicle of the police and accused persons tried to save the accused Rohit @ Machchi from the custody of police personnel. Some public persons also gathered at the spot. After seeing the mob, the accused persons ran away from the spot. Thereafter, other police personnel namely SI Akshay along with his staff came at the spot and took HC Sunil, accused Rohit @ Machchi and him to the Hindu Rao Hospital. After a medical examination, they all came back to the spot at about 3.45 pm. IO / SI Akshay recorded the statement of HC Sunil. Accused Rohit @ Machhi was arrested and he revealed the name of other accused persons including accused Adhir. PW-1 has correctly identified the accused.
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 4/39 During cross-examination of the witness by Ld. LAC for the accused, PW-1 stated that he admitted that the accused present in the Court is not the person who robbed him. He does not remember due to the lapse of time that the accused present in the Court came later on with other persons who had quarreled with the police officials. He cannot say that accused Adhir was not present at the spot when the alleged incident took place. He denied that he identified the accused during his examination-in-chief as he had seen the accused in the courtroom itself. He admitted that accused Adhir was not arrested or apprehended in his presence. He denied that the accused had been falsely implicated. He denied that he is deposing falsely at the instance of the IO.
6. PW-2 HC Bhim Singh deposed his examination-in-
chief on 09.12.2011, he was posted as MHC(M) in PS Gulabi Bagh. On that day, IO SI Sukhdev Singh had deposited one sealed pulanda duly sealed with the seal of SS in Malkhana along with the copy of seizure memo, he made entry in the register No. 19 at serial No. 936. The copy of the same is Ex. PW2/A. On the same day, IO had deposited a blood sample with sample seal in malkhana duly sealed with seal of HRH. He made an entry in this regard in the register in the register No. 19 at serial No. 936. Copy of the same is Ex. PW1/B(OSR). An opportunity for cross-examination of the State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 5/39 witness given to the accused, however the same is not availed.
7. PW-3 HC Sunil Kumar in his examination-in-chief has deposed that on 08.12.2011, he was posted as Head Constable at PS Gulabi Bagh. On that day, at about 10.30 pm, he alongwith Ct. Lokesh was present at the Police Booth near gali No. 8 Pratap Nagar. Meanwhile, they heard a noise (Chor-chor Pakdo-Pakdo) coming from the Gali no. 8. When they reached there, they found that one boy who revealed his name as Nitin had apprehended one another boy. The said boy Nitin told them that the accused along with his co-accused had robbed him. The apprehended boy revealed his name as Rohit @ Machhi who was the BC of the area. When they were interrogating him, three other boys namely, Adhir, Sonu and Rahul came there and started abusing them. They also tried to rescue the accused Rohit @ Macchi. The accused Rahul got hold of his shirt and tore it. The other accused also started fighting with him and Ct. Lokesh and also pelted stones on them. He knew all the accused earlier as he was the beat officer of the area. Meanwhile, some more people from the locality of the accused persons came to the spot and started pelting stones on them. They also damaged his bike. Someone called the PCR and some police personnel along with SI Akshay came to the spot. All the accused except Rohit State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 6/39 @ Machhi ran away from the spot as there was a huge crowd. SI Akshay sent him and Nitin to the Hindu Rao Hospital. After the medical examination, they came back to the spot. SI Akshay recorded his statement in which is Mark A bears his signatures at point A. SI Sukhdev Singh also came to the spot. At his instance, he prepared the site plan Mark A1. He had handed over his uniform to SI Sukhdev Singh which was kept in a white piece of cloth and sealed it with the seal of SS. The seizure memo is Mark A3 bears his signatures at point A. Seal after use was handed over to Ct. Damodar. The photographs of his bike were also taken. PW-3 correctly identified the accused. (Court observation: The accused Rohit @ Macchi, Sonu and Rahul have already been convicted on their plea of guilt).
MHC(M) has produced one pulinda duly sealed with the seal of SS. Seal was broken and the pullanda was opened. It was found containing one police uniform having Pheets i.e. Head Constable's Pheet, name plate bearing name Sunit Kumar Head constable, the shoulder badge of the left side in torn condition, the pocket of the right side of the uniform also in torn condition. The uniform was shown to the witness, who correctly identified the same. The uniform is Ex. P1. Ms. Z. N. Loon, Assistant Ahlmad, JJB, First kingsway Camp, Delhi brought file pertaining FIR no. 95/11, PS Gulabi Bagh, U/s State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 7/39 186/353/332/427/34 IPC, State Vs. Sonu in which original documents are listed in the report u/s 173 Cr.P.C. compared with the photocopies/documents with the report u/s 173 Cr.P.C of the present case compared which are the photocopies of the originals. His complaint is Ex. PW3/A bearing his signature at point A on the basis of which IO prepared rukka and FIR Ex. PW5/A was registered. Site plan is Ex.PW3/B. Seizure memo of uniform is Ex. PW3/C signed by him at point A. An opportunity for cross-examination of the witness given to the accused, however the same is not availed.
8. PW-4 Ct. Damodar in her examination-in-chief has deposed that on 08.12.2011, he was posted as Const. at P.S. Gulabi Bagh. On that day, on receiving of DD No. 27-A dated 08.12.2011 (Mark-D1), he along with SI Akshay reached at the spot i.e in front of H.No. 10689, Gali No. 8, Shani Bazar Road, Pratap Nagar, Delhi where they met HC Sunil, Ct. Lokesh and complainant Nitin, who produced accused Rohit @ Machchi. Complainant Nitin Kumar told SI Akshay that accused Rohit @ Machchi and his friends have robbed him. HC Sunil Kumar produced Rs.2867/- and some Pizza bills to IO which was recovered from the possession of accused Rohit @ Machhi. Motorcycle bearing No. DL-1ST-6867 belonging to HC Sunil Kumar was lying in broken condition at the spot State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 8/39 and glasses of some vehicles parked at the spot were also in broken condition. HC Sunil Kumar, Nitin and Rohit @ Machchi were in injured condition. After deploying the Ct. Lokesh at the spot. He along with SI Akshay recorded the statement of HC Sunil Kumar and Nitin. At about 2.35 am, SI Akshay prepared a rukka and sent it to the PS for registration of FIR through him. After registration of FIR, he came back to the spot along with SI Sukhdev to whom the investigation of the present case was assigned. They went to the spot. He further deposed that on 14.12.2011, he along with HC Prakash and IO / SI Sukhdev Singh were searching you and Rahul and in the meantime, they met with secret informer who informed them that accused Rahul was standing at Road No.40, near Gali No.8, Andha Mughal, Accordingly, they went there at about 11.40 am and at the instance of secret informer accused Rahul was arrested from the Gali No.8, in front of Mandir, Andha Mughal. Accused Rahul was interrogated and he confessed his involvement in the present case. At about 12.50 pm, accused Rahul was arrested and his disclosure statement was recorded.
During his cross examination by the Ld. LAC for the accused, the witness stated that he admitted that accused Adhir was not arrested in his presence. He admitted that accused Adhir was not present at the spot when they reached State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 9/39 there. He denied the suggestion that he is deposing falsely at the instance of the IO.
9. PW-5 HC Kaptan Singh in his examination-in-chief has deposed that on 08.12.2011, at about 3.10 am, Ct. Damodar produced one tehrir before him which was sent by SI Akshay Kumar. On the basis of which, he recorded the FIR No. 95/11 and computerized a copy of the same Ex.PW5/A. He had also made an endorsement on rukka Ex.PW5/B. An opportunity for cross-examination of the witness given to the accused, however the same is not availed.
10. PW-6 Ct. Lokesh in his examination-in-chief has deposed that on 08.12.2011, he along with HC Sunil were on patrolling duty in the area of beat no. 2 and when he reached near the Police Booth, gali no. 8, Pratap Nagar at about 10.30 pm, during meantime, they heard the noise "pakro pakro chor chor". On listening, they had turned towards gali no. 8 and see that one person had apprehended another person. They reached there, and during interrogation, the person who apprehended had disclosed his name Nitin Kumar and he had apprehended one person who disclosed his name Rohit @ Machi. Nitin had handed over accused Rohit to them. Nitin had informed that accused Rohit alongwith his other associates had caught hold of him by his neck and had taken Rs. 2867/-, Pizza Bill and the associate of accused had robbed State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 10/39 his mobile phone and purse and ran away from there. Complainant had informed that he had apprehended accused Rohit by chasing him. The above said Rs. 2867/- and pizza bill has been recovered from the possession of accused Rohit. Accused Rohit was taken into custody and he was interrogated by HC Sunil. Meanwhile, 3-4 associates of accused Rohit namely Rahul, Adhir and Sonu (brother of Rohit) reached there and they were trying to free accused Rohit from custody and they had started giving threats to them to set free accused Rohit otherwise face consequences. Accused Rahul had pushed HC Sunil and had torn his uniform. Thereafter, Rohit had also been involved in the said incident and tried to get free himself. When they did not succeed to free accused Rohit, they started stone pelting upon them. They had also thrown stones on other private vehicles parked on the spot. They had also damaged the motorcycle of HC Sunil and had broken the dikki of his motorcycle. On this the public persons started gathering there and by taking the advantage of public gathering, the above said three persons had succeeded to run away from the spot. Some public persons had made a call at 100 number and after some time, a PCR van had reached there. SI Akshay Kumar and Ct. Damodar from PS Gulabi Bagh were also reached there. Nitin, HC Sunil and accused Rohit @ Machi were taken to the hospital for medical examination. He remained present on State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 11/39 the spot. After medical examination they returned back on the spot at 3.45AM. IO recorded the statement of HC Sunil and prepared rukka and handed over the same to him for registration of FIR. Site plan was also prepared at the instance of HC Sunil. The private vehicles which were damaged in the said incident have been removed by their owners from the spot. The photographs of the motorcycle of HC Sunil were taken. Accused Rohit was arrested and he was taken to PS Gulabi Bagh. IO prepared pullanda of torn shirt of HC Sunil and sealed with the seal of SS. The torn uniform of HC Sunil was taken into possession through seizure memo already Ex. PW3/C. SI Sukhdev alongwith Ct. Damodar came to the spot. SI Akshay handed over the blood sample and seizure memo to the IO. IO also got photographs of the spot. Witness was shown the photographs from the Court file which was called from the JJB. The photographs shown to him are of the motorcycle of HC Sunil. The photographs are Ex. P-2.
During his cross examination by the Ld. LAC for the accused, the witness has deposed that public persons were present at the spot when the alleged incident had taken place. He denied that he had not seen accused Adhir at the spot on that day. No public person was asked to join the proceedings on that day at the spot. He denied that the accused was not present at the spot. He denied that the accused had not done State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 12/39 any act as alleged by him against him. The accused was not apprehended in his presence on the spot. He knew the accused prior to the incident. Voluntarily, he deposed that the accused was the BC of the area. He denied the suggestion that the accused had been falsely implicated as there were various criminal cases pending against him in the same PS and that he was deposing falsely.
11. PW-7 HC Prakash Chand in his examination-in-chief has deposed that on 08.12.2011, he was posted as Duty Officer from 4.00 pm to 12.00 am. He had received a rukka from HC Sukhpal at about 8.15 a.m. On that day, he received a PCR call at 10.57 pm regarding a quarrel at H. No. 10689, Gali No.8, Shani Bazar Road, Pratap Nagar, Delhi. Same was registered in daily diary register vide DD No. 27A dated 08.12.2011 and was handed over to SI Akshay Kumar alongwith Ct. Damodar for further action which is Mark D-1. At about 11.00 pm, he received a PCR call regarding quarrel and bullet firing at near Gulabi Bagh Police Station. Same was registered in daily diary register vide DD NO. 29A dated 08.12.2011 and the same was informed to SI Akshay Kumar via telephone for further action, the same is Ex.PW7/A. At about 11.03 pm, he received a PCR call regarding public persons throwing stones on police persons at Gali no.10, Andha Mughal, Pratap Nagar, Delhi. Same was registered in State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 13/39 daily diary register vide DD No. 30A dated 08.12.2011 and same was informed to SI Akshay Kumar via telephone for further action, same exhibited as Ex.PW7/B. At about 11.05 pm, he received a PCR call regarding bullet firing at Gali No.6 J Block, Arya Samaj Mandir, Pratap Nagar, Delhi. Same was registered in daily diary register vide DD No.31A dated 08.12.2011 and same was informed to SI Akshay Kumar via telephone for further actions, same exhibited as Ex.PW7/C. On 14.12.2011, he was posted as HC at PS Gulabi Bagh and he was on patrolling duty. At about 12.40 pm, SI Sukhdev Singh came to Gali no.10, Andha Mughal, Delhi and informed him that he received secret information regarding accused Rahul. He alongwith Ct. Damodar and SI Sukhdev Singh left for Gali No.8, Road No.40, Andah Mughal, as per information given by a secret informer. Secret informer pointed out towards accused Rahul. Thereafter, accused Rahul was apprehended by them. Accused Rahul made a disclosure that on 08.12.2011 at about 10.00 pm at Gali no.8, Anadha Mughal, he along with Rohit @ Machchi, Sonu and accused was involved in quarrel with police persons. On 02.04.2012, IO arrested the accused from outside Gali No.8, Andha Mughal Pratap Nagar in his presence vide memo Ex.PW7/C. Accused was personally searched vide memo Ex.PW7/D During his cross examination by the Ld. LAC for the State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 14/39 accused, the witness deposed that he knew the accused as he was BC of the area. He denied the suggestion that he was deposing falsely.
12. PW-8 Retired SI Sukhdev Singh in his examination- in-chief has deposed that on 09.12.2011, he was posted as SI at PS Gulabi Bagh. On that day, investigation of the present was marked to him. After receiving the he alongwith Ct. Damodar reached at the spot i.e., outside gali No. 8, Andha Mugal, Pratap Nagar. SI Akshay Kumar was present at the spot. HC Sunil, Ct. Lokesh alongwith persons namely Nitin and Rohit. Nitin was the complainant in case FIR No. 94/11 and Rohit was accused in the same case. Thereafter, SI Akshay Kumar had handed over the original tehrir, blood sample with sample seal and had briefed regarding the incident of the present case. Thereafter, he took the photographs of the government motorcycle lying at the spot. He also prepared the site plan of the spot Ex. PW-3/B. Thereafter he arrested accused Rohit vide memo Ex. PW-8/A. He also conducted the personal search of accused Rohit vide memo Ex. PW-8/B. Thereafter, he also arrested the accused Sonu and Rahul vide memo Ex. PW-8/C & Ex. PW-8/D. He also conducted their personal search vide memo Ex. PW-8/E & Ex. PW-8/F. Thereafter, he recorded the disclosure statement of accused Rohit, Sonu and Rahul vide memo Ex.
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 15/39 PW-8/G, Ex. PW-8/H & Ex. PW-8/I. He had also prepared the seizure memo of blood sample and sample seal vide memo Ex. PW-8/J. He also seized the uniform of HC Sunil Kumar vide memo Ex. PW-8/K. He also obtained the permission from Sr. official under Section 195 CrP.C. He recorded the statement of witnesses and prepared the challan. On 02.04.2012, during the investigation of this case, he met HC Prakash who took him at Gali no. 8, road no. 40, Gali Nukkad where accused was apprehended at the instance of HC. Thereafter, he arrested him vide memo Ex. PW-7/C. He also conducted personal search of accused vide memo Ex. PW- 7/D. Thereafter, he recorded disclosure statement of accused vide memo Ex. PW-8/L. He got permission under Section 195 Cr.P.C from Sr. officials. He prepared the supplementary challan. He has correctly identified the accused. He has also correctly identified the photograph of the motorcycle from the court file which is Ex.P-2.
During his cross examination by the Ld. LAC for the accused, the witness stated that there was no public person present at the spot when he reached the spot. There were no persons present other than the above said five persons i.e., Nitin, Akshay Kumar, Sunil Kumar, Lokesh Kumar and Rohit. He had not investigated whether there were any CCTV cameras installed in that area or not. He had also not made State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 16/39 any local investigation regarding the matter of the present case on the next day. He admitted that accused Adhir was not present at the spot when he reached there. He denied that accused Adhir was not present at the time of incident also. He denied the suggestion that accused Adhir was falsely implicated in the present case. He admitted that accused Adhir was previously known to him as he was the division officer of the area where accused Adhir had the residence and he was BC at that time. He denied the suggestion that due to this reason, he was falsely implicated in the present case. He admitted that there is no evidence against the accused Adhir except the disclosure statements of co-accused. Again said, there was a statement from the complainant also. He denied the suggestion that no disclosure statement was ever made by the accused Adhir as alleged. He denied the suggestion that all the writing work in the present case was done by him while sitting at the PS. He further denied the suggestion that he had never visited the spot for the investigation of the present case and that he was deposing falsely.
13. PW-9 SI Akshay in his examination-in-chief deposed that on 08.12.2011, he was posted as SI at PS Gulabi Bagh. On that day, he was on emergency duty from 08:00 pm, to 08:00 am. At about 11:00 p.m., after receiving PCR call regarding quarrel and stone pelting, he alongwith Ct.
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 17/39 Damodar reached at Gali no. 8, Pratap Nagar, there he met with HC Sunil Kumar, Ct. Lokesh Kumar, Rohit @ Machchi and Nitin who was complainant of FIR No. 94/11. The motorcycle of HC Sunil Kumar was seen in damaged condition on the spot. The glasses / windshields of the vehicles on the spot were also damaged. HC Sunil had told him that Rohit @ Machchi had robbed money of Nitin and thereafter, he was running away. However, he was apprehended by Nitin and he was produced before HC Sunil Kumar who was present nearby. However, in the meantime, associates of Rohit had gathered there and they had beaten HC Sunil Kumar. His motorcycle was also damaged by them. Rohit was also found injured. Nitin was also found injured. He directed Ct. Lokesh remained at the spot to preserve the crime scene. He alongwith Ct. Damodar had taken HC Sunil Kumar, Rohit and Nitin to Hindu Rao Hospital. Their MLCs were prepared. They were given first aid. He recorded two separate statements of Nitin and HC Sunil. He prepared two separates tehrirs on those two statements. The Photocopy of the statement of HC Sunil Kumar Ex. PW-3/A (the original statement is in the case file which has been summoned from the JJB and tagged along with the present file. The original was also seen by the court). The tehrir which was prepared on the statement of HC Sunil Kumar Ex. PW-9/A from point X to X-1 bearing his signatures at point B (the original tehrir is State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 18/39 in the case file which has been summoned from the JJB and tagged along with the present file. The original is also seen). Ct. Damodar was handed over both the tehrirs and he was directed to go to the PS and to get the FIR registered. He left the spot with the tehrir. FIR no. 94/11 PS Gulabi Bagh was registered on the statement of Nitin and investigation was marked to me. FIR no. 95/11 was registered on the statement of HC Sunil Kumar and investigation was marked to SI Sukhdev Singh. SI Sukhdev Singh reached the hospital. He handed over blood samples of HC Sunil Kumar to him which was seized by him vide memo Ex. PW-3/E. He had recorded his statement. He was discharged from this case. An opportunity for cross-examination of the witness given to the accused, however the same is not availed.
14. Vide separate statements of the accused recorded u/s 294 Cr.P.C on 16.08.2019 , the accused admitted the sanction u/s 195 CrPC Ex. A-3 without admitting the contents of the same. Further, the accused also admitted DD No. 27A dated 08.12.2011 which is Ex. A-1, DD No. 29A dated 08.12.2011 (Ex.PW7/A), DD No. 30A dated 08.12.2011 (Ex.PW7/B), DD No. 31A dated 08.12.2011 (Ex.PW7/C), DD No. 34A dated 08.12.2011 (Ex.PW3/D) and MLC No. 8372/11 dated 09.02.2011 which is Ex. A-2 vide his separate statement recorded on 22.11.2017. The prosecution evidence was closed on 10.02.2021.
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 19/39 STATEMENT OF ACCUSED U/S 313 CR.P.C:
15. The statement of the accused was recorded under Section 313 read with section 281 of Cr.P.C on 13.05.2022, wherein he pleaded his innocence by denying all the allegations leveled against him and stated that he has been falsely implicated in the present case.. Accused opted not to lead any defence Evidence.
FINAL ARGUMENTS:
16. Final arguments in the case were heard. I have heard Ld. APP for State and learned Legal Aid Counsel for accused. I have perused the record.
17. Ld. APP for the state argues that the prosecution has successfully proved its case against the accused. While arguing, Ld. APP for the state referred to the testimonies of the prosecution witnesses examined during trial, more particularly, testimony of PW-3 and PW-6. Ld. APP for the state has further submitted that all prosecution witnesses have given their testimony in unisom and eye-witnesses are also supporting the case of prosecution. He further stressed upon the fact that PW-3 was performing his official duty at the time of the incident and the accused had voluntarily in furtherance of common intention of his associates assaulted PW-3 and State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 20/39 thereby preventing him from discharging his official duty as public servant.
18. On the other hand, Learned LAC for the defence argued that the prosecution has failed to prove its case as the accused was arrested after a gap of more than 1 month and that too only on the basis of the disclosure statement of the co-accused. It is further argued that no public witness joined the investigation proceedings. He further submitted that no specific allegations were leveled against accused Adhir as complainant deposed that his shirt was torn by co-accused.
Hence, it is argued that the benefit of doubt should, thus, be given to the accused.
LEGAL PROVISIONS:
19. I have cogitated over the submissions made by Ld. APP for the state and ld. LAC for the accused. At this juncture, it is prudent to discuss the penal provisions involved in the case for arriving at a just decision. The penal provisions are reproduced in verbatim:-
186. 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.
332. Voluntarily causing hurt to deter public servant from his duty.--
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 21/39 Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant 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.
353. 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.
34. Acts done by several persons in furtherance of common intention.
--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 425 Mischief defines as under: Whoever with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or an such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits "mischief".
Section 427 IPC Mischief causing damage to the amount of fifty rupees: Whoever commits mischief and thereby causes loss or damage to the amount fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
FINDINGS AND ANALYSIS:
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 22/39
20. The prosecution in this case had to prove the following:
● Firstly, the complainant HC Sunil Kumar was a public servant and was discharging his public function at the time of incident;
● Secondly, that the accused had voluntarily obstructed the complainant while he was discharging his public function;
● Thirdly, the accused had voluntarily assaulted and used criminal force against complainant with a intent to deter him from discharging his public function; ● Fourthly, the accused has caused hurt to the complainant;
● Fifthly, the accused caused actual destruction of any property and damage for an amount more than Rs. 50/- with the intention/knowledge that the same is likely to be caused.
21. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading cogent and convincing evidence to successfully bring home the guilt of the accused. My observations on the evidence led at the trial are delineated hereinafter.
22. Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 23/39 "While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
23. Coming to the case at hand, section 186, IPC, provides the punishment for voluntarily obstructing any public servant in the discharge of his public functions. Section 353 IPC provides the punishment for assaulting or using 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. The common thread running between Section 186, IPC and Section 353, IPC is that the offence should have been committed against a public official when the official was discharging his official duties as a public servant. So, it is State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 24/39 necessary for the prosecution to establish that the complainant was discharging his official duties as a public servant when the accused committed offences with which he is charged in the present case.
24. It has been held by the Hon'ble Supreme Court of India in a three judges bench judgment in a case titled Durgacharan Naik And Ors vs State Of Orissa,1966 AIR 1775:− "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 Codeis applicable to a case where theaccused 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 State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 25/39 but which is not within the ambit of that section."
25. In the present case, a complaint under Section 195 Cr.P.C was made by Assistant Commissioner of Police, Sub-
Division, Sarai Rohilla, Delhi, who was the senior officer of the complainant at the relevant time. The said complaint is Ex. A-3. The complaint has been admitted by the accused u/s 294 Cr.P.C. Therefore, compliance of Section 195.Cr.P.C has been done in the present case.
26. While deliberating upon the evidence as led by the prosecution, it comes out that there are two eyewitnesses in the present matter i.e., the victim / complainant HC Sunil Kumar who was examined as PW-3 and PW-6 Ct. Lokesh. Let us scan their testimonies, to decipher as to whether offences U/s 186/353/332/427/34 are being made out.
27. At this stage, before delving into the ingredients of specific offences of which the accused is charged with, firstly, the identity of the accused as an assailant is required to be proved beyond the pale of reasonable doubt by the prosecution.
28. For the above-said purpose, a careful perusal of the testimony of PW-3 who is the complainant and PW-6 who is State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 26/39 one of the eye-witness reflected that they have categorically deposed in favor of prosecution story as far as identity of accused is concerned. They have stated that they were on the spot as they were on patrolling duty in the area of beat no.2 and both of them have correctly identified the accused before the court. Further, in the initial complaint i.e. Ex. PW-3/A dated 09.12.2011, the name of the accused along with his residential address was clearly mentioned by the complainant. Even during his examination as PW-3, he deposed that he knew the accused even before this incident as he was the beat officer of the area. In addition to this, statements of accused recorded u/s 313 Cr.P.C are relevant to be read wherein the accused has no where denied his presence at the spot. He merely stated that he has been falsely implicated in the present case. Hence, the deliberation of the entire evidence tendered on behalf of the prosecution would reveal that the prosecution has successfully proved the identity of the accused at the spot at the relevant time.
29. Now, in order to prove the offence punishable u/s 186/34 IPC, the prosecution is required to prove that the complainant is a public servant and he was performing his official duty at the time of incident. It is further required to prove that a public servant was obstructed and prevented from discharging public function by the accused and thereby State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 27/39 caused hurt to the complainant. In the present factual matrix, PW-3 HC Sunil Kumar has deposed that on the date of the incident, he was on patrolling duty vide DD No. 34B dated 08.12.2011 which is Ex. PW3/D. Hence, it is proved the complainant was on duty at the relevant time. Further, PW-3 testified that when he alongwith Ct. Lokesh was interrogating the co-accused Rahul, three boys namely, Adhir, Sonu and Rahul came there and started abusing them. He categorically deposed that they further tried to rescue co-accused Rahul, started fighting with them and pelted stones on them, and someone also called PCR. Here, it is relevant to note that testimony of PW-7 HC Prakash Chand comes as an aid to the prosecution version who proved the DD entries of PCR calls of the alleged incident recorded which are mark D-1(OSR), Ex.PW-7/A, Ex.PW-7/B, and Ex.PW-7/C.
30. The testimony of PW-3 is corroborated by FIR (Ex. PW-5/A) as per section 157 Indian Evidence Act. Statements of the complainant were promptly recorded and there was no delay in the registration of the FIR. The accused has also failed to put any question in the cross-examination of complainant/PW-3 despite opportunities given. Thus, his testimony in respect of the occurrence of the incident has remained unimpeached and blotless. Further, the lodging of FIR soon after the incident is relevant under section 6 Indian State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 28/39 Evidence Act as fact forming part of the same transaction, also as res gestae and u/s 8 Indian Evidence Act as subsequent conduct of the victim influenced by fact in issue i.e. obstruction of public duty and causation of assault and hurt upon the person of complainant. Testimony of eye- witness is direct evidence under section 60 Indian Evidence Act and has great credibility in law. The testimony of PW-3, as led before the Court is devoid of any material contradictions. He has maintained complete fidelity to his earlier statement i.e. PW-3/A. The complaint dated 06.02.2012 under Section 195 Cr.P.C., has been filed alongwith the charge-sheet which contains a request for initiating prosecution under Section 186/353/332/427/34 IPC against all the accused persons including accused Adhir. Considering holistically, the prosecution is able to discharge its burden as far as offecne u/s 186/34 IPC is concerned.
31. As regards the offence punishable u/s 332/353/34 IPC, the prosecution needs to establish that the accused voluntarily in furtherance of common intention of his associates caused hurt to a public servant in discharge of his official duty and had also intentionally assaulted or used criminal force against said public servant. The testimony of PW-3 is again delved into for establishing the offences under section 332/353/34 IPC. The witness has testified that the State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 29/39 accused along with his associates started fighting with him, assaulted him and pelted stones on him. Pertinent it is to mention that PW-3 has identified the case property i.e, his official uniform. At this stage, it is worth observing that the witness was not cross-examined by the accused despite opportunities given. PW-6 Ct. Lokesh who was also present with the complainant at the spot corroborated the version of complainant and supported the prosecution story. The witness has successfully withstood the test of cross-examination. The deliberation of the entire evidence tendered on behalf of the prosecution would reveal that the prosecution has successfully proved the fact that the accused had a scuffle with PW-3. It has also been proven beyond doubt that the accused Adhir along with his associates acting in common intention had used criminal force against PW-3 and caused hurt to him by pelting stones on the complainant while he was performing his duty in order to deter him from discharging the said duty. Hence, offence punishable u/s 353/332 read with section 34 IPC stands proved against accused Adhir.
32. As far as offence of mischief punishable u/s 427/34 IPC is concerned, the actual damage/loss has to be shown by the prosecution to convict the accused. In the present case, PW-3 deposed in his examination-in-chief that his bike also got damaged during the alleged incident. PW-6 also deposed State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 30/39 on similar lines. However, after minutely scanning their testimonies, it reflected that PW-3 testified the first accused along with his associates was assaulting and obstructing him, then pelted stones on him. Later on, he deposed that some more persons from the locality of the accused gathered at the spot and started pelting stones on them. At this stage, it is not clear whether the bike of the complainant was damaged due to the act of the accused or his associates or due to the act of gathered local persons. Furthermore, this factum of damage/loss to the bike has not been whispered in the initial complaint lodged which led to the registration of present FIR. In the initial complaint, the complainant has mentioned that due to pelting by the accused person some vehicles at the spot got damaged, however nothing about damage to his own bike. Further, PW-6 and PW-3 testified in their examination-in- chiefs that IO took photographs of the damaged bike of the complainant. PW-6 and PW-8/IO even identified the above said two photographs of the bike which are Ex. P-2(colly). However, neither the instrument from which the photographs were taken were produced in the Court nor any certificate as mandated U/s 65 B of the Indian Evidence Act was furnished by the prosecution. In these circumstances, the photographs of the alleged incident have not been duly proved. Suffice it that if some proper photographs or CCTV footage had been placed on record, it would have strengthened the case of State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 31/39 prosecution and also helped the court to make the picture clear about the case of prosecution. Therefore, the prosecution has not proved how and what damage has been caused to the complainant and no specific role has been assigned to accused Adhir or his associates which led to damage/loss to the bike and benefit of doubt is given to the accused and charge u/s 427/34 IPC stands not proved against the accused.
33. Let us come to the defences taken by the accused. One leg of the defence was that no public person was examined or made witness by the prosecution except the PW-1 who is already complainant in another FIR lodged against one co- accused Rahul @ Machchi(since convicted in the present FIR). Therefore, it is argued that testimonies of PW-1 who seems to be interested in the present case and also failed to identify the accused during his cross-examination creates doubts in the story of the prosecution. Also, it is submitted that testimonies of the police witnesses alone cannot be relied upon to convict the accused as the accused has been falsely implicated.
34. Here, it is relevant to refer to a case titled Ajmer Singh vs. State of Haryana, 2010 (2) SCR 785, where the Hon'ble Supreme Court held that it is not always possible to find independent witnesses at all places at all times. The obligation State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 32/39 to join public witness is not absolute. The Hon'ble Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police official is believable as to place implicit reliance thereon. Moreover, only because witness PW-3 HC Sunil Kumar is a police official, the same by itself does not make him unworthy of credit. It is to be noted that in the present case he is the victim and his testimony should be read at par with evidence of any other complainant/victim of the case. The official capacity of a police witness does not by itself create any doubt about his creditworthiness. He cannot be presumed to be less or more reliable than any other normal public witnesses. These observations are supported by various judgments of Hon'ble Higher Courts. As far as non-joining of independent public witnesses is concerned, it is a well settled principle of law that it is the quality of evidence that matters and not the quantity/number of witnesses. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact (Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81).
35. The court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 33/39 witnesses in our country to wash off their hands/desist from joining/assisting the investigation. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep themselves away from the Court unless it is inevitable. (Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
36. In Jawahar v. State, (Delhi) 2007(4) R.C.R. (Criminal) 336 it was further observed that (1) It is very hard these days to get association of public witnesses in criminal investigation and (2) Normally, nobody from the public is prepared to suffer any inconvenience for the sake of society. Further, the testimony of PW-3 HC Sunil Kumar has been found reliable and no major contradictions were found in the same. His testimony cannot be doubted merely because no independent public witness was joined in the investigation. The addition of public witness is a rule of prudence and not a rule of evidence.
37. As far as defence of false implication of the accused is concerned there is nothing on the entire record to suggest untrustworthiness of the witnesses. If the defence wants this court to believe that the accused has been implicated falsely, the least which was expected from the defence was to at least come out as to what could have been the motive for the police State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 34/39 for falsely implicating the accused, but no such reason is even mentioned/explained. The defence cannot expect this Court to believe its version by a simple bare allegation that the accused is falsely implicated. At least some reason should have been put forth by the defence to suggest as to what could have been the motive of the police in implicating them. In the absence of this, I do not find any reason to disbelieve the testimony of witnesses as there does not appear any reason or motive for false implication of the accused by the complainant. Further, Accused had not alleged any enmity with police officials also and there is no material to suspect false implication of the accused by the police.
38. Regarding non-identification of accused by PW-1 during his cross-examination is concerned, it is crucial here to note that the alleged incident is of year 2011, and PW-1 first examined-in-chief on 07.11.2012, i.e soon after the incident and he correctly identified the accused Adhir. PW-1 was again recalled for cross-examination u/s 311 Cr.P.C by the accused on 31.08.2019. During this cross-examination, PW-1 stated that he was not able to remember the accused due to lapse of time. It has been held time and again that evidence has to be evaluated in the light of practical senses and humans cannot be expected to be a memory machine who could recollect everything during his examination before the State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 35/39 court. Here, aptly, reference can also be made to the judgment of Hon'ble Supreme Court recently in a case titled as Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra 2022 (SC) 596 Cr. Appeal 739 of 2017 decided on 14 July 2022. In this case, the Apex court has laid down elaborately some judicially evolved principles for appreciation of ocular evidence in a criminal case and observed that hyper technical approach should not be adopted while appreciating the oral evidence of witnesses. The apex court also refers to observations made in a case of the State of U.P. v. Anil Singh, AIR 1988 SC 1998 as following:
"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other both are public duties which the Judge has to perform."
39. Coming to the facts of the present case, PW-1 was recalled before the court after a gap of more than 9 years since the incident in question, and the accused was neither previously known to him. It is quite reasonable to believe that due to the lapse of such a considerable period he might not be able to recall the face of the accused. Also, during his examination soon after the incident, he has correctly State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 36/39 identified the accused. Accordingly, this ground of defence also does not hold water.
40. One another leg of defence is that it was co-accused Rahul who tore the uniform of the complainant as per the testimony of PW-1/Complainant and similar version is also mentioned in his initial complaint. Here, I would like to discuss section 34 IPC which imposes the culpability on the co-accused when any criminal act is being committed by several persons(co-accused). The essential requirement for this joint culpability is the common intention which means agreement of minds of those involved in the commission of criminal acts. Reliance can be placed on the judgment of Hon'ble Supreme Court in a case titled as Krishnan And Anr. vs State of Kerala 1996 SCR (5) Supp 405, where apex court held that the required element under this clause is the criminal conduct committed in furtherance of a common intention, and Section 34 did not require anything else to be attracted. Although any overt conduct would be looked into in determining whether the individual had a common intention, the court emphasized that the formation of an overt act is not a sine qua non for section 34 to function. In the present case, complainant has alleged several overt acts by accused Adhir as when co-accused Rahul was apprehended, accused Adhir with other associates started fighting with the complainant, State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 37/39 pelted stones on him, and thereafter flee away from the spot, which reflected the common intention was formed at the spur of that moment. Hence, this defence of the accused does not impair the case of the prosecution.
DECISION:
41. After going through the entire evidence, I do not find any material major contradiction or omission in the evidence of the prosecution witnesses. Accused has no defence evidence except his denial statement. Defence side has failed to shake or demolish the evidence of the prosecution side. I don't find any ground/reason to disbelieve the evidence available with the record.
42. In summation of all evidence and observations made above, it has to be concluded that the prosecution has failed to prove the guilt of the accused for commission of offence u/s 427/34 IPC beyond reasonable doubt but has proved the offence u/s 186/353/332/34 IPC. Hence, the accused Adhir S/o Sh. Hariom is acquitted of charge leveled against him u/s 427/34 IPC and is convicted for the offence u/s 186/353/332/34 IPC in the present case.
State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 38/39
43. Copy of this order be given free of cost to the accused.
Announced in the open court Digitally signed
by MEENA
CHAUHAN
on 03rd January, 2023 MEENA
CHAUHAN
Date:
2023.01.03
15:42:26
+0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari Courts/Delhi [This judgment contains 39 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Adhir FIR No. 95/11 PS Gulabi Bagh 39/39