IN THE COURT OF MS. CHETNA SINGH:ACMM-02 (CENTRAL) TIS HAZARI COURTS, DELHI STATE Vs. DEEPAK FIR No. 119/12 New Case No. 293702/16 U/s : 186/353 [ACT] P.S. : GULABI BAGH Date of Institution : 15.10.2013 Date on which case reserved for Judgment : 07.04.2018 Date of judgment : 07.04.2018 JUDGMENT
1.FIR No. of the case : 119/2012 2.Date of the Commission : 14.11.2012 of the offence 3.Name of the accused : [ENTITY] S/o Sh. [ENTITY] R/o H.No. 10682, Gali No. 9, [ENTITY], Pratap Nagar, Delhi. 4.Offence complained of : 186/353 [ACT] 5.Plea of accused : Pleaded not guilty. 6.Final order : Convicted u/[SECTION] [ACT]. FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 1 of 18 BRIEF FACTS
1. The story of the prosecution is that on 14.11.2012 at about 9.30 PM, near street No. 8, Road No. 40, Pratap Nagar, Delhi within the jurisdiction of PS Gulabi Bagh, the accused [ENTITY] voluntarily obstructed Ct. [ENTITY], a public servant employed with Delhi Police while he was discharging his duty and thereby committed an offence punishable u/[SECTION] [ACT] and voluntarily assaulted and used criminal force against Ct. [ENTITY] while he was discharging his duty as a public servant with intention to deter his from discharging his duty and thereby committed an offence punishable u/[SECTION] [ACT].
2. On the basis of the chargesheet, charge of offence U/[SECTION] [ACT] was framed against accused [ENTITY] and explained to him in vernacular to which he pleaded not guilty and claimed trial on 15.03.2014. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution has examined 8 witnesses in total.
4. PW1 [ENTITY] deposed that on 14.11.2012, he was posted as head Constable at PS Gulabi Bagh as Duty Officer. He received information regarding snatching via wireless set at about 9.45 FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 2 of 18 PM. Same was registered in daily dairy register vide [CASE NUMBER] date 14.11.2012 and was handed over to ASI [ENTITY] alongwith Ct. [ENTITY] for further action which is Ex.PW1/A (OSR). On the same date, he received a rukka from Ct. [ENTITY] sent by ASI [ENTITY] at about 11.15 P.M. On that basis of the rukka, he registered the FIR and handed over [ENTITY] and copy of FIR Ex.PW1/B bearing his signature at point A (OSR) to Ct. [ENTITY] for further course of action. He have also made endorsement on rukka Ex.PW1/C from A1 to A2 bearing his signature at point A. This witness was not cross examined by Ld. Defence counsel despite opportunity given.
5. PW2 Ct. [ENTITY] deposed that on 14.11.2012, he was posted as Constable at PS Gulabi Bagh. He alongwith ASI [ENTITY] received [CASE NUMBER] regarding snatching of mobile phone. He alongwith ASI [ENTITY] left for Gali No.8, [ENTITY]. Complainant [ENTITY], Ct. [ENTITY] and two accused were present at the spot. Complainant [ENTITY] produced one accused and informed them that he snatched mobile phone from him. Ct. [ENTITY] produced another accused and informed them that accused [ENTITY] interfered while he was apprehending the accused who snatched the mobile phone of complainant [ENTITY]. Ct. [ENTITY] further informed that accused [ENTITY] also physically assaulted him. Therefore, IO handed over a tehrir to him for registration of FIR. He handed over abovesaid tehrir already Ex.PW1/C to duty officer for registration of FIR. Duty officer handed over copy of FIR which is Ex.PW1/B and tehrir to him. He handed over the FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 3 of 18 same to IO for further course of action. IO recorded his statement. accused [ENTITY] were correctly identified by the witness. Witness also identified the case property.
This witness was cross examined at length. However, his cross examination is not repeated herein for the sake of brevity.
6. PW3 [ENTITY] deposed that on 14.11.2012, he was posted as constable at PS Gulabi Bagh. He was on patrolling duty vide DD No. 41B at [ENTITY], Gali No.8. He heard alarm "[ENTITY], [ENTITY]" near gali No.8. IO seized torn uniform vide seizure memo which is Ex.PW3/A bearing his signature at point A. IO arrested accused [ENTITY] vide arrest memo which is Ex.PW3/B bearing his signature at point A. accused [ENTITY] personal search was also conducted vide personal search memo which is Ex.PW3/C. IO prepared site plan at the instance of complainant which is Ex.PW3/D. IO recorded his statement.
This witness was cross examined at length. However, his cross examination is not repeated herein for the sake of brevity.
7. PW4 Sh. [ENTITY] deposed that on 14.11.2012, at around 9.30 PM, one person came to him and snatched his mobile phone make LAVA. Thereafter he raised alarm "Chor [ENTITY]". One police official apprehended accused [ENTITY]. One person of healthy built came to abovesaid police officer and told him that accused [ENTITY] did not commit theft. Thereafter the said person started quarreling with police officer and grabbed his collar and assaulted him. Meanwhile other police officials also came at the spot. Police officer FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 4 of 18 recorded his statement vide Ex.PW4/A. During the incident, accused [ENTITY] torn the uniform of police officer. He had shown the place of incident to police officer and he prepared site plan at his instance. He correctly identified accused [ENTITY] and the torn shirt.
This witness was cross examined at length. However, his cross examination is not repeated herein for the sake of brevity.
8. PW5 ASI [ENTITY] deposed that he identified the signature of Sh. [ENTITY], the then ACP on complaint u/[SECTION] [ACT] which is Ex.PW5/A bearing signature of Sh. [ENTITY] at point A. This witness was not cross examined by Ld. Defence counsel despite opportunity given.
9. PW6 SI [ENTITY] deposed that 14.11.2012, he received DD no. 31A regarding apprehension of one person, who committed theft opposite Gali no.10 near metro station Pratap Nagar, Delhi. He alongwith Ct. [ENTITY] reached at the spot and met Ct. [ENTITY] alongwith other three persons. Thereafter Ct. [ENTITY] handed over accused [ENTITY] to him. Complainant [ENTITY] handed over one person namely [ENTITY] to him. He recorded statement of complainant which is Ex.PW4/A bearing his signature at point B and made endorsement on the same. Thereafter he handed over a rukka to Ct. [ENTITY] for registration of FIR. Ct. [ENTITY] came back alongwith copy of FIR and rukka. Meanwhile, SI [ENTITY] came at the spot and Ct. [ENTITY] handed over the same to SI [ENTITY]. Thereafter he handed over both FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 5 of 18 the accused persons and all the documents to SI [ENTITY]. He correctly identified accused [ENTITY] in the court and case property which is Ex.P1.
This witness was cross examined at length. However, his cross examination is not repeated herein for the sake of brevity.
10. PW7 ASI [ENTITY] deposed that on 14.11.2012, he was posted as MHC(M) PS Gulabi bagh. SI [ENTITY] deposited the case property in the malkhana i.e. torn uniform of Ct. [ENTITY] in a sealed pullanda with the seal of [ENTITY]. He deposited the same vide entry no. 1171 in register no. 19 dated 14.11.2012 which is Ex.PW7/A. This witness was not cross examined by Ld. Defence counsel despite opportunity given.
11. PW8 SI [ENTITY] deposed that on 14.11.2012, he was posted as SI with PS Gulabi Bagh. On that day, the present case was marked to him for further investigation vide DD NO. 33A which is Ex.PW8/A. He went to the spot in his personal car i.e. near Gali No. 10, [ENTITY], Pratap Nagar, Delhi. On the spot, he met with complainant, ASI [ENTITY], Ct. [ENTITY], Ct. [ENTITY], accused [ENTITY]. ASI [ENTITY] narrated him the facts of the incident. He also enquired from the complainant. One person who was already apprehended by the police staff, appeared to him under age and therefore her mother was called and proceedings for JCL qua said person was completed. Ct. [ENTITY] handed over him his torn uniform. He kept the same in a pullanda and sealed with the seal of [ENTITY] and seized the same vide seizure memo Ex.PW3/A bearing his signature at point B. He prepared the site plan FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 6 of 18 which is Ex.PW3/D bearing his signature at point A. He arrested accused [ENTITY] vide arrest memo Ex.PW3/B bearing his signature at point C. accused [ENTITY] personal search was conducted vide search memo Ex.PW3/C bearing his signature at point C. He also recorded statement of witnesses. From the spot, they returned to the PS and accused [ENTITY] were put behind bars. He also deposited the case property in the Malkhana. During the investigation, he also collected the sanction u/[SECTION] [ACT] from concerned ACP. After completing the investigation, he filed the chargesheet before the court. The case property Ex.PW1.
This witness was cross examined at length. However, his cross examination is not repeated herein for the sake of brevity.
12. As all witnesses were examined by the prosecution. PE was ordered vide order dated 02.02.2018. Statement of accused [ENTITY] was recorded under [SECTION] [ACT] on 28.02.2018 and accused has opted not to lead defence evidence accordingly defence evidence was closed and matter was listed for final arguments.
13. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
14. Prosecution is alleging the commission of offence under [SECTION] [ACT] and the relevant statutory provisions for ready reference are:-
FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 7 of 18 "[SECTION], [ACT] 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. In order to bring home a charge for the offence u/[SECTION] [ACT] prosecution is required to prove the following ingredients:-
(I) Voluntary causing obstruction to any public servant. (II) While such public servant is acting in the discharge of his duties.
"[SECTION] [ACT] 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."
15. In order to bring home a charge for the offence u/[SECTION] [ACT] prosecution is required to prove the following ingredients:-
FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 8 of 18 (I) Assault or use of criminal force to any public servant.
(ii) While such public servant is acting in the discharge of his duties.
16. In the present case, the prosecution has examined 8 witnesses in total including the complainant and the Investigating Officer. The complainant Sh. [ENTITY] has been examined as PW4 and deposed that on 14.11.2012 one person came to him at about 9.30 PM at Gali No.8, [ENTITY], Pratap Nagar, Delhi and snatched his mobile and he raised an alarm "Chor [ENTITY]" due to which one police official apprehended the said person. On apprehension of the said person another person of healthy built came to police official and told him that the apprehended person has not committed any offence and started quarreling with the said police official and grabbed his collar and assaulted him. Meanwhile, the other police officials also came on the spot. The complainant duly identified the accused to be the person who assaulted the police official and proved his statement Ex.PW4/A bearing his signature at point A. He further stated that the uniform of the said police official also got torn by the accused and the said uniform was also seized vide seizure memo Ex.PW3/A, bearing his signature at point B and the police officials also prepared site plan at his instance which is Ex.PW3/D. The accused was arrested and his personal search was conducted vide memo Ex.PW3/B and Ex.PW3/C respectively. The case property being the torn shirt of the police official was shown to the witness who correctly identified the shirt. As per the observation of the court, FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 9 of 18 collar button of the shirt was broken and the stitching of the shirt from the right side under arms had come out.
This witness was cross-examined at length wherein he was questioned by the court as regards the identity of the police official who was manhandled by the accused and the witness identified PW3 [ENTITY] to be the said person who was cross-examined before his testimony was recorded in the court on the same date i.e. 17.02.2017.
17. This witness has been further corroborated by the constable who was assaulted and examined as PW3 namely [ENTITY] who also identified the accused and deposed on similar lines as the complainant as regard the narration of the incident. He deposed that the accused held him from neck and his uniform from the front side got torn and stated that the accused started abusing him. He further deposed that the other police officials namely ASI [ENTITY] and Ct. [ENTITY] also came to the spot. He identified his uniform.
18. This witness and the complainant were further corroborated by PW Constable [ENTITY] who also stated that when he reached the spot alongwith ASI [ENTITY] on receiving of DD No.31A, they found complainant [ENTITY] and Ct. [ENTITY] alongwith two persons were present on the spot and he correctly identified the accused [ENTITY] to be the person on the spot and stated he took the [ENTITY] for registration of FIR which is Ex.PW1/C and came back to the spot after getting the FIR registered. This witness also identified the case property being torn uniform.
FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 10 of 18
19. It was contended by Ld. defence counsel that no independent public persons have been joined in the investigation. Further, it was argued by Ld. APP for State that the State has successfully proved its case and the complainant is an independent witness who has been corroborated by police constable who was assaulted by the accused and by the other police officials who were present at the spot.
20. It is clear from the testimony of the complainant, who has consistently deposed that no material contradiction could be elicited from his cross-examination to breach his credibility. The complainant is the public witness in this matter.
21. Further, the remaining police witnesses have duly corroborated the version of the complainant and the case property has been duly identified. No material contradiction could be noted despite elaborate cross examination by Ld. Defence counsel.
22. It is settled law that the witnesses are to be weighed and not counted and conviction can be sustained upon the sole testimony of the complainant without any independent corroboration.
23. It has been observed by the Hon'ble Apex Court in the matter of "[PRECEDENT]-
FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 11 of 18 "The legal position in respect of the testimony of a solitary eye-witness is well-settled in a catena of judgments in as much as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it. In the case on hand, the testimony of the solitary eye-witness stands corroborated by other circumstances and evidences and more particularly."
24. Further, in the matter of "[PRECEDENT]" it has been observed that:-
" Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 12 of 18 weighed and not counted since quality matters more than quantity in human affairs "
25. In the matter of " Vadivelu Thevar V. The State of Madras"
(AIR 1957 Supreme Court 614), it has been observed that:-
"The Indian Legislature has not insisted on laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 13 of 18 an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witness. Situation may arise and do arise where only a single person is available to give evidence in support of a dispute fact. The Court naturally has to weigh carefully such a testimony open FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 14 of 18 to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, i case of sexual offences or of the testimony of an approver, both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."
26. Furthermore, it cannot be said that police officials are not reliable witnesses and their testimony cannot be acted upon unless corroborated by independent public witnesses. It is a matter of common knowledge that members of general public are reluctant to join the investigation and testify in a court of law. The pious cause of justice cannot be abandoned due to the general apathy and callousness of the common man.
27. Further, it is clear that an independent public witness being the complainant has been joined by the prosecution. It is not the case of defence that the complainant had previous enmity with the accused and thus there is no reason that complainant would falsely implicate the accused.
28. It has been observed by the Hon'ble Apex Court in the matter of "[PRECEDENT] that :-
FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 15 of 18 "The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.
29. The Apex Court reiterated the above position in precedent titled as [PRECEDENT] has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 16 of 18 official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
30. Furthermore, minor contradictions if any, noted in the testimony of the police witnesses are too obvious and natural as they cannot be expected to have a photogenic memory as they depose before courts in routine.
31. In [PRECEDENT] the Hon'ble Supreme Court was pleased to hold that:
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 17 of 18 witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancies may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so".
32. From the unimpeached and blemish free testimony of the complainant and other police witnesses, it is conclusively established on record that the accused voluntarily obstructed [ENTITY] and used criminal force against him thereby tearing his uniform when he was on duty as a public servant and thus the prosecution has successfully established its case beyond a shadow of doubt that the accused has committed offence under [SECTION] [ACT]. Accordingly, accused [ENTITY] is convicted for the alleged offences under [SECTION] [ACT].
33. Ordered accordingly.
Digitally signed by [ENTITY] Date: Announced in the open 2018.04.10 15:22:28 Court on 07.04.2018 +0000 ([ENTITY]) Addl. Chief Metropolitan Magistrate
Central/Tis Hazari Courts, Delhi/ 07.04.2018 FIR No. 119/2012 PS: Gulabi Bagh State Vs [ENTITY] Page No. 18 of 18