Delhi District Court
Sc No. 44/3/14 Fir No. 114/13 State vs . Praveen & Anr. Pages 1 Of 21 on 23 December, 2016
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CNR No. : DLND01-000684-2013
New Case No. : 9144/2016
S.C. No. : 44/3/14
FIR No. : 114/2013
U/S: : 186/353/307/34 IPC
PS: : Tilak Marg
State
Versus
1. Praveen
S/o Sh Rajbir Singh
R/o H. No. 05, Gali No. 02, Village Khichri Pur,
Kalyan Puri, New Delhi.
2. Vinay Gautam @ Sunny
S/o Sh Amarjeet
R/o H. No. 14/143, Kalyanpuri,
New Delhi. ......... Accused Persons.
Date of receipt of file in this Court : 02.04.2014
Date when arguments were heard : 16.12.2016
Date of judgment : 23.12.2016
JUDGMENT
1 The above said accused persons have been charge sheeted by police station Tilak Marg for commission of offences punishable under section 186/353/307/34 IPC. 2 Copy of charge sheet was supplied to the accused persons by learned Metropolitan Magistrate, Patiala House Courts, New Delhi. The learned Metropolitan Magistrate after complying with the provisions of section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable under section 307 IPC is exclusively triable by the Sessions court.
3 Story of the prosecution in brief is that on 05.07.2013 at about 12.10am at C- Hexagon, outer circle, India gate, New Delhi, the above said two accused persons SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 1 of 21 along with one juvenile 'X' were coming on a modified bullet cycle without any registration number, the accused persons and the said juvenile were not wearing helmets and the motor cycle was being driven by accused Vinay Gautam @ Sunny. PW1 Ct Nitin/complainant, PW3 ASI Rajender, PW10 Ct Chander Bhan, PW8 HC Jagdish Chand/injured and Ct Abhimanyu, all public servants were deputed at above said C-Hexagon, outer circle, India gate who were checking the vehicles by putting barricades. The officiating police officers at the barricades asked/raised a signal to stop the said motorcycle, however, at the instance of accused Praveen and juvenile 'X', the accused Vinay Gautam @ Sunny did not stop the said motorcycle upon the signal given by PW1 Ct Nitin. At the time of incident, accused Praveen and juvenile exhorted the accused Vinay Gautam @ Sunny by saying 'maro in salo police walo ko'. Accused Vinay Gautam @ Sunny accelerated the speed of said motorcycle thereby hitting it with PW8/injured HC Jagdish Chand exactly between his legs on his private parts who was performing his official duty being a public servant. As a result of said impact, PW8 HC Jagdish Chand jumped in the air, fell down on the road and received multiple injuries which were grievous in nature and thus both the accused persons in furtherance of their common intention with 'X' attempted to murder PW8. The said accused persons in furtherance of their common intention also voluntarily obstructed the public servants/police officers in discharge of their public duties and voluntarily assaulted or used criminal force upon PW8 HC Jagdish Chand, a public servant who was executing his duties with an intent to deter him from discharging his duty as such public servant by hitting him with a fast speeding motorcycle. After the incident, the said motorcycle fell down on the ground, both the accused persons and X were apprehended by the police at the spot.
4 PW2 HC Gangavir was on duty at PCR Victor 14 and after receipt of information regarding to injury caused to police officer at about 12.10am reached at the spot with staff and vehicle and took injured/PW8 to RML hospital for treatment. On 05.07.2013 at about 12.20am PW11 SI Mahender Kumar/IO received DD No. 3A Ex PW7/C regarding the said incident and he along with PW5 Ct Narrotam reached at the spot SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 2 of 21 where they found PW3, PW10, Ct Abhimanyu and accused Vinay Gautam @ Sunny along with juvenile 'X'. By that time, PW8/injured along with accused Praveen had already been taken by PCR to the hospital. PW11/IO after leaving PW5 to guard the spot went to RML hospital where he met complainant/PW1 Ct Nitin and injured PW8. 5 The injury to PW8 was opined as grievous vide MLC No. PW6/A. As per MLC, doctor had declared PW8 fit for statement, however, due to severe pain, he did not give his statement, therefore, IO recorded the statement of eye witness i.e. PW1. Thereafter, IO along with PW1 came back to the spot, IO prepared a rukka and handed over to PW5 for registration of the FIR upon which the case FIR Ex PW7/A u/s 186/353/307/34 IPC was recorded. PW5 returned back at the spot and handed over the copy of FIR and original rukka to the IO. PW11/IO prepared the site plan of the spot at the instance of the complainant/PW1. IO seized the bullet type motorcycle Ex P1, its broken head light and its keys vide seizure memo Ex PW1/C. PW5 went to RML hospital and brought accused Vinay Gautam @ Sunny at the spot. The accused persons were arrested. PW12 Pawan Kumar, ACP, Connaught Place on 29.08.2013 gave the complaint u/s 195 CrPC for the prosecution of the accused persons u/s 186/353/307/34 IPC. After investigation, the charge sheet u/s 307 IPC was filed against accused persons on behalf of PS Tilak Marg.
6 The accused persons namely Praveen and Vinay Gautam @ Sunny are facing trial on the allegations of the prosecution that on 05.07.2013 at about 12.10am at C- Hexagon, outer circle, India Gate, New Delhi within the jurisdiction of PS Tilak Marg, they along with their co accused juvenile 'X' were coming on a modified bullet motorcycle without any registration number plate, they were not wearing any helmets, the said motorcycle was being driven by accused Vinay Gautam @ Sunny, the accused persons were signalled to stop the motorcycle by officiating police officers at the barricades, however, at the exhortion of accused Praveen and 'X', accused Vinay Gautam @ Sunny did not stop the said motorcycle upon the signal given by Ct Nitin, accelerated the speed of the motorcycle and hit it against HC Jagdish Chand being the public servant was performing the duty on the said barricades, as a result of the SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 3 of 21 impact, HC Jagdish Chand jumped in the air, fell down on the road, received multiple injuries all over his body (grievous) and thus they obstructed the public servant (police officials) in discharge of their public duties and voluntarily assaulted or used criminal force upon HC Jagdish Chand who was a public servant while executing his duties with an intent to deter him from discharging his duty as such public servant by hitting them with a fast speeding motorcycle and also attempted to murder him i.e. committed the above said act with such intention or knowledge and under such circumstances that if they by that act had caused the death of HC Jagdish Chand, they would be guilty of murder and thereby committed offences punishable u/s 186/353/307/34 IPC.
The charge was framed by Ld. Predecessor of this court on 09.10.2014 to which the accused persons pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
7 The prosecution in support of its case has examined total 12 witnesses and thereafter the prosecution evidence was closed.
8 PW-1 Ct Nitin is the complainant of the case and one of the eye witnesses of the case incident. His statement dated 05.07.2013 upon which the case FIR was registered has been proved as Ex PW1/A. The site plan of the spot dated 05.07.2013 which was prepared at his instance by PW 11/IO has been proved as Ex PW1/B. The seizure memo of modified motorcycle bullet type of black colour in accidental condition ( which was being driven by the accused Vinay Gautam @ Sunny at the time of the accident ) with broken head lights and keys has been proved as ExPW1/C. The arrest memo and personal search memo of accused Praveen has been proved as Ex PW1/D and Ex PW1/D1 respectively. The arrest memo and personal search memo of accused Vinay Gautam @ Sunny has been proved as Ex PW1/E and Ex PW1/E1 respectively. The above said vehicle/modified bullet type motorcycle has been proved as Ex P-1. His testimony would be discussed during the course of the judgment. 9 PW2 H.C. Gangavir is a formal witness who has deposed that he was on duty at PCR vehicle and at about 12.10a.m.after receipt of information relating to injury caused to police official due to accident, he reached at the spot along with staff and SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 4 of 21 vehicle and took injured H.C. Jagdish/PW8 to RML hospital for treatment.
In cross examination by ld defence counsel, he deposed that he had no knowledge about the case except as deposed by him in his examination in chief. 10 PW3 ASI Rajender is also an eye witness of the case incident who was posted at the spot along with PW1, PW10 Ct. Chander Bhan, Ct. Abhimanyu and PW8 Jagdish at C-hexagon, outer circle, India Gate and were checking the vehicles after putting the barricades. He also identified the offending vehicle/modified bullet motorcycle as Ex P-1. His testimony would also be discussed during the course of the judgment.
11 PW4 Ms. Anita Kumari is the Principal EDMCD Primary Model School, Khichripur, Delhi. She has proved the school record qua the accused Vinay Gautam @ Sunny as Ex PW4/A and Ex PW4/B-1 to Ex PW4/B-4. As per said record, the date of birth of accused Vinay Gautam @ Sunny is 11.03.1995 i.e. he was major at the time of case incident.
12 PW5 Ct.Narrotam has deposed to the effect that on 05.07.2013 at about 12.10a.m after receipt of DD no. 3A he joined the investigation with IO SI Mahender Kumar/PW11 and reached at the spot where injured had already been taken by PCR to RML hospital. He deposed that IO left him at the spot, IO went to RML hospital, IO returned at the spot from RML hospital with tehrir Ex PW1/A and prepared the rukka. Rukka was handed over to PW5 for registration of the case. He went to PS, got the case FIR registered, went back to the spot and handed over the original rukka and copy of FIR to the IO. He deposed that after that the IO arrested the above said two accused persons and juvenile "X".
In cross examination by ld defence counsel, PW5 deposed that the distance between the spot and the police station was half kilometer and he remained present at the spot till 04.30 a.m. He deposed that when he reached at the spot, the accused were found in custody of outer staff as well as traffic staff. He also deposed that IO had returned from RML to the spot with Ct. Nitin. He deposed that IO recorded the statement of Ct. Nitin, Ct. Abhimanyu and two ZO's who were present at the spot in SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 5 of 21 his presence. He admitted that CCTVs were installed near the spot and that injured Ct. Jagdish was also posted at PS Tilak Marg at the time of incident. He denied that being a colleague of injured he was deposing falsely at the instance of the IO. 13 PW6 Dr. Geetanjali deposed that on 05.07.2013 she was posted as Senior Medical Officer in Dr. RML hospital, she was working in emergency and one H.C. Jagdish was brought to the hospital for his medical examination. The MLC dated 05.07.2013 at 12.35 a.m of injured H.C. Jagdish of Dr. RML hospital has been proved as Ex PW6/A bearing signatures of PW6 at point A. 14 PW7 SI Ajit Singh has deposed that on the intervening night of 4/5-07-2013 he was posed at Police Station Tilak Marg as duty officer with duty timings from 12 mid night to 08.00 a.m. He deposed that PW5 Ct. Narrotam handed over a rukka Ex PW1/A to him with endorsement of the IO for registration of the case. PW7 recorded the case FIR Ex PW7/A, made endorsement Ex PW7/B on the rukka and handed over the copy of FIR and original tehrir to PW5 for handing over the same to the IO. PW7 also recorded DD no. 3A on 05.07.2013 which is Ex PW7/C. PW7 also recorded DD no. 6A dated 05.07.2013 which is Ex PW7/D. In cross examination by ld defence counsel, PW7 deposed that he had only made entry at point "B" on Ex PW7/B and rest of the handwriting or any cutting would have been done either by the IO or some one else at his instance. In his cross examination, he deposed that he recorded DD no. 3A Ex PW7/C at 12.20a.m. 15 PW8 HC Jagdish Chand H.Ct. Jagdish Chand is the most material witness for the prosecution being the injured of the case incident. His testimony would also be discussed during the course of the judgment.
16 PW9 Sh Jai Parkash is the record clerk Dr. RML hospital, New Delhi who has deposed on behalf of Dr. Sachin Khandelwal that said doctor has left the services of the hospital and his present whereabouts are not known. He deposed that as per MLC record, on 06.08.2013 Dr. Sachin Khandelwal, the then Senior Resident of Unit Surgery-I Dr RML hospital, opined the nature of injury on the MLC Ex PW6/A of H.Ct. Jagdish as grievous. He deposed that he could identify the signatures of Dr. Sachin SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 6 of 21 Khandelwal at point 'B' on Ex PW6/A as he had seen him writing and signing during the course of official duties.
In cross examination by ld defence counsel, PW9 admitted that neither the MLC was prepared in his presence nor any signatures on it were done in his presence. He volunteered that he was deposing as per record and he has seen Dr. Sachin Khandelwal writing and signing during the course of his official duties. 17 PW10 Ct. Chander Bhan is also a police official who was posted at the spot at the time of incident and is an eye witness of the case incident. He has also deposed on the lines of testimony of other police officials/eye witnesses and his testimony would also be discussed along with other witnesses at the relevant stage of the judgment.
18 PW11 SI Mahender Kumar is the IO of the case. The rukka which was prepared by PW11 at the spot of PW1 Ct. Nitin has been proved as Ex PW11/A. He has deposed on the lines of other prosecution witnesses and his evidence shall be discussed during the course of the judgment. He also deposed that he obtained the sanction u/s 195 Cr.P.C for prosecution of the accused persons from the concerned ACP. After completing the investigation PW11 filed the charge sheet in the court through SHO concerned.
19 PW12 DSP Pawan Kumar was posted as ACP PS Connaught Place on 29.08.2013 and deposed that on that day he had given the complaint u/s 195 Cr.PC for prosecution of accused persons namely Vinay Gautam @ Sunny and Praveen u/s 186/353/307/34 IPC PS Tilak Marg. The complaint has been proved as Ex PW12/A. In cross examination by ld defence counsel, PW12 denied the suggestion that he gave a false complaint under section 195 Cr.P.C as the injured persons were police officials or that the injured persons being police officials furnished wrong information before him on the basis of which the said complaint under section 195 Cr.P.C was made.
20 The statement of accused persons under section 313 Cr.PC was recorded in which they denied all the material incriminating circumstances appearing in the SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 7 of 21 prosecution evidence on record against them and stated that they are innocent and had been falsely implicated in the present case. They further stated that they along with JICL "X" were coming on a bullet motorcycle being driven by accused Vinay Gautam @ Sunny, they were signaled to stop by the police officials at the barricades, they wanted to stop the motorcycle, however, PW8 H.C. Jagdish Chand put a danda in the front wheel of their motorcycle due to which they lost their balance and the motorcycle struck against the barricades. They stated that they were apprehended by the police officials at the spot and were made to sit down there. They further stated that one four wheeler i.e. a car which was coming from behind on a very high speed struck against H.C.Jagdish Chand due to which he received injuries, the police officials at the spot tried to stop the car but the car fled away from the spot and the police officials including H.C. Jagdish Chand / PW8 falsely implicated them in the present case. Both the said accused persons did not prefer to lead any DE. 21 I have heard the final arguments and perused the record.
22 Ld. Addl. PP for the State argued that the prosecution has been successful in proving the guilt of accused persons beyond reasonable doubt. He argued that the material prosecution witnesses including the complainant/PW1/eye witness, PW3 ASI Rajender/eye witness, PW10 Ct Chander Bhan/ eye witness and PW8 HC Jagdish Chand/injured have supported the case of prosecution in material terms and have corroborated the testimony of each other. He argued that PW8 is an injured witness, he is a reliable witness and no doubt can be raised over his testimony including the testimony of other eye witnesses. He argued that no circumstance has been shown by the defence as to why the injured and other police officials would falsely implicate the accused persons. He contended that the act of accused persons would fall u/s 307/34 IPC as they knew that it was so imminently dangerous that it would in all probability caused the death of PW8. He argued that even if the court finds that Section 307/34 IPC is not proved against the accused persons, even then, Section 333/34 IPC i.e. voluntarily causing grievous hurt to deter public servant from his duty would be made out against the accused persons as they voluntarily caused grievous SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 8 of 21 hurt to PW8, a public servant being a police official, while he was discharging his official duties as such public servant. He argued that the offences u/s 186/353/34IPC also stands proved beyond reasonable doubt against the accused persons from the testimony of the prosecution witnesses as the accused persons in furtherance of their common intention voluntarily obstructed the police officials/public servants including PW1 and PW8 in discharge of their public functions and also used criminal force against PW8, a public servant, while he was executing his duties as such public servant with an intent to prevent or deter him from discharging his such duties. He also referred to complaint u/s 195 CrPC ExPW12/A in that regard. He contended that the defence taken by the accused persons in their statements u/s 313 CrPC to the effect that one four wheeler car had caused the case accident had not been substantiated by them as they have preferred not to lead any defence evidence. He thus argued that as the prosecution has proved its case against the accused persons beyond reasonable doubt, hence, they be convicted in this case.
23 The Ld. defence counsel on the other hand argued that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. He contended that there was no motive with the accused persons to commit the case offence. He also argued that even there was no intention attributed to the accused persons for committing the case offence. He contended that the prosecution has failed to show any previous enmity or any previous acquaintance between the accused persons and the injured/PW8. He referred to the testimony of prosecution witnesses and argued that even though the alleged spot was covered with CCTV still no CCTV footage was collected during the investigation. He also referred to the defence taken by the accused persons in their statements u/s 313 CrPC and argued that one car had hit PW8 due to which he received injuries, the incident was not caused with the motorcycle being driven by accused Vinay Gautam @ Sunny and the accused persons were falsely implicated in this case. He also contended that the prosecution has not proved any photograph of the spot on record. He contended that no public witness was associated with the investigation and all the witnesses were of SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 9 of 21 the same PS and hence unreliable. He contended that offence u/s 307 IPC would not be attracted as the prosecution has failed to show that the accused persons had the knowledge and no knowledge can be presumed to the effect that the alleged act was so imminently dangerous as would have caused death of PW8 in all the probability. He argued that the minor offence u/s 333 IPC vis-a-vis Section 307 IPC would also not be attracted as the alleged act was not done by the accused persons but the incident occurred with a car. He further contended that even if the story of the prosecution is admitted as true, the prosecution has failed to prove any intention or knowledge or any voluntary act on part of accused persons. He thus argued that the accused persons be acquitted in this case u/s 186/353/34 IPC and u/s 307/34 or in the alternative, u/s 333/34 IPC.
24 The case of the prosecution in nutshell is that in the intervening night of 04/05.07.2013 at about 12.10am at C-Hexagon, outer circle, India gate, New Delhi, the accused persons alongwith juvenile 'X' were riding on a modified bullet motorcycle Ex P1 being driven by accused Vinay Gautam @ Sunny, the police officials including PW1 Ct Nitin, PW3 ASI Rajender, PW8 HC Jagdish Chand and PW10 Ct Chander Bhan along with others were on govt duty at the barricades at the said spot, PW1 Ct Nitin/complainant signalled the accused persons to stop the said motorcycle but upon exhortation of accused Praveen and juvenile 'X', the accused Vinay Gautam @ Sunny instead of stopping the said motorcycle, accelerated it and hit it at the private parts of PW8 HC Jagdish Chand, who being a public servant was performing his duty at the said barricades and consequently caused him grievous hurt. The accused persons in furtherance of their common intention thus obstructed public servants in discharge of their public functions, used criminal force against PW8 (govt servant) during the execution of his duty as such public servant with an intent to prevent or deter him from discharging his duties as such public servant, caused grievous hurt to him and attempted to murder him thereby committing offences punishable u/s 186/353/307/34 IPC.
25 The prosecution has examined four material witnesses who are the eye SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 10 of 21 witnesses of the case incident i.e. PW1/complainant, PW3 ASI Rajender, PW8 HC Jagdish Chand/injured and PW10 Ct Chander Bhan.
26 PW1 Ct Nitin has deposed to the effect that on 04.07.2013 he alongwith PW3, PW8, PW10 and Ct Abhimanyu were deputed at C-Hexagon, outer circle, India gate, New Delhi and were checking the vehicles after putting barricades. He deposed that one motorcycle was coming from the side of Baroda house on which three persons were riding, he signalled to stop the same as besides triple riding it was without registration number on the front side and PW8 HC Jagdish Chand was standing behind him. He deposed that he took one-two steps ahead in front of the barricades so that the vehicle can be stopped, the motorcyclist dodged him, it went past him, two persons on the motorcycle who were pillion riders exhorted the rider of the motorcycle to hit the police officials by saying 'udade in sale police walo ko' and after hearing it the rider increased the speed of the motorcycle and hit PW8 HC Jagdish Chand straight with his motorcycle as a result of which PW8 jumped into the air, fell on the road, sustained injuries and became unconscious. He deposed that the motorcycle fell down on the ground and the pillion riders who wanted to flee were apprehended along with the rider of the motorcycle with the help of other staff members. He correctly identified the accused Vinay Gautam @ Sunny as the rider of the motorcycle and accused Praveen as one of the pillion rider, whereas, the third person was facing trial before the Ld. JJB court. The said motorcycle has been proved as Ex P1.
In cross-examination by ld. defence counsel, PW1 inter alia deposed that his statement was recorded at the spot. He deposed that he did not know all the three persons (accused persons) who were riding the motorcycle. He admitted that after the incident, the motorcycle was bound to fall down and in such a situation the rider of the motorcycle was also likely to get injury. He did not know if the accused persons were got medically examined by the IO or not. He admitted that there was CCTV coverage at the spot. He deposed that he did not ask the IO to take CCTV footage. PW1 did not know that none of the accused was the owner of the motorcycle Ex P1. He admitted that all the eye witnesses of the incident were the police officials of PS Tilak SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 11 of 21 Marg who were on duty. He deposed that he was facing the motorcycle when he had signalled the rider to stop it, the distance between him and PW8 was about 4-5 ft and the barricade was at a distance of about 15 ft. from them. He admitted that whenever barricades are put on the road for checking, the available passage on the road becomes curvy and narrower. He denied the suggestion of the defence that the accused persons were the pedestrians who were coming from India gate side. He further denied the suggestion that some other vehicle had hit HC Jagdish Chand or that the accused persons were falsely implicated in this case. He denied the suggestion that the way he and PW8 were standing, in all probabilities he would have been injured instead of PW8. He admitted that only the head light of the bike got damaged in the said incident.
27 PW3 ASI Rajender has also deposed on the lines of the testimony of PW1/complainant. He also inter alia deposed that one motorcycle was signalled to stop by PW1 since it was a case of triple riding and no registration number plate on front side but it did not stop. He deposed that two persons who were the pillion riders of the said motorcycle exhorted the rider of the motorcycle to hit us by saying 'udade in sale police walo ko', after hearing that the rider of the motorcycle increased the speed of the motorcycle and hit PW8 straight with his motorcycle as a result of which PW8 jumped into air, fell on the road due to which he sustained injuries and became unconscious. The motorcycle fell down on the ground and all three were apprehended with the help of the other staff members. He has also correctly identified accused Vinay Gautam @ Sunny as the rider of said motorcycle and accused Praveen as one of the pillion rider with one juvenile 'X'. He also correctly identified the motorcycle Ex P1.
He was also cross examined by Ld. Addl. PP for the State on some issues but nothing material has cropped up in it against the prosecution.
In cross-examination by ld. defence counsel, PW3 deposed on the lines of testimony of PW1. He also denied the suggestion that accused persons were the pedestrians who were coming from India gate side or that some other vehicle had hit SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 12 of 21 PW8 or that the accused persons were falsely implicated in this case. 28 PW10 Ct Chander Bhan is one another eye witness of the case incident who was deputed at the spot and has deposed on the lines of PW1 and PW3 regarding the incident.
In cross-examination by ld. defence counsel, PW10 deposed that he did not notice any visible injury on the body of accused persons at the time of their arrest and admitted that pillion riders might sustain injuries in case of in major accident. He admitted that IO did not take the accused persons to hospital for their medical examination in his presence. He denied the suggestion that he did not hear the words 'udado in sale police walo ko'. He admitted that PW8 was standing at a distance of about 15-20 steps behind PW1. He denied the suggestion that the motorcycle of accused persons hit the barricades installed there. He further denied the suggestion that PW8 was hit by another vehicle and not by the motorcycle of accused persons or that the accused persons were wrongly apprehended in this case. 29 PW8 HC Jagdish Chand is the most material witness being the injured of the case incident. He deposed that in the intervening night of 04/05.07.2013 he was on picket duty from 10pm to 8am at C-Hexagon, outer circle, Tilak Marg, New Delhi along with PW1, PW3, PW10 and Ct Abhimanyu. He deposed that on 05.07.2013 at about 12.10am one modified bullet type bike came from the side of Baroda house on which three persons were riding without wearing helmets, the said bike had no number plate in its front side, there were barricades for checking the vehicles, PW1 was standing there and he was standing behind him. He deposed that PW1 raised his hand as a signal to stop the said bike, the persons riding on the bike said something which he could not hear being at some distance, thereafter the driver of the said bike hit the bike exactly between his legs on his private parts and due to the said impact he fell down and lost his consciousness. He deposed that he regained his consciousness in the RML hospital at about 8am, his statement was not recorded on that day as he was not feeling well and subsequently his statement was recorded by the IO on 20.07.2013. He also correctly identified the accused Vinay Gautam @ Sunny as the person who SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 13 of 21 was riding the said offending vehicle and accused Praveen as the one who was sitting as a pillion rider immediately after accused Vinay Gautam @ Sunny i.e. in the middle of the motorcycle between accused Vinay Gautam @ Sunny and juvenile X. The identity of said bike Ex P1 was not disputed by the defence during the testimony of PW8. Ld. Addl. PP for the State had put some leading questions to the witness with the permission of the court in which PW8 deposed that he did not hear that the accused Praveen and juvenile X shouted 'udado in sale police walo ko' when PW1 signalled them to stop. He volunteered to the effect that he was at some distance behind PW1 and therefore could not hear what the accused persons were saying. He deposed that accused Vinay Gautam @ Sunny after hearing his two associates increased the speed of the bike Ex P1 and after saving PW1 hit the said bike in him (PW8) due to which he sustained grievous injuries. He volunteered that he remained under treatment after the incident from 05.07.2013 to 04.12.2013. He deposed that he could not remember this fact earlier as he was under mental trauma even till the date of his testimony as a consequence of said incident.
In cross-examination by ld. defence counsel, PW8 inter alia deposed that he did not know or had any acquaintance with the accused persons prior to the case incident. He deposed that at the time of case incident, he was standing behind PW1. He denied the suggestion that when a vehicle was coming at a fast speed towards a person, then said person would not be able to recognize the persons riding the vehicle due to its speed. He volunteered that as the vehicle was coming just in front of him, therefore he was able to identify the accused persons. He admitted that some CCTV cameras were installed at the spot. He could not say as to why the IO has not placed any CCTV footage on record. He denied the suggestion of defence that he got the injuries from some other vehicle and not case bike Ex P1. He further denied the suggestion that the accused persons and 'X' had been stopped by them to do some enquiry or that in the meanwhile, some other vehicle came and hit him or that as they were not able to catch the said offending vehicle, therefore, the accused persons were falsely implicated in this case. He also deposed that he was discharged from the SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 14 of 21 hospital in the night of 18.07.2013 and on the next day i.e. 19.07.2013 he left for his native village at Himachal Pradesh. He deposed that neither the IO nor any police official came at his native village at any point of time and that he was fit for giving his statement from the afternoon of 05.07.2013.
30 PW1, PW3, PW8 and PW10 have all corroborated each other on the material facts of the case incident to the effect that they all being police officials were on official duty of checking the vehicles by putting barricades at C-Hexagon, outer circle, India gate, New Delhi, the accused persons came riding on a modified bike Ex P1, the accused persons were triple riding on the said bike without front number plate being driven by accused Vinay Gautam @ Sunny, whereas, accused Praveen and 'X' were pillion riders, PW1 gave the signal to the accused persons to stop the bike, the accused Praveen and X exhorted accused Vinay Gautam @ Sunny by saying 'udade in sale police walo ko', the accused persons dodged PW1, they accelerated the speed of the bike and hit it straight into PW8 between his legs on his private parts, due to said impact PW8 jumped in the air, fell on the road, sustained injuries and became unconscious. They have also deposed to the effect that the said motorcycle fell on the ground and both the accused persons along with X were apprehended. All the said witnesses have also correctly identified the accused persons and the said bike Ex P1. PW6 Dr Geetanjali and PW9 have proved the MLC of injured / PW8 as Ex PW6/A and nature of injuries which shows that PW8 suffered grievous hurt in the incident. The X- ray report attached with the MLC shows that PW8 suffered fracture of right iliac bone and fracture of acetabulam (ischiopubic bone). All the said witnesses along with injured are eye witnesses of the case incident and have corroborated each other in material terms. Nothing substantial has appeared in their cross-examination to discredit their testimony. Their presence at the spot has also not been disputed by the defence in their cross-examination. Accused persons in their statements u/s 313 CrPC have also admitted that they were riding the motorcycle, were at the spot at the relevant time and PW8 / injured HC Jagdish Chand was also present at the spot at relevant time. It has also been deposed in cross examination by the said witnesses SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 15 of 21 that they did not know all the three persons who were riding the motorcycle i.e. the defence has failed to show any previous animosity between the witnesses and the accused persons. The said eye witnesses including the injured are reliable witnesses and it would not make any difference if at the relevant time the injured / PW8 and other eye witnesses i.e. PW1, PW3 and PW10 were posted in the same PS. There is also no merits in the arguments of the ld. defence counsel that as the prosecution has failed to show any previous enmity or any previous acquaintance between the accused persons and the injured/PW8, therefore, the case of the prosecution was bound to fail. The said witnesses including PW8 are reliable witnesses, have corroborated each other in material terms, are natural witnesses being present at the spot for checking the vehicles at the barricades and even their presence at the spot has not been disputed by the defence. Further, PW8 is a injured witness. The Hon'ble Supreme Court of India in the case of State of Uttar Pradesh Vs. Naresh & Others, ( 2011) 4 SCC 324 regarding the reliability of an injured witness has inter alia held as follows :-
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence can not be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends supports to his testimony that he was present during the occurrence. Thus , the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
In the present case, PW8 is an injured witness, his presence at the spot can not be doubted and in fact has not been disputed by the defence, his statement is very SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 16 of 21 reliable and there are no grounds for the rejection of his evidence which is further corroborated by the testimony of PW1, PW3 and PW10. There are also no major contradictions and discrepancies in the testimony of PW1, PW3, PW8 and PW10. Some minor variations in their testimony would not at all prejudicially affect their credibility. PW12 has also proved the complaint u/s 195 CrPC against the accused persons for their prosecution u/s 186/353/307/34 IPC as Ex PW12/A. From the above said discussion, the prosecution has thus been able to prove beyond reasonable doubt that at the above mentioned place, time and manner the accused persons in furtherance of their common intention voluntarily obstructed the above said public servants (police officials) in discharge of their public functions, used criminal force against PW8 (a public servant being a police official) in the execution of his duty as such public servant with an intent to prevent or deter him from discharging his duty as such public servant and voluntarily caused grievous hurt to PW8 (a public servant being a police official) in the discharge of his duty as such public servant with an intent to prevent or deter him from discharging his duty as such public servant or in consequence of anything done or attempted to be done by PW8 in the lawful discharge of his duty as such public servant. The prosecution has thus been able to prove beyond reasonable doubt that both the accused persons in furtherance of their common intention with X committed offences punishable u/s 186/353/333/34 IPC. 31 As far as Section 307 IPC is concerned, it is evident from the testimony of the prosecution witnesses including PW1, PW3, PW8 and PW10 that there was no intention on the part of the accused persons to cause death of PW8/injured. From the peculiar facts of the case, a knowledge can also not be fastened upon the accused persons to the effect that they knew that their act of hitting the bike Ex P1 with PW8 was so imminently dangerous that it must in all probability would have caused his death or would have caused such bodily injury as was likely to cause death. The prosecution has thus failed to prove beyond reasonable doubt the ingredients of the offence u/s 307 IPC against the accused persons and hence, the accused persons are liable to be acquitted in the present case u/s 307 IPC.
SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 17 of 21 32 It has been discussed above that the prosecution has been able to prove its case against the accused persons also inter alia u/s 333/34 IPC to the effect that they in furtherance of their common intention voluntarily caused grievous hurt to PW8, a public servant, to deter him from discharging his duty and in consequence of anything done or attempted to be done by him in the lawful discharge of his duty as such public servant. This court is conscious of the fact that no charge u/s 333/34 IPC has been framed against accused persons and the charge framed against the accused persons by the ld. Predecessor of this court was u/s 186/353/307/34 IPC. In that regard, it is pertinent to note that even though the charge u/s 333/34 IPC was not specifically framed in this case but all the particulars of said section were mentioned in the charge itself and therefore no prejudice whatsoever has been caused to the accused persons and further they were totally aware about the ingredients of offence u/s 333 IPC from the very start during the entire trial. The offence u/s 307 IPC with hurt being caused to a person carries sentence upto imprisonment for life, whereas, the offence u/s 333 IPC carries sentence which may extend to 10 years. Both the said offences i.e. u/s 307 IPC and u/s 333 IPC fall under chapter XVI of The Indian Penal Code qua offences affecting the human body. It is thus evident that section 333 IPC is a minor offence vis- a-vis the major offence u/s 307 IPC. Further, it is a settled law that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed [in terms of Section 222 CrPC]. Reference in this regard is made to be decisions of Hon'ble Apex Court in cases Pandharinath vs State Of Maharashtra, CRIMINAL APPEAL NO. 729 OF 2003 dated 6 July, 2009, State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.
33 Ld. defence counsel argued that there was no motive with accused persons to commit the case offence. This argument of the Ld. defence counsel is liable to be rejected as the motive pales into insignificance in the presence of eye witnesses. In the present case, as discussed above, there are three eye witnesses besides an SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 18 of 21 injured.
34 The Ld. defence counsel referred to the testimony of prosecution witnesses and argued that even though the alleged spot was covered with CCTV still no CCTV footage was collected during investigation and that the photographs of the spot have also not been proved on record. In that regard, the testimony of PW11/IO is important, wherein, in his cross-examination he has admitted that the spot was not got photographed by him. PW11 further deposed in his cross-examination that the spot was covered with various CCTV cameras. He deposed that he had not seized the CCTV footage of the accident, however, he had checked the CCTV footage and at that time, he had found that the place of incident was not covered by CCTV cameras as the CCTV cameras were motion cameras as distinguished from static cameras. The absence of photographs of the spot would not dealt the case of the prosecution in view of the reliable testimony of the eye witnesses and the injured. Further, as mentioned above, the IO has clarified and deposed to the effect that although the spot was covered by CCTV cameras but he did not seize the CCTV footage as upon checking it was found that place of incident was not covered by CCTV cameras as they were motion cameras as distinguished from static cameras. It is thus not a lapse in the investigation by the IO. There is thus no merits in these submissions of the Ld. Defence counsel and they are liable to be rejected.
35 The Ld. defence counsel further contended that one car had hit PW8 due to which he received injuries, the incident was not caused with the motorcycle Ex P1 being driven by accused Vinay Gautam @ Sunny and the accused persons have been falsely implicated in this case.
Per contra, Ld. Addl. PP for the State argued that the said defence taken by the accused persons in their statements u/s 313 CrPC has not been substantiated by them as they have preferred not to lead any defence evidence.
Perusal of record would show that both the accused persons took a defence in their respective statements u/s 313 CrPC to the effect that they along with X were coming on the said motorcycle, accused Vinay Gautam @ Sunny was driving the said SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 19 of 21 motorcycle, they were signalled to stop by the police officials at the barricades, they wanted to stop the motorcycle, however, PW8 put a danda in the front wheel of their motorcycle due to which they lost their balance, the motorcycle struck against the barricades, they were apprehended by the police officials at the spot and were made to sit down there. They further stated that one four wheeler i.e. a car which was coming from behind at a very high speed struck against PW8 due to which he received injuries, the police officials at the spot tried to stop that car but that car fled away from the spot and the police officials including PW8 falsely implicated them in this case. Both the accused persons further preferred not to lead any defence evidence.
It is pertinent to note that in their statements u/s 313 CrPC the accused persons have taken a stand that they were driving the said motorcycle and it struck against the barricades. This statement is in total contradiction to the defence taken by the accused persons in the cross-examination of PW1 and PW3 wherein a suggestion was put to them that the accused persons were the pedestrians who were coming from India gate side which was denied by PW1 and PW3. Further, the defence of the motorcycle Ex P1 hitting against the barricades was not put to any material prosecution witnesses during his cross-examination. It is thus evident that the accused persons have tried to take different and false defences. Further, the accused persons have preferred not to lead any defence evidence to substantiate their defence as taken in their respective statements u/s 313 CrPC.
36 In view of the above said discussion, the prosecution has proved beyond reasonable doubt that on 05.07.2013 at about 12.10am at C-Hexagon, outer circle, India gate, New Delhi, both the accused persons who are facing trial in this case in furtherance of their common intention along with their associate X did not stop the vehicle (modified bullet motorcycle) Ex P1 (being driven by accused Vinay Gautam @ Sunny with accused Praveen and X as pillion) on the signal of PW1/complainant Ct Nitin who being a police official was a public servant and was discharging his duties as such public servant thus voluntarily obstructed the public servants in discharge of their public functions, used criminal force to PW8 HC Jagdish Chand another public servant SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 20 of 21 being a police official who was also present there at the barricades in the execution of his duty with an intent to prevent and deter him from discharging his duty as such public servant and voluntarily caused grievous hurt to him being a public servant in the discharge of his duty as such public servant with an intent to prevent and deter him from discharging his duty as such public servant. Both the above said accused persons namely Vinay Gautam @ Sunny and Praveen are thus liable to be convicted and are thus convicted u/s 186/353/333/34 IPC.
37 The case property of the present case, if any lying at PS Tilak Marg is confiscated to the State and be disposed of as per rules. The superdaginama, if any of the case property is discharged.
38 Let the convicts be heard on the quantum of sentence.
Announced in the open
Court on 23.12.2016 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI
SC No. 44/3/14 FIR no. 114/13 State Vs. Praveen & Anr. Pages 21 of 21