Delhi District Court
State vs . 1. Rinku S/O Asha Ram on 29 July, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No. 139/08
FIR No. 218/03
PS Sultan Puri
U/s 307/201/34 IPC
ID No. 02404R6286012004
State Vs. 1. Rinku S/o Asha Ram
R/o RZ-100, Roshan Garden,
Najafgarh, Delhi.
2. Rinku S/o Shyam Lal
R/o Kachi Colony, near Indira Jheel,
G Block Sultan Puri, Delhi.
3. Sunil S/o Munshi Ram (Since dead, proceedings
abated against him on 15.1.09.)
R/o H.No.305, Gali No.5, Rattan Vihar, Delhi.
4. Ravinder @ Bhalu S/o Jeewan Lal
R/o 269, Gali No. 5, Rattan Vihar,
Sultan Puri, Delhi.
Date of Institution in Sessions Court : 29.04.2004
Date of transfer to this Court : 05.12.2008
Date of Judgment : 23.07.2010
SC No. 137/08
FIR No. 235/03
PS Sultan Puri
U/s 25/54/59 Arms Act
ID No. 02404R1000012003
State Vs. Rinku S/o Shyam Lal
St. Vs. Rinku etc. P.S.Sultan Puri
2
R/o Kachi Colony, near Indira Jheel,
G Block Sultan Puri, Delhi.
Date of Institution in Sessions Court : 30.05.2007
Date of transfer to this Court : 05.12.2008
Date of Judgment : 23.07.2010
SC No. 138/08
FIR No. 236/03
PS Sultan Puri
U/s 25/54/59 Arms Act
ID No. 02404R1000002003
State Vs. Rinku S/o Asha Ram
R/o RZ-100, Roshan Garden,
Najafgarh, Delhi.
Date of Institution in Sessions Court : 30.05.2007
Date of transfer to this Court : 05.12.2008
Date of Judgment : 23.07.2010
JUDGEMENT
1. Vide this common judgment, I would dispose off all the three FIR(s) No. 218/03, 235/03 and 236/03, as common question of fact and law arise in the aforesaid FIR(s) which are inter-connected with each other.
2. In brief, the prosecution story is that on 7.3.03 a DD No. 8B was received at P.S. Sultan Puri through constable Raja Ram, that St. Vs. Rinku etc. P.S.Sultan Puri 3 one Rajender and Davender had been admitted in the said Hospital with stab injuries by knife by one Jai Narayan. The said information was passed on to SI Gulshan Nagpal, who alongwith constable Ranbir Singh reached the hospital and obtained the MLC No. 666 of injured Davender and MLC No. 667 of injured Rajender, which MLC(s) were incomplete, and injured persons were admitted in the said hospital with the alleged history of physical assault.
Constable Raja Ram informed SI Gulshan Nagpal that the injured had been further referred to Jaipur Golden Hospital. Consequently, SI Gulshan Nagpal reached there and at that time both the injured(s) were in the ICU of the hospital and one Jai Narain was present there,whose statement was recorded by the IO, who stated that:
"After retirement from Delhi Home Guards, he was working at P.S. Sultan Puri as Assistant in the Malkhana and alongwith him there was one more assistant Davender Mishra, who was working in the Malkhana as helper and yesterday i.e. 6.3.03 at St. Vs. Rinku etc. P.S.Sultan Puri 4 about 10.30p.m, he and Davender Mishra alongwith constable Rajender posted at P.S. Sultan Puri, after finishing their work had hired a rickshaw infront of P.S. at around 11p.m and when their rickshaw reached Kirari More, 4 persons had blocked the road and when the rickshaw puller gave a bell to them to get out of the way, at that time they stopped the rickshaw and started beating him. When they also got down and told those persons not to quarrel with him, they also started assaulting them and when constable Rajender said why they were quarreling with them, they were from the police staff, at this all the four persons got angry and said that they were having old enmity with the police and nobody can save them today. Thereafter, two persons caught hold of Rajender and Davender Mishra, whereas the other two took out a knife. On seeing the knife rickshaw puller ran away and one of those persons assaulted Davender Mishra with knife blows, who fell down and thereafter all the four persons started beating the constable Rajender, when he tried to stop them he was also St. Vs. Rinku etc. P.S.Sultan Puri 5 beaten up. Constable Rajender fell down and he also received injuries on his back and all of them were saying that no one would be spared.
Thereafter, he ran for help, but all the four persons pushed him, saying that they had already finished the other two and they would also kill him, if he lodged any complaint. Thereafter, he removed Rajender and Davender Mishra on the rickshaw to SGM Hospital, from where they were referred to Jaipur Golden Hospital.
3. On the said complaint, an FIR bearing No. 218/03 U/s 307/201/34 IPC was registered at P.S. Sultan Puri.
4. Thereafter, at the instance of the complainant, siteplan of the spot was prepared. MLC No(s) 666 and 667 were collected. The clothes of the injured were seized. The statement of the witnesses were recorded U/s 161 Cr.P.C.
5. Thereafter, accused persons were searched and on 10.3.03 one accused Rinku S/o Shyam Lal was arrested in FIR No. 235/03 U/s 25 Arms Act of P.S. Sultan Puri and similarly another accused St. Vs. Rinku etc. P.S.Sultan Puri 6 Rinku S/o Asha Ram was arrested in FIR No. 236/03 U/s 25 Arms Act of P.S. Sultan Puri and another accused Sunil was arrested in FIR No. 237/03 U/s 21 of N.D.P.S. Act of P.S. Sultan Puri and one more accused Ravinder @ Bhalu was also arrested in FIR No. 238/03 U/s 21 N.D.P.S. Act. All the aforesaid accused persons made a disclosure statement separately regarding their involvement in the FIR No. 218/03.
6. All the accused persons were arrested in the present case by the IO of this case SI Gulshan Nagpal and all the accused persons were directed to remain in muffled face and one of the accused Sunil got recovered the pant and shirt which he was allegedly wearing at the time of incident which was soiled with blood.
7. The TIP of all the accused persons was fixed, but all the accused persons refused to undergo TIP, despite warning that same may go against them during the trial.
8. Thereafter supplementary statement of the complainant was recorded, in which he identified all the accused persons and St. Vs. Rinku etc. P.S.Sultan Puri 7 thereafter IO also recorded the statement of injured Davender Mishra and Rajender on 14.3.03 after they were declared fit for statement.
9. The result on the MLC(s) was obtained as grievous. The relevant exhibits were sent to FSL Rohini for Forensic Evaluation.
10. After completion of the investigation(s), a charge sheet U/s 307/201/34 IPC read with Sec. 25 and 27 Arms Act was filed in the court.
11. Regarding the accused Rinku S/o Shyam Lal, a separate charge-sheet U/s 25 Arms Act was also filed separately in the court after completion of investigation(s) in case FIR No. 235/03.
12. Regarding the accused Rinku S/o Asha Ram, a separate charge-sheet U/s 25 Arms Act was also filed separately in the court after completion of investigation(s) in case FIR No. 236/03.
13. Upon committal of the case FIR No. 218/03 to the court of sessions, a charge U/s 307/34 IPC was framed against all the accused persons vide order dt. 11.5.2004, whereas an additional St. Vs. Rinku etc. P.S.Sultan Puri 8 charge U/s 201 IPC of the same date, was also framed against the accused Sunil, to which all the accused persons pleaded not guilty and claimed trial.
14. During the trial, one of the accused Sunil expired, consequently, vide order dt. 15.1.09 the proceedings against the said accused stood abated.
15. Thereafter, prosecution in support of its case has examined 26 witnesses in FIR No. 218/03.
PW1 is Prem Nath, rickshaw puller, who has turned hostile. PW2 is Sh. Devender Prasad, injured.
PW3 is Constable Rajender Singh another injured. PW4 is Jai Narayan, the complainant and the eye witness. PW5 is Constable Devender, who took some part in the investigation(s).
PW6 is H.C. Kali Charan, duty officer, who has proved the copy of the FIR Ex.PW6/A. St. Vs. Rinku etc. P.S.Sultan Puri 9 PW7 is HC Narender, who was the MHC(M) during the relevant time, who has proved the relevant entries of register No. 19.
PW8 is constable Udai Kumar, who has proved the DD No. 8B regarding the admission of injured persons in the SGM Hospital on 7.3.03.
PW9 is Constable Ranbir, who also took some part in the initial investigation(s) alongwith SI Gulshan Nagpal.
PW10 is Const. Raja Ram, who was working as duty constable at SGM Hospital on the date of incident.
PW11 is Dr. Poonam, who had prepared the MLC(s) of both the injured asEx.PW11/A and Ex.PW11/B on 7.3.03 at SGM hospital and she was also the member of the medical board, which was constituted to give subsequent opinion regarding the weapon of offence(s) i.e. knives which were allegedly recovered from the accused persons, and she has also proved the subsequent opinion of the Board in this regard as Ex.PW11/F. PW12 is Constable Sunder, the witness regarding the arrest of St. Vs. Rinku etc. P.S.Sultan Puri 10 accused Sunil and Ravinder@Bhalu on 10.3.03.
PW13 is SI Kaushal Ganguli, who was the second IO regarding the arrest of the accused in FIR No. 237/03.
PW14 is H.C. Gajinder, who was part of the police party, who had allegedly arrested both the accused persons Rinku S/o Shyam Lal and Rinku S/o Asha Ram on 10.3.03 from Sultan Puri area with knives.
PW15 is Constable Rajbir, who was also the member of the aforesaid police party.
PW16 is constable Pardeep, who was also the member of the police party which had arrested the accused Sunil and Ravinder on 10.3.03.
PW17 is SI Kailash Chander, who was the second IO in FIR No. 238/03 against the accused Ravinder @ Bhalu.
PW18 is Dr. P.S. Khatana, who was also the member of the board constituted for giving subsequent opinion qua the weapon of offence(s) as Ex.PW11/F. St. Vs. Rinku etc. P.S.Sultan Puri 11 PW19 is ASI Kaptan Singh, who was also the part of the police party, who had arrested the accused Sunil in case FIR No. 237/03.
PW20 is HC Yashbeer Singh, who was also the member of the police party, when both the accused persons Rinku S/o Shyam Lal and Rinku S/o Asha Ram were arrested on 10.3.03 from Sultan Puri area.
PW21 is H.C. Satnam Singh, who was also the member of the said police party and the first IO of FIR No. 236/03.
PW22 is Dr. A.K. Srivastava Asstt. Director Biology, FSL Rohini, who has proved the FSL report Ex.PW22/A and Ex.PW22/B. PW23 is Dr. S.Basu, Sr. Consultant Jaipur Golden Hospital, who had opined regarding the fitness of injured persons at Jaipur Golden Hospital on 14.3.03.
PW24 is ASI Ram Mehar, the second IO of FIR No. 236/03 against the accused Rinku S/o Asha Ram.
PW25 is H.C. Ram Avtar
St. Vs. Rinku etc. P.S.Sultan Puri
12
PW26 is SI Gulshan Nagpal, is the IO of this case, who has deposed about the investigation(s), as were carried out by him during the course of the present case.
16. Thereafter, separate statement of the accused persons U/s 313 Cr.P.C were recorded, in which the defence of the accused Rinku S/o Shyam Lal was that he had been falsely implicated in this case, and other cases alongwith his co accused persons. He also sought to lead defence evidence.
Similarly, the defence of another accused Rinku S/o Asha Ram was that he has been falsely implicated in this case alongwith his co accused persons and various false cases were registered against them and he also sought to lead defence evidence.
The accused Ravinder @ Bhalu also stated that the entire evidence lead by the prosecution was false and he had also been falsely implicated in this case alongwith his co-accused persons and they had also been falsely implicated in various other cases and he also sought to lead defence evidence.
St. Vs. Rinku etc. P.S.Sultan Puri 13
17. In defence, all the three accused persons have examined DW1 Dinesh Kumar, DW2 Deepak Kumar, as the accused Rinku S/O Shyam Lal has also taken the plea that he was present in the factory of DW1 at the time of his alleged arrest, and similarly DW2 Deepak Kumar has also been examined by accused Rinku S/o Asha Ram and Ravinder @ Bhalu, taking the plea that on 9.3.03 they were present in Distt. Narnaul Haryana. Accordingly, the accused persons have examined DW1 Dinesh Kumar and DW2 Deepak Kumar to falsify the claim of the prosecution that accused persons had been arrested on 10.3.03.
18. In FIR No. 235/03, the prosecution has examined PW1 H.C Gajender, but his examination in chief was deferred. Thereafter, it appears that he had been inadvertently again examined by the Ld. Predecessor as PW3. However, his cross-examination was deferred when he was examined in the second time. Consequently, his evidence can not be read.
PW2 is H.C. Dalbir Singh, who has also been examined again St. Vs. Rinku etc. P.S.Sultan Puri 14 after committal of the case as (previously it appears that the FIR No. 235/03 and 236/03 were pending in the court of Ld. M.M and they were committed to the court of Sessions vide order dt. 29.3.07 of the Ld. ASJ.
The prosecution has also examined HC Yashbeer Singh, who has also been inadvertently examined twice due to the committal of the case.
The prosecution has also examined HC Ram Avtar, whose evidence can not be read as his examination in chief was deferred and similarly prosecution has also examined PW5 HC Narender .
19. FIR No. 236/03, was also pending before the court of Ld. M.M and vide order dt. 29.3.07 of Ld. ASJ , it was also committed to the court of Sessions to be tried alongwith the case FIR No. 218/03. In the said case prosecution has examined HC Satnam Singh, PW HC Narender, HC Ram Mehar and HC Dalbir, who seems to have been again examined after committal of the above case.
20. In FIR No. 235/03 and 236/03, a separate charge U/s 25 Arms St. Vs. Rinku etc. P.S.Sultan Puri 15 Act was also framed against the accused Rinku S/o Shyam Lal and Rinku S/O Asha Ram, to which both the accused persons pleaded not guilty and claimed trial.
21. Separate statement of the accused persons U/s 313 Cr.P.C were also recorded in both the aforesaid FIR(s), in which the defence of the accused persons was that they had been falsely implicated in this case and other cases alognwith their co-accused persons and nothing was recovered from their possession and they lead defence evidence in these cases alongwith the main case bearing FIR No. 218/03.
22. I have heard Ld. Defence Counsel Sh. Ajay Kumar Chadha and Ld. Addl. PP for the state Sh. G.S. Guraya and have perused the record.
23. The Ld. Defence Counsel has argued that the entire prosecution story regarding the alleged incident dt. 6.3.03 was false and concocted and the same is evident from the testimony of PW1 Prem Nath, who has turned hostile and the testimony(s) of PW2 St. Vs. Rinku etc. P.S.Sultan Puri 16 Davender Prasad and PW4 Jai Narayan does not inspire any confidence as both of them have admitted that they were working illegally in the Mal Khana P.S. Sultan Puri as MHC(M), without any authority. He has also argued that there are number of material contradictions in the testimony of PW2 and PW4, which clearly belies the case of the prosecution and he also argued that the testimony of PW3 Constable Rajinder Singh is also not believable as no DD entry has been placed on the record to show that he was on duty on the date of incident at P.S. Sultan Puri.
24. He has also argued that the accused Ravinder @ Bhalu has already been acquitted in case of NDPS Act by the court of Competent Jurisdiction, which show that the entire prosecution story regarding the arrest of the accused was concocted one and he has also argued that the medical evidence does not inspire any confidence as in the testimony of PW11 Dr. Poonam, who prepared MLC's of the injured persons, found lacerated wounds on the body of the injured Rajender and Davender, which were not possible with St. Vs. Rinku etc. P.S.Sultan Puri 17 knives, which is the case of the prosecution and consequently, he has argued that the said fact goes into the substratum of the prosecution case.
25. He has further argued that admittedly in the present case none of the alleged eye witnesses to the incident PW2, PW3 and PW4 had identified the knife in question, nor the knives were sent to FSL to connect them with the alleged incident dt. 6.3.03 and he has also argued that in any case, the accused persons were allegedly arrested on 9.3.09 with the knives and their disclosure statements were recorded subsequent to the recovery of knives. The same is hit by Section 25 of the Indian Evidence Act, as no discovery of any fact had been made subsequent to the disclosure statement. He has also argued that there is no evidence that the said knives were used in the said incident dt. 6.3.03 except the disclosure statement of the accused persons. He has further argued that no public person was joined at the time of recovery. Accordingly, he has argued that the accused persons deserves acquittal.
St. Vs. Rinku etc. P.S.Sultan Puri 18
26. On the other hand, Ld. Addl. PP for the state submits that from the clear cut testimony of PW2, PW3 and PW4 regarding the incident dt. 6.3.03 in which they have also clearly identified the accused persons as the assailants, who had inflicted knife injuries upon PW2 and PW3 and nothing had come out in the cross- examination of the material prosecution witnesses, coupled with the fact that the testimony of PW11 Dr. Poonam and PW18 Dr. P.S. Khatana, also corroborates the direct evidence lead by the prosecution on record and from the testimony(s) of PW11 and PW18, it was clear that the said injuries which were received by PW2 Davender Prasad and PW3 Rajender Singh were stab injuries which were possible by knives and no other weapon. Consequently, he has argued that prosecution has been able to prove its case against the accused persons beyond any doubt.
27. Regarding the recovery and arrest, he has argued that it is not sine qua non that public witnesses should be joined in each and every investigation. Consequently, he has argued that the accused St. Vs. Rinku etc. P.S.Sultan Puri 19 persons deserve conviction U/s 307/34 IPC r/w Sec. 25 Arms Act.
28. I have gone through the rival contentions.
29. PW4 Jai Narain in his testimony has stated that on 6.3.03 he was working as helper in Malkhana and on that date at about 10.30p.m he alongwith constable Rajinder and Devender Mishra boarded a rickshaw near P.S. Sultan Puri for going to his house. At about 11p.m when they reached near Kirari Mor, four persons were going on the road by blocking the other passersby. Rickshaw puller gave ring but they did not hear the ring. Thereafter rickshaw puller raised voice for a side. On this all the four persons grappled with the said rickshaw puller. On this they stepped down from the rickshaw and tried to pacify the matter and constable Rajinder told them not to quarrel and disclosed his identity by saying that 'HUM STAFF SE HAIN' knowing this fact accused persons told that "POLICE SE TO HIM CHIDHATE HAIN" and saying so, two persons caught hold of constable Rajender and Devender Mishra and remaining two accused persons started inflicting knife blow St. Vs. Rinku etc. P.S.Sultan Puri 20 upon constable Rajinder. When he tried to save him, one of them pushed him and gave kick blow to him. Thereafter, they gave knife blows on the person of Rajender and thereafter he fell down and Rajender received knife injuries on his back. Rickshaw puller fled away from the spot and while running away from the spot they told "HAMANE DONO KO DHANDHA KAR DIYA HAI AGAR TUNE POLICE ME REPORT KI TO TUJHE BHI JAN SE MAR DENGE".
30. He further stated in his examination in chief that he can identify those persons, if shown to him and thereafter he statedthat the accused persons named as Rinku had caught hold of Rajender and Devender and accused Bholu @ Devender and Sunil had inflicted knife injuries on them and accused Rinku had kicked him. He further stated that when he came back to the spot after the accused persons had left, he lifted Rajender and Devender and put them in the same rickshaw and took them to SGM Hospital where first aid was given. Thereafter, they were shifted to Jaipur Golden Hospital in Ambulance . At Jaipur Golden Hospital SI Gulshan Nagpal came St. Vs. Rinku etc. P.S.Sultan Puri 21 and recorded his statement Ex.PW4/A. The testimony of PW4 the complainant is corroborated in material particulars by PW2 Devender Parsad who was another injured and by PW3 constable Rajender regarding the place, time and the manner of the incident. Both the PW2 and PW3 have also identified the accused persons as assailants who had inflicted knife injuries upon them.
31. The testimony of PW2, PW3 and PW4 converges on the point of identity of the accused persons, as well as the manner in which the incident took place, same is further corroborated by the testimony of PW1 Prem Nath, who was the rickshaw puller, who though was hostile regarding the identity of the accused persons, but in his examination in chief, he has clearly corroborated the prosecution version, which has been proved in the court by PW2, PW3 and PW4 regarding the manner of the incident and the place where the said assault took place. Consequently, the testimony of PW1 who was an independent witness regarding the manner in which the incident took place also clearly corroborates and supports St. Vs. Rinku etc. P.S.Sultan Puri 22 and fortifies the testimony of PW2, PW3 and PW4 regarding the incident, which took place on 6.3.03.
32. Nothing material has come out in the testimony of PW2 and PW4 except the fact that both PW2 and PW4 have admitted that they were not legally working in the Malkhana of P.S Sultan Puri and they had no authorisation to do so, nor they had been given any authority letter by the SHO or any other police officials and they also admitted that their attendance was never marked in the Police Station.
33. Despite the aforesaid admission made by PW2 and PW4 in their cross-examination that they were not legally working in the Malkhana of P.S Sultan Puri, that in no way dilutes the evidentiary value of their statement recorded before the court. It may be that they may have been employed by then SHO Sultan Puri illegally for assistance in the work of MHC(M) at Police Station Sultan Puri, but from the tone and tenor of their cross-examination, it no where appears that they were untruthful witnesses, rather they were St. Vs. Rinku etc. P.S.Sultan Puri 23 candid enough to admit that they were working illegally in the Malkhana of P.S. Sultan Puri, instead of denying the said fact.
34. Further, though in the cross-examination of PW3 Rajinder, it has come that he can not tell the DD entry number by which he left the duty, but that in no way impinges upon his testimony as nothing material has come out in his cross-examination as well, which could show that he was not a reliable witness. As discussed above, the testimony of PW2, PW3 and PW4 converges with each other regarding the time place and the manner in which the incident dt. 6.3.03 took place. From the aforesaid discussion, it appears that PW2, PW3 and PW4 are reliable and truthful witnesses and no fault has been found in their cross-examination for the reasons discussed above despite being subjected to extensive cross- examination by the Ld. Defence Counsel.
35. Further PW26 SI Gulshan Nagpal in his examination in chief has stated that he instructed after the arrest of the accused persons to remain in muffled face, as he had moved an application for TIP of St. Vs. Rinku etc. P.S.Sultan Puri 24 the accused persons and on 11.3.03 the accused persons were produced before the court and he also filed an application for TIP of the accused persons, lateron all the accused persons refused to join the TIP proceedings. On the said point no cross-examination was carried out, by the Ld. Defence counsel, meaning thereby the accused persons admitted the said statement of the IO in his examination in chief.
36. Even otherwise the said fact was also put to the accused persons separately in their statement U/s 313 Cr.P.C regarding the refusal of their TIP, to which they stated that they refused TIP as they had been shown to the witnesses before TIP at the Police Station itself and they had no other alternative. Consequently, from the aforesaid testimony, it is apparent that the identity of the accused persons has been clearly established by the testimony of PW2, PW3 and PW4, who have all identified the accused persons in the court during their deposition(s) and they had no other opportunity to identity the accused persons prior to that, as all the St. Vs. Rinku etc. P.S.Sultan Puri 25 accused persons had refused to undergo TIP during the investigation(s). Consequently, the prosecution has been able to prove that the accused persons were the persons who were the assailants, who had inflicted knife injuries on the body of PW2 and PW3 on 6.3.03.
37. The medical evidence also corroborates the testimony of PW2, PW3 and PW4 as in the MLC of injured Devinder Mishra Ex.PW11/B, the following injuries were found:
1. CLW(2x1cm) over right hypochondrium
2. CLW 2x1cm left lower chondrial region.
3. CLW 2x1cm lower presternal region
4. CLW 1x.5cm over Adams apple.
5. CLW 2x1cm left side neck 4cm below of left mandibular angle.
6. CLW 1x.5 cm over chin.
7. CLW 1x.5cm over left lower eye lid.
8. CLW 1x.5cm lateral to left eye.
9. CLW 2x1cm right side chest 3cm above right nipple.
And similarly in the MLC Ex.PW11/A of injured Rajender the St. Vs. Rinku etc. P.S.Sultan Puri 26 following injuries were found.
1. CLW 2cmx0.5 cm Medial aspect of right arm
2. 4x1cm. over forehead.
3. CLW 2x1cm over left cheek.
4.CLW 4x.5cm right temporo frontoparietal region.
5. CLW 2x1 cm left side of chest.
6. CLW 1x.5cm nape of neck.
7. CLW 1x.5cm infra scapular region
8. CLW .5cm scapular region right side.
9. CLW 1x.5cm posterior fold of left axilla.
38. Though in both the MLC(s), the injuries found on the body of injured Davender and Rajender have been shown to be CLW's(contused Lacerated wounds) instead of CIW (clean incised wound). The same appears to be a case of negligence/mistake on the part of the doctor Poonam, who had prepared the MLC of the injured persons on 7.3.03 at SGM Hospital. As it appears that at that time the priority of the doctor who had prepared the MLC was to impart immediate medical aid to the injured persons and not to prepare the MLC. In any case from the nature of injuries St. Vs. Rinku etc. P.S.Sultan Puri 27 enumerated above, it is clear that number of injuries were received by both the injured persons on various parts of their body, as both the injured persons had received 9 injuries on their various body parts.
39. The fact that the said injuries had been caused by knives or stabs, has been cleared by subsequent opinion Ex.PW11/F, as the knives allegedly recovered from both the Rinku(s) in the present case were presented before the medical board for subsequent opinion and in the said subsequent opinion Ex.PW11/F it was opined by the medical board that the injuries on the person of Rajender was stab injuiries and the injuries in both the cases can be caused by weapons taken out from the sealed parcels i.e. knives. No suggestion was given during the cross-examination of PW11 Dr. Poonam and PW18 Dr. P.S. Khatana, who were the doctors who were the part of the medical board, who had given subsequent opinion, that those injuries found on the body of the injured Davender and Rajender had been caused by dandas or St. Vs. Rinku etc. P.S.Sultan Puri 28 other blunt weapons, rather in the cross-examination of PW18 Dr. P.S. Khatana, a suggestion was given that the said injuries could be caused by double edged knife which PW18 admitted in his cross-examination, meaning thereby that even the defence admits that the injuries which had been caused on the body of PW2 and PW3 had been caused by knife and it is no where the case of the defence either during the cross-examination of any of the material witnesses or in their statement U/s 313 Cr.P.C that such injuries had been caused by dandas, rods or other similar blunt weapons. Consequently, the medical evidence also corroborates and supports the prosecution version, and matches the substantive evidence given by PW2, PW3 and PW4.
40. Regarding the arrest of the accused Ravinder @ Bhalu , the prosecution has examined PW12 constable Sunder, PW16 Constable Pardeep and PW17 SI Kailash Chander. As per the prosecution story, the accused Ravinder @ Bhalu was arrested on 10.3.03 from near bus stand Krishan Vihar on receipt of secret St. Vs. Rinku etc. P.S.Sultan Puri 29 information alongwith another accused Sunil(since expired) and from the search of accused 50 gm. smack was recovered from his possession, for which a separate FIR No. 238/03 U/s 21 of NDPS Act was also registered at P.S. Sultan Puri. The decided file of said FIR 238/03 was also summoned on the request of the Ld. Defence Counsel during the final arguments, as it was recorded in the cross- examination of PW12, that the cross-examination of this witness recorded in said NDPS Act be read as cross-examination of that witness in this case. The accused Ravinder @ Bhalu has already been acquitted in the said case FIR 238/03 U/s 21 of the NDPS Act by the court of Sh. Manoj Jain Ld. ASJ Rohini vide order dt. 25.9.08.
41. PW16 Constable Pardeep Kumar in his cross-examination has admitted that no public persons were joined in the investigation(s) and the place where the accused was apprehended was a thickly populated area and he has also failed to specify the bus route number by which they came from Tis Hazari and for what work they St. Vs. Rinku etc. P.S.Sultan Puri 30 came to Tis Hazari. He also failed to tell the time when he left the PS for going to Tis Hazari or whether any DD entry was lodged by them when they started from the P.S. In these circumstances, since the accused has already been acquitted in the NDPS Act case which was also registered against him on the similar facts, in which the prosecution version regarding the arrest and recovery has been found to be doubtful, therefore, in the present case also, there is no reason why the said version be considered as believable. Therefore, it does not appear that the accused Ravinder @ Bhalu was arrested from the place and manner as propounded by the prosecution.
42. Regarding the arrest and recovery of the knives allegedly from the possession of the accused persons Rinku S/o Shyam Lal and Rinku S/o Asha Ram, prosecution has examined PW14 H.C Gajinder, PW15 Const. Rajbir, PW20 HC Yashbeer Singh, PW21 HC Satnam Singh, PW24 ASI Ram Mehar. As per the prosecution story both the accused persons namely Rinku S/o Asha Ram and St. Vs. Rinku etc. P.S.Sultan Puri 31 Rinku S/O Shyam Lal were arrested on 10.3.03 from near Liquor shop Begum Pur when police party consisting of H.C Ram Avtar, HC Satnam, Const. Rajbir were on duty to check the vehicles at T Point Begum Pur and at that time both the accused persons who were coming from the side of liquor shop, on seeing the police party tried to run away were apprehended and on enquiries from them, their names were known as Rinku S/o Shyam Lal and Rinku S/o Asha Ram. Accused Rinku S/o Shyam Lal was apprehended by HC Ram Avtar with the help of constable Rajbir and from his search one buttondar knife was recovered from his possession and the second person accused Rinku S/o Asha Ram was apprehended by HC Satnam and from his search one buttondar knife was also recovered. Separate cases U/s 25 of the Arms Act were registered against them i.e case FIR No. 235/03 and 236/03 and further investigation(s) were taken up by second IO of those case(s) namely PW20 HC Yashbeer Singh and ASI Ram Mehar.
43. The separate evidence of the aforesaid witnesses have also St. Vs. Rinku etc. P.S.Sultan Puri 32 been recorded in Arms Act cases U/s 25 of the Arms Act bearing FIR No. 235/03 and 236/03. As per the deposition of the aforesaid witnesses, the accused persons also made a disclosure statement separately after the recovery of knives from them. However, recovery of knives from both the aforesaid accused persons Rinku is not a reliable evidence, as there is no evidence that said knives were used in the incident dt. 6.3.03, except the disclosure statement of accused persons, the disclosure statement of both the accused persons namely Rinku S/o Asha Ram and Rinku S/o Shyam Lal is hit by Section 25 of the Arms Act, as recovery of knives had already been made prior to recording of their disclosure statements, hence Section 27 of the Indian Evidence Act does not come into picture, as the knives had already been recovered prior to the recording of their disclosure statements. Further, admittedly no public witness was joined at the time of arrest of the aforesaid accused persons nor any DD entry has been placed on the record that the police party was indeed on vehicle's checking duty at the St. Vs. Rinku etc. P.S.Sultan Puri 33 said point.
44. There is no other evidence on the record that the said knives were used in the incident dt. 6.3.03, as PW2 Devender Prasad stated in his examination in chief that he can not identify the knife which were used by the accused persons, nor the said knives were shown to PW3 and PW4 in their examination in chief and there is no FSL report, also which connects the said knives with the incident dt. 6.3.03.
45. Even if, it is presumed for the sake of arguments, that the three accused persons were not arrested in the manner as propounded by the prosecution in their version, even then the same is not relevant to the present controversy, as the question which has to be decided is whether the accused persons were the persons who had caused injuries on the body of PW2 and PW3 by knives in the presence of PW4 on 6.3.03.
46. Further, even recovery of knives from the accused persons is not relevant for the conviction of accused persons , as what is St. Vs. Rinku etc. P.S.Sultan Puri 34 relevant for the present controversy is, whether PW2 and PW3 had been assaulted with knives or not and it is not relevant, whether PW2 and PW3 were assaulted with the same knives which were recovered from the possession of the accused Rinku S/o Asha Ram and Rinku S/o Shyam Lal. The defence plea propounded by DW1 that accused Rinku S/o Shyam Lal was present with him in his factory when he was forcibly lifted by the police is not worthy of credence as DW1 Dinesh Kumar in his cross-examination has admitted that he had not obtained any MCD licence for running the machines installed in his factory and he did not use to keep any attendance register for marking the presence of the workers. He also did not have any employment record of his employees. He had never informed the labour office, regarding employees kept by him nor he had informed the senior officers, regarding the arrest of the accused Rinku on that day or had made any PCR call. Consequently, his version that the accused was forcibly lifted by the police from his factory is not believable.
St. Vs. Rinku etc. P.S.Sultan Puri 35
47. Similarly, the version of DW2 Deepak Kumar that accused Sunil(Deceased), Ravinder @ Bhalu and accused Ruinku S/o Asha Ram were with him at Ately Mandi, Tehsil Narnole, Distt. Mahender Garh(H) on 9.3.09 when they were forcibly taken by the police officials of Delhi in Tata 407 vehicle is not believable, as he has also admitted that accused Rinku S/o Asha Ram is his real brother in law and accused Ravinder @ Bhalu is also his distant relative and accused persons had visited his house for the first time on said date and they had not visited his house any time and he can not tell the number of Tata 407 or any other vehicle in which the said accused persons were taken by the police. Nor he had informed the local police regarding the forcible taking away of the aforesaid persons nor he had made any complaint to anyone and he also admitted that he was staying with the accused persons for this case, which clearly belies his credibility, as he was already pre- deposed in favour of the accused persons.
48. From the above discussion, it is clear that even the defence St. Vs. Rinku etc. P.S.Sultan Puri 36 version that the accused persons were forcibly lifted , taking the plea of alibi regarding the arrest of the accused persons is also not believable, for the reasons already discussed above.
49. Now, it has to be seen in the present case, whether the accused persons had an intention to cause death of injured, as it depends upon the facts and circumstances of each case, whether the accused persons had the intention to cause death or knew in the circumstances that their act was going to cause death. The nature of the weapon used, the intention expressed by the accused persons at the time of the act, the motive for commission of the offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding, whether in a particular case the accused persons can be convicted of an attempt to murder.
50. Further, the prosecution has to prove that there must be some overt act combined with evidence of mens rea. The burden is St. Vs. Rinku etc. P.S.Sultan Puri 37 always on the prosecution to prove, first the, actus reus, that is, the accused had done something which in point of law marked the commission of the offence, and second, the mens rea, that is, in taking this step he was inspired by the intention to reach a definite objective which would constitute a specific offence.
51. The mens rea, or guilty intention of the accused persons in this case can be clearly deduced from the actus reus of the accused persons i.e. the manner in which they had inflicted injuries upon the body of injured Davender and Rajender. In the present case, the intention of the accused persons can also be clearly gathered from the nature of injuries reflected/found on the body of the injured persons Davender and Rajender and the part of the body, where the said injuries had been caused and also the weapon used by the accused persons to inflict the said injuries.
52. As per PW11 Dr. Poonam the following injuries were found on the body of the injured Rajender vide MLC Ex.PW11/A
1. CLW 2cmx0.5 cm Medial aspect of right arm St. Vs. Rinku etc. P.S.Sultan Puri 38
2. CLW 4x1cm. over forehead.
3. CLW 2x1cm over left cheek.
4.CLW 4x.5cm right temporo frontoparietal region.
5. CLW 2x1 cm left side of chest.
6. CLW 1x.5cm nape of neck.
7. CLW 1x.5cm infra scapular region
8. CLW .5cm scapular region right side.
9. CLW 1x.5cm posterior fold of left axilla.
53. Dr. Poonam has further stated that following injuries were found on the body of the injured Davender vide MLC Ex.PW11/B:
1. CLW(2x1cm) over right hypochondrium
2. CLW 2x1cm left lower chondrial region.
3. CLW 2x1cm lower presternal region
4. CLW 1x.5cm over Adams apple.
5. CLW 2x1cm left side neck 4cm below of left mandibular angle.
6. CLW 1x.5 cm over chin.
7. CLW 1x.5cm over left lower eye lid.
8. CLW 1x.5cm lateral to left eye.
9. CLW 2x1cm right side chest 3cm above right nipple.
St. Vs. Rinku etc. P.S.Sultan Puri 39
54. The MLC of the injured Rajender shows that he had suffered injury of the size 4x.5cm on right temporo frontoparietal region and also the injury of the size 2x1 cm left side of chest, while injury of size 1x.5cm on the nape of neck i.e(back of the neck) and he also suffered injuries of 1x.5cm infra scapular region and injury of .5cm scapular region right side. The various injuries which were found on the chest, back of the neck and on the head i.e. on the right temporo frontoparietal region as well as on the infra scapular region shows that the injures which had been inflicted on the body of the injured Rajender were inflicted on the vital parts of his body which could have been life threatening, if timely medical intervention would not have been imparted to him.
55. Similarly, on the body of Davinder an injury of 2x1cm over right hypochondrium and injury of 2x1cm over left lower chondrial region as well as injury 1x.5cm over Adams apple i.e. portion of the throat which is protruding out and there was an injury of 1x.5cm over left lower eye lid and there was also an injury of 2x1cm over right side St. Vs. Rinku etc. P.S.Sultan Puri 40 chest. The aforesaid injuries also reveal that the injuries had been inflected upon the injured Davender Mishra also on vital parts of his body i.e. on the throat and i.e. part of a throat which is protruding out and also on the abdomen just below the ribs and over the right side of the chest.
56. From the aforesaid injuries found on the body of the injured Rajender and Davender Mishra, it is amply clear that the accused persons had an intention to cause death or they knew in the circumstances in which the said injuries had been caused that they were going to cause the death of injured Rajender and Davender, as a number of injuries have been found on the body of both the injured persons, which clearly reveal desperation of the accused persons to some how cause their death and that they should not escape from death.
57. Though, the nature of injuries found on the body of both the injured persons Davender Mishra as well Rajender have not been proved by the prosecution, which on the said MLC had been opined St. Vs. Rinku etc. P.S.Sultan Puri 41 as grievous, even in the absence of said proof regarding the gravity and nature of injuries sustained by both the injured persons, the prosecution has been able to prove that the accused persons were harbouring an clear cut intention to cause the death of the injured Davender as well as Rajender.
58. Even otherwise, it has been held in Vasant Vs. State (2004)9 SCC 31, for an offence under Sec. 307 IPC, it is not essential that the bodily injury is capable of causing death. It was also held in Sarju Prosad Vs. State AIR 1965 SC 843, where the accused caused injuries by a knife on vital part of body, the mere fact that no vital organ of the victim was cut is not sufficient to take the case out of the purview of Sec. 307 IPC.
59. Further the intention of the accused persons to kill or to cause death of both the aforesaid injured persons is also discernible from the testimony of PW4, who has deposed that the accused persons before inflicting injuries upon the PW2 and PW3 were saying that "POLICE SE TO HIM CHIDHATE HAIN" and after inflicting the knife St. Vs. Rinku etc. P.S.Sultan Puri 42 injuries accused persons ran away from the spot and while leaving the spot the accused persons told PW4 that "HAMANE DONO KO DHANDHA KAR DIYA HAI AGAR TUNE POLICE ME REPORT KI TO TUJHE BHI JAN SE MAR DENGE", to the said assertion made by PW4, there is no cross-examination. Accordingly, the said assertion stands proved.
60. From the aforesaid exhortion made by the accused persons while leaving the spot after injuring PW2 and PW3 with knives clearly show that they were harboring an intention to cause death of the injured PW2 and PW3, but somehow timely medical intervention saved them. The common intention of the accused persons is also evident from the fact that all the accused persons attacked PW2 and PW3 after saying that they were not on good terms with the police and despite being told that the PW2, PW3 and PW4 were from the staff i.e police they still attacked them with knives while two of the accused persons namely Rinku had caught hold of Rajender and Davender, whereas accused persons St. Vs. Rinku etc. P.S.Sultan Puri 43 Ravinder @ Bhalu and Sunil had inflicted knife injuries on the person of Rajender and Davender clearly shows premeditation and sharing of common intention by all the accused persons to kill the injured PW2 and PW3.
61. It has been held in judgment, Babu Lal Bhagwan Khandare Vs. State of Maharashtra AIR 2005, Supreme Court 1460.
Ashok Kumar Vs. State of Punjab AIR 1977 Supreme Court 109 that:
If two or more persons intentionally do an act jointly, the position of law just the same as if each of them done individually by himself. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identical similar. The acts may be different in character but must have been actuated by one or the same common intention Section 34 is applicable even if no injury has been St. Vs. Rinku etc. P.S.Sultan Puri 44 caused by particular accused himself for applying the section 34 it is not necessary to show some over act on the part of the accused.
The aforesaid judgment is squarely applicable to the facts and circumstances of the present case, as from the facts discussed above, the common intention of all the accused persons to cause knife injuries and to kill PW2 and PW3 is clearly evident.
62. The net result of the aforesaid discussion is that the prosecution has been able to make out a case U/s 307/34 IPC beyond all sorts of reasonable doubt against all the accused persons namely; Rinku S/o Shyam Lal, accused Rinku S/o Asha Ram and accused Ravinder @ Bhalu. Consequently, all the accused persons Ravinder @ Bhalu, Rinku S/o Shyam Lal and Rinku S/o Asha Ram stand convicted U/s 307/34 IPC in FIR No. 218/03. At the same time prosecution has failed to make out a case U/s 25 Arms Act in case FIR No.(s) 235/03 and 236/03.
Consequently, the accused persons Rinku S/o Shyam Lal in FIR St. Vs. Rinku etc. P.S.Sultan Puri 45 No. 235/03 U/s 25 Arms Act and Rinku S/o Asha Ram in FIR No. 236/03 U/s 25 Arms Act stand acquitted. All the aforesaid accused persons be taken into judicial custody and be produced on 29.7.10 for arguments on the point of sentence in case FIR No. 218/03. The files of FIR No. 235/03 and 236/03 be consigned to record room and the files summoned from the record room be sent back immediately.
Announced in the open court (Sanjeev Aggarwal)
On 23.7.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
St. Vs. Rinku etc. P.S.Sultan Puri
46
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI SC No. 139/08 FIR No. 218/03 PS Sultan Puri U/s 307/34 IPC ID No. 02404R6286012004 State Vs. 1. Rinku S/o Asha Ram R/o RZ-100, Roshan Garden, Najafgarh, Delhi.
2. Rinku S/o Shyam Lal R/o Kachi Colony, near Indira Jheel, G Block Sultan Puri, Delhi.
3.Ravinder @ Bhalu S/o Jeewan Lal R/o 269, Gali No. 5, Rattan Vihar, Sultan Puri, Delhi.
Order on the point of sentence:
29.7.2010 Present: Sh. G.S. Guraya, Ld. Addl. PP for the state.
All the convict(s) are produced from J.C. with Sh. A.K. Chadha, Ld. Defence counsel for all the convict(s).
It is submitted by the Ld. Counsel for the convict(s), that the convicts are first time offenders and they have not been convicted in any other case and no other case is pending against them. It is also St. Vs. Rinku etc. P.S.Sultan Puri 47 stated that the convicts are having clean antecedents and convict Rinku S/o Shyam Lal is aged around 27 years at present, whereas accused Rinku S/o Asha Ram is aged around 27 years at present and accused Ravinder @ Bhaloo S/o Jeevan Lal is aged around 28 years at present. Therefore, it is prayed that lenient view may be taken against them.
On the other hand Ld. Addl. PP for the state submits that strict punishment should be awarded to these convicts, as they had attempted to kill one policeman and they even had the audacity to attack a policeman, despite knowing fully well that he belonged to the police force and caused multiple injuries on his body and similarly they had caused multiple injuries on another injured, who was accompanying him, which shows they have no fear of law or of the police and also shows their desperation and they are menace to the society.
I have gone through the rival contentions, no doubt the convicts had caused sharp injuries, on the body of injured Devender and Rajender, in an inhuman manner, despite being told by the injured Rajender that he belonged to the police force, they still attacked him St. Vs. Rinku etc. P.S.Sultan Puri 48 with knives, resulting, in multiple injuries, sustained by both the aforesaid injured persons. However, looking at their tender age at the time of the incident and fact that trial has taken seven years to conclude, the interest of justice shall be met, if all the convicts are sentenced to rigorous imprisonment for 3 years each, U/s 307 IPC. They are further sentenced to pay a fine of Rs. 14,000/- each, U/s 307 IPC, out of the total fine of Rs. 42,000/-, a compensation of Rs. 20,000/- each be given to the injured Rajender and Devender and Rs. 2,000/- be deposited in the government account, as the cost of proceedings. In default of payment of said fine, all the convicts are further directed to undergo SI for 6 months each. Benefit of the period already undergone by them during the trial U/s 428 Cr. PC be extended to them. Copy of the judgment and order on the point of sentence be provided to all the convicts free of cost. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
on dt. 29.7.10 Addl. Sessions Judge:
Rohini Courts: Delhi.
St. Vs. Rinku etc. P.S.Sultan Puri
49
St. Vs. Rinku etc. P.S.Sultan Puri