Delhi District Court
State vs Puneet Sharma Etc on 1 December, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.35/1/11
FIR No.401/08
U/s 186/353/333/379/34 IPC
PS Dwarka
State
Vs.
1. Puneet Sharma s/o Sh. Rajesh Sharma
2. Naveen Dogra s/o Sh. Shamsher Singh
..... Accused
Challan filed on : 13.02.09
Reserved for Order on : 08.11.2012
Date of Pronouncement : 29.11.2012
JUDGMENT
Briefly stated the facts of the prosecution case are that on 25.6.08 Ct. Kadam Singh was on patrolling in the area of PS Sec.16B Dwarka vide DD no.38. At about 10 p.m when he reached near Vidyut Chowk Sec.13, Dwarka, he noticed that a white WagonR car was State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 1 of 30 parked on road side. After some suspicion he reached near the car and enquired from two boys, who were sitting in the car regarding their presence in odd hours. During enquiry both the boys came down from the car and suddenly assaulted on Ct. Kadam Singh due to which he fell down and lost his consciousness. After a short while when he regained his consciousness he found that both the boys had left the place after taking away his official wireless set and notebook. Ct. Kadam was taken to DDU Hospital for his medical examination where his statement Ex.PW7/A was recorded. On the basis of this statement, IO made his endorsement and got the present case registered. The investigation was conducted and site plan was prepared. The uniform and name plate of injured was seized. Wireless message regarding the incident was flashed. Ct. Ramnivas produced one wireless set stating that it was found by him on bus stop, Thimpa Marg. It was seized. The wagonR Car was searched and during investigation SI BS Ahlawat who had arrested accused Puneet and Naveen in FIR no.567/08 u/s 354/379/34 IPC informed that both the accused have made disclosure statement about this case. The relevant documents were collected and both the accused were formal arrested. There TIP was fixed but both the accused refused to participate in the TIP. Result on MLC was State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 2 of 30 collected from DDU Hospital. Sanction u/s 195 Cr.PC was obtained and after completion of the investigation challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 07.03.2011.
3. The charge against the accused Puneet Sharma and Naveen Dogra has been framed u/s 186/353/333/379/34 IPC by Sh Praveen Kumar, the then Ld. ASJ to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 9 witnesses.
5. The evidence against the accused persons was put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. The accused persons did not opt to lead the defence evidence. Thereafter the case was fixed for final arguments. State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 3 of 30
6. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.Counsels on behalf of the accused persons, I have perused the testimonies of all the PWS. PW1 Ct.Mahinuddin has deposed that he was working as DD writer at PP Sec.16B Dwarka and he recorded departure of Ct. Kadam. The copy of DD no.Ex.PW1/A.
8. PW2 ASI Degram has deposed that he received rukka through Ct. Mahender sent by SI Pankaj Malik and he recorded FIR no.401/08. The copy of FIR is Ex.PW2/A.
9. PW3 Rajender Singh has deposed that on 21.1.09 file of this case was produced before him and after satisfying himself he gave complaint u/s 195 Cr.PC which is Ex.PW3/A.
10. PW4 Ct Mahender Singh has deposed in the intervening State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 4 of 30 night of 25/26.6.08 he had accompanied SI Pankaj to DDU Hospital . He was handed over rukka and he got the case registered. SI Pankaj prepared the site plan in his presence. He has further deposed that Ct. Kadam handed over his torned uniform to him which was blood stained, his broken name plate and one chappal of black colour which were sealed and seized vide seizure memo Ex.PW4/A and B. He has further deposed that next day at about 1/1.30 p.m Ct. Ramnivas posted in traffic came and produced wireless set to SI Pankaj and one side of the set DW23 was written. It was seized vide memo Ex.PW4/C. On 5.12.08 he accompanied the IO to Tihar jail to arrest accused Puneet and Naveent and they are arrested vide memo Ex.PW4/D & E. He identified both the accused. He identified the wireless set Ex.P1chappal Ex.P2 and half name plate is Ex.P3, shirt Ex.P4 and pant Ex.P5.
11. PW5 Dr. Naveen Shukla has appeared for Dr. Mayank Maheshwari since left the service of the hospital. He has stated that as per MLC no.11420 patient Ct Kadam was examined on 25.6.08 at 11.44 a.m and was referred to ENT vide MLC Ex.PW5/A. As per MLC the nature of injuries were grievous from ENT side on the basis State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 5 of 30 of report from radiology deptt.
12. PW5 (PW number wrongly mentioned) Dr. Aruna Singh has appeared for Dr. Faisal Shadab who had left the service of the hospoital. She saw the Xray plate of Ct. Kadam signed by Dr. Faisal. The Xray report is Ex.PW5/A.
13. PW6 Dr. Rakesh Kumar has also appeared for Dr. Faisal and he also stated that he can identify the handwriting and signatures of Dr. Faisal Shadab. AS per report Ex.PW5/A there was bilateral fracture on nasal bone of the patient.
14. PW7 HC Kadam Singh is the complainant and injured in this case and he has deposed about the incident which had taken place with him. He proved his statement Ex.PW7/A on the basis of which the FIR was registered. He also deposed about seizure of his clothes and name plate. He identified both the accused present in the court. He also identified his uniform and broken name plate.
15. PW8 Insp. Pankaj Malik is the IO of this case and he has State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 6 of 30 deposed that on 25.6.08 Ct. Kadam Singh came to PP and told that he had been assaulted by two persons during patrolling and received injuries on nose and head. He was taken to hospital . He was treated and declared fit for statement. His statement Ex.PW7/A was recorded on which he made endorsement and got the case registered. HE prepared site plan Ex.PW8/B. He seized broken name plate having written KADA & C and one chappal of black colour and seized the same vide memo ex.PW4/B. He seized the blood stained uniform of Ct. Kadam and half piece of broken name plate having written M SINGH ONSTABLE on it. He seized the same vide memo ex.PW4/A. He has further deposed that on 27.6.09 Ct. Ramnivas produced one wireless set without battery to him and informed that he found the same at bus stop of Palam more Thimiya marg. On checking DW23 was written on it and he enquired from PS. The wireless was seized vide memo Ex.PW4/C. He collected the MLC of Ct. Kadam and taken the opinion regarding nature of injury. He has further deposed that on 3.12.2008 he was informed by SI B.S.Ahlawat of PS Dwarka that accused Puneet and Naveen were arrested in FIR no.567/08 u/s 354/379/34 IPC. He was handed over the copies of disclosure statements which are mark PW8/PA and PB. He had moved an State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 7 of 30 application in the court of Sh. Sanjay Jindal Ld. ACMM seeking permission for the interrogation and formal arrest of Naveen which was allowed. On 5.12.08 he went to jail no.4 Tihar with Ct. Mahender where accused were interrogated and formally arrested vide memo Ex.PW4/D and E. He recorded the disclosure statements of accused persons which are Ex.PW4/F and G. Accused persons have refused to sign on their disclosure statements as well as their arrest memos. He has further stated that on 6.12.08 both the accused were produced in the court in muffled face for TIP. But the accused refused to participate in the TIP. He further stated that on 22.12.08 both the accused were identified by Ct. Kadam in the court. He also applied to obtain complaint u/s 195 Cr.PC from ACP Sh Rajender Singh. The complaint is Ex.PW3/A. He placed copy of DD no.38 on file regarding patrolling of Ct. Kadam. The DD is Ex.PW8/C. He identified the case property.
16. PW9 Sh Jitender Mishra Additional Senior Civil Judge, the then Ld.MM has conducted the TIP of accused persons in this case. He has stated that both the accused refused to participate in the TIP for the reason that they were brought to the court in unmuffled face and they State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 8 of 30 were shown to the witnesses in PS. The TIP proceedings are Ex.PW9/C and D.
17. In the overall analysis of the testimonies of all the witnesses it is revealed that PW7 HC Kadam Singh is the complainant and injured in this case. He is the main star witness of the prosecution and whole case of the prosecution rests upon his testimony. So, firstly I have perused the testimony of PW7 Ct.Kadam who is the complainant and injured. He has deposed that on 25.6.08 while on patrolling in the area vide DD no.38 which he had inadvertently mentioned in the first statement recorded by IO as DD no.37, at about 11 p.m when he reached sector 13 near Vidyut Chowk, Dwarka there he saw one white colour WagonR no.DL1Y parked on the side of the road in isolated condition. He got suspicious and reached near the said car. He saw two boys sitting in the car and enquired them as to why they were present there at such late hours in isolated place and they came out on his direction. One boy appearing to be 25/26 years told his address as L3 Mohan Garden and he was of medium built and other boy was well built and shorter that the height and told that he is resident of Harijan Basti Bijwasan. He has stated that when the second boy was State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 9 of 30 telling his address in the meanwhile the first boy assaulted on his nose and forehead with some unknown object and other boy gave first blow on his temple as a result of which he started bleeding from nose and forehead, felt dizziness and he fell down. His wireless set and notebook fell down. After he regained his consciousness he found wireless set and notebook missing. He reached PP from where SI Pankaj Malik removed him to hospital. His statement is Ex.PW7/A. He joined the investigation and reached at the spot where SI prepared the site plan. His blood stained uniform, his broken nameplate and one black chappal was also found lying at the spot. The same were seized by the IO vide memo Ex.PW4/A and B. On 22.12.08 he had accompanied the IO to the court of Sh Sanjay Jindal where he saw two persons and identified them being the same persons involved in the incident on 25.6.08 with him. The names of the said persons were revealed as Puneet Sharma being the person who had assaulted him on his forehead and nose and the name of other person revealed as Naveen Dogra being the person who had given a fist blow on his temple and nose and thereafter run away from the spot. He identified both the accused in the court. He identified the case property. In cross examination he has stated that he was patrolling on foot. He had State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 10 of 30 noted down the complete registration number of the WagonR in his notebook, however it was taken away by the accused persons while running. However, prefixed half registration number as DL1Y was in his memory. He informed in DDU Hospital at the time of his medical that he was assaulted while on duty. He was carrying his official pistol with him while on patrolling duty. However, it was not taken away by the accused persons while running. After he was beaten up he fell down and became unconscious as he was suddenly attacked by them. He denied the suggestion that at the time of incident he was using mobile phone number 9871096200 vol. Even today he is not having his mobile number VOL. When he was posted with PS Palam as beat officer after this incident this mobile phone number was being in use by him and was given to various persons/officials. He denied the suggestion that accused persons have not caused any injury to him. First time he identified the accused persons when he came to court on 22.12.08. IO did not call him to get identified the accused, however, when he came to court on 22.12.08 the IO met him in the court alongwith the accused persons where he saw them. IO met him in the court and accompanied with him in the court itself so he stated in his statement u/s 161 Cr.PC that he went to the court with IO. He has State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 11 of 30 further stated that it is correct that at the time when he reached sec.13 Vidyut Chowk, the headlights of one white colour wagonR were only on and not the lights of the car from inside. There was no other vehicle near the said car. He was noting down the enquiry from the accused. The said diary was not recovered in his presence. He was beaten near the car. He felt unconscious due to beatings and he cannot tell if the accused persons had taken away alongwith them his diary and wireless set while running. He did not find the vehicle of the accused persons there after regaining his consciousness. The distance between the spot and the PP sec.16B is about 1 km. He was dropped by someone from the spot to the police post. He does not remember the time taken by them in reaching the hospital from the police post. He was questioned by the doctor as to how he had received the injuries and he had informed the doctor about the same. He had not given the name or the physical description of any of the assailant. He was discharged from the hospital on the same day. After incident he saw both the accused on 22.12.08 in the court. He is working in Delhi Police since 1.4.1986. He admitted that a dossier of any criminal is prepared in the concerned PS. He denied the suggestion that dossier of every person involved in any criminal case is made in the concerned PS. He is not aware if there State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 12 of 30 was any criminal record of accused Puneet and Naveen in their PS before this case. He denied the suggestion that he was aware that there was a criminal record of accused Puneet and Naveen in their PS even before this case. He denied the suggestion that he wrongly identified accused Puneet and Naveen in this case on the basis of their pre existing dossier record in the PS or that none of the accused was involved in the incident dated 25.6.08 with him.
18. Taking into consideration the deposition of PW7 Ct.Kadam it is revealed that he has assigned the particular role to accused Puneet Sharma being the boy who had assaulted him on his forehead and nose and that Naveen Dogra also gave him fist blow on his temple and nose and thereafter ran away from the spot. It is in evidence that the place of incident was a isolated place where no one else was present. PW7 has testified that he was on patrolling duty vide DD no.38 on 25.6.08. This version of PW7 finds corroboration from the statement of PW1 Ct. Mahinuddin who has stated that he recorded DD no.38 copy of which is Ex.PW1/A. I have perused the said DD which clearly show that Ct. Kadam, complainant/injured recorded DD at 9 p.m that he is on patrolling in Sec.13 & 14 near metro stations. He was carrying State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 13 of 30 wireless set and pistols with 5 rounds. PW1 has not been cross examined by the Ld. Defence counsel and no question has been put to him that he did not record any such DD or that it was recorded later on. DD no.38 is therefore stand proved and prosecution has established that Ct. Kadam was on patrolling duty on 25.6.08 in the night.
19. Pw7 HC Kadam Singh has further testified that when he reached section 13 near Vidyut Chowk Dwarka, he saw one white colour WagonR no. DL1Y parked on the side of the road in isolated condition and on suspicion he went there and saw two boys sitting in the car and enquired them as to why they are sitting at such late hours in isolated place. They came out and told their residence address and further testified that when the second boy was telling his address, the first boy assaulted on his nose and forehead with some unknown object and other boy gave first blow on his temple as a result of which he started bleeding from nose and forehead and felt giddiness and fell down. His wireless and notebook were taken away by those boys. To corroborate this version the prosecution has examined PW5 Dr. Naveen Shukla, Dr. Aruna Singh and Dr. Rakesh. I have perused the State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 14 of 30 MLC proved by them which is Ex.PW5/A. As per MLC, injured Ct.Kadam was taken to DDU Hospital at 11.44 p.m. It is to be borne in mind that the time of incident is 11 p.m. The MLC further found mention 'Alleged history of assault as told by the patient himself'. No history of Loc, vomiting, history of ENT bleed present. The injuries mentioned are :
1) CLW present just above the left eye brow.
2) Abrasion over the nasal bone
3) Scratch over the right eyebrow laterally
4) Swelling over the nose with crepetus
20. HC Kadam, the then constable was also examined by Dr. Mayank Maheshwari, SR ENT where again the doctor has mentioned 'alleged history of assault as told by self'. Nasal bleed was present. No history of ear bleed, Clots and swelling present. It has been mentioned on the MLC that 'as per radiological report fracture nasal bone is report'. In the present case the version of PW7 HC Kadam is supported and corroborated by the medical evidence i.e.MLC Ex.Pw5/A. I have also perused the cross examination of PW7. It has been admitted by PW7 that headlights of the car were on and not the State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 15 of 30 inner lights. This version of PW7 further strengthened the case of the prosecution that the alleged car was there at the spot on that day and by putting this question defence has admitted about availability of the car at the spot. On perusal of the cross examination of PW7 it is revealed that his testimony cannot be shattered by the Ld. Defence counsel.
21. On perusal of the statement of PW7 HC Kadam it is revealed that he has given consistent statement which has been corroborated by the medical evidence. His statement regarding coming to the PP has also been corroborated by PW8 Insp. Pankaj Malik. PW7 is the main star witness of the prosecution in this case. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured/eye witnesses are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw7 is the complainant and injured and the is the star witness of the prosecution. In fact he is the backbone of the prosecution case and whole prosecution case rests upon his testimony and in his testimony he has assigned specific role of both the accused. Accused have taken State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 16 of 30 the plea that they have been falsely implicated in this case. But no reason has been put to PW7 during cross examination by the Ld. Defence counsel which reveals that there was some enmity between the accused and PW7. So, there is also no reason for PW7 to falsely implicate the accused persons in this case. Ld. Counsel has pointed out certain contradictions in the testimony of PW7. No doubt that there are some contradictions, but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the court in view of the observation of case law Asha @ Ashanand & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. In view of the corroborative and supportive evidence in respect of the prosecution case, I have also perused and given my thoughtful consideration on the testimonies of other official witnesses.
22. PW8 Insp.Pankaj Malik has stated that Ct. Kadam Singh came to PP in injured condition and he took him to hospital where he recorded his statement Ex.PW7/A, prepared rukka Ex.PW8/A and got the case registered. His version has been corroborated by PW4 Ct. Mahender who took rukka to the PS and PW2 ASI Degram who State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 17 of 30 recorded the FIR no.401/08 Ex.PW2/A of the present case. The copy of FIR is therefore stand proved.
23. PW8 has further stated that Sh Rajender Singh Retired ACP gave complaint u/s 195 Cr.PC. PW3 Sh Rajender Singh ACP has also been examined by the prosecution and proved the complaint Ex.PW3/A. PW3 has not been cross examined by the Ld. Defence counsel. The testimony of PW3 remained unchallenged regarding complaint u/s 195 Cr.PC. So, complaint u/s 195 Cr.PC stand proved.
24. PW8 Insp. Pankaj has further stated that he visited the spot where he prepared the site plan Ex.PW8/B. PW4 Ct. Mahender has also corroborated in this respect. No question has been put to them regarding site plan by the Ld. Defence counsel. So, the place of incident is admitted by the defence. Further, both the PWS have stated about seizure of blood stained uniform of Ct. Kadam, his broken nameplate, one black colour chappal vide memo Ex.PW4/A&B. The above stated articles were produced in the court and duly identified by both the witnesses including PW7 Ct. Kadam. No question has been put by the ld. Defence counsel that no such seizure was made in this State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 18 of 30 case or that the name plate was broken by the injured himself. The seizure memos are available on file. It is admitted fact that no public witness was associated during seizure of these articles. But in view of the facts and circumstances of the case, in my view it was not required.
25. It is in evidence that on 3.12.08 SI BS Ahlawat of PS Dwarka informed Insp.Pankaj regarding arrest of accused persons in case FIR no. 567/08 u/s 356/379/34 IPC wherein they had disclosed about the commission of offence of the present case. PW4 Ct. Mahender has deposed about arrest of accused in the present case on 5.12.08 vide arrest memo Ex.PW4/D & E from Tihar jail and this has also been corroborated by PW8. The arrest memos and personal search memo of both the accused are available on file.
26. The present case incident had taken place on 25.06.08 and accused persons were arrested in this case on 5.12.08 i.e. after about five months. After arrest of accused persons, the TIP was conducted by PW9 Sh Jitender Mishra, the then Ld. MM. I have perused the said TIP proceedings. The accused persons have refused to participate in State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 19 of 30 the TIP. They have taken the plea that they were shown to the witness in the PS and that their photographs were also taken. I have perused the cross examination of PW7 as well as IO PW8. But no question has been put to both these witnesses that the accused persons were seen by PW7 at the PS or that PW8 had also taken their photographs. PW7 has specifically stated in cross examination that he had seen both the accused after the incident for the first time on 22.12.08 while the TIP was conducted in this case on 08.12.2008 after their arrest on 5.12.08 in this case. Therefore, in my view adverse inference can be drawn against both the accused persons as they had refused to take part in TIP.
27. Ld. Counsel has argued that there is no independent witness examined in this case by the prosecution to establish that accused persons have caused the injuries. This submissions of Ld. Counsel is of no consequence since the time of incident is about 11 p.m and when it has specifically come in evidence that the place of incident was an isolated place. Further, there was no need for associating any witness when the injured has assigned the specific role to both the accused persons and identified them before the court being the same boys who State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 20 of 30 had caused injuries on his person. In the present case the statement of complainant/injured has been corroborated by the medical evidence. So, there is no need for associating any public witness in this case.
28. Another plea of the ld.defence counsel is that the arrest of accused could not be established in this case. It is admitted fact that both the accused were arrested in case FIR no.567/08 where they made disclosure about the present case incident. Perusal of the file revealed that SI BS Ahlawat has not been examined by the prosecution in this present case. However, copies of the disclosure statements of both the accused are available on file wherein they had disclosed about the present case offence. No doubt that the prosecution should have examined SI BS Ahlawat in this case to prove arrest and disclosure of both the accused in that case but since now both the accused persons have been identified by the injured PW7 as the same boys who had caused injuries on his person, I am of the view that non examination of SI BS Ahlawat would not affect the case of the prosecution.
29. Ld. Counsel for the accused persons has also taken the plea that no recovery of any incriminating articles has been effected from State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 21 of 30 the accused persons in this case. This submission of the Ld. Counsel can be considered for the relevant section but as far as the deposition of PW7 regarding beating him is concerned, it has no consequence. However, the prosecution has duly proved the recovery of blood stained uniform of Ct. Kadam and his name plate which proves regarding the incident that PW7 was beaten by them while he was on patrolling duty in the area.
30. Ld. Counsel submitted that the car in which the accused persons were allegedly sitting has not been produced by the prosecution. It is admitted fact that the accused persons were arrested after about five months from the date of incident. In my view the recovery of car was also not of such importance in this case. Admittedly the IO of this case has not investigated regarding the alleged car in which the accused persons were found sitting at a isolated place nor tried to trace the same for the reasons best known to him. But the benefit of such lapse on the part of investigation cannot be extended to accused when there is clear evidence against them for causing injuries which is supported by medical evidence.
State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 22 of 30
31. I have also perused the medical evidence. The prosecution has examined PW5 Dr. Naveen Shukla in place of Dr. Mayank Maheshwari who proved MLC Ex.PW5/A. PW Dr. Aruna Singh has been examined in place of Dr. Faisal Shadab who proved Xray report Ex.PW5/A and PW6 Dr. Rakesh also appeared for Dr. Faisal. I have perused the MLC. As per MLC the nature of injury has been opined as Grievous by Dr. Faisal Shahdab. The contention of the Ld. Counsel that accused persons have been falsely implicated in this case cannot sustain since no question has been put to these doctors by the Ld. Defece counsel to confirm as to how such injury could be possible; as to whether these are possible by fall or can be self inflicted. The testimonies of these PWS could not be shattered in cross examination.
32. In this case charge has been framed u/s 186/353/333/379 / 34 IPC. I have considered the submissions and entire evidence available on file. The prosecution has proved complaint u/s 195 Cr.PC by examining PW3 Sh Rajender Singh, ACP(Retd). PW7 Ct. Kadam has stated that he was on patrolling duty at that time. Copy of DD no. 38 Ex.PW1/A is available on file. The prosecution has also examined PW1 Ct. Mahinuddin who recorded the departure of Ct. Kadam Singh State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 23 of 30 on that day. He was not cross examined. The prosecution has established that PW7 Ct. Kadam was on patrolling duty during night on that day. It is in evidence that accused persons were enquired by him and they have assaulted him while he was noting down their names and address in his notebook. So, it is manifest that accused persons have obstructed the police officials in discharge of public functions and assaulted Ct.Kadam and used criminal force to deter him from discharge of his official duty. So, the prosecution has established the charge u/s 186/353 IPC against the accused.
33. Section 333 IPC contemplates Voluntarily causing grievous hurt to deter public servant from his duty. In case law V.R. Murthy Vs. State, 1995 Cr.LJ 1819 (Cal) it is stated that : 'when the injury caused is not grievous hurt within the meaning of sec.320 IPC then the accused cannot be convicted u/s 333 IPC. So, when the accused gave fist blow on the municipal employee whose duty was to supply water to the area where the accused resided over the grievance of nonsupply of water to his area, he cannot be convicted u/s 333 IPC when the fist blow caused loosing of the teeth of the employee and he was discharged from the hospital on the same day. He can be convicted u/s 332 IPC' State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 24 of 30 In case law Krishnan Kutty Vs. State of Kerala, 1989 Cr LJ 2257 (Ker) it is stated that : 'when the constable on finding that the accused was behaving unruly on road, took him in custody, boarded a bus to take him to PS and the accused assaulted him in the bus, the constable was discharging his official duty when he was assaulted. So,the accused can be convicted u/s 332 IPC'.
In case law Madhudas Vs. State of Rajasthan, 1994 Cr LJ 3595 it is stated that : 'The accused abused, humiliated and beaten the Head Master of the school challenging his authority within the precinct of the school surrounded by the boundary wall. The accused is guilty u/s 332 IPC'.
34. In consideration of the above case law and in consideration of the evidence available on file, it is well established that the doctor who prepared the MLC of injured PW7 as well the doctor who opined the nature of injury has not been examined by the prosecution. Though the nature of injury has been opined as grievous in this case but it could not be proved by the prosecution. The injured was also discharged from the hospital on the same day. Considering the evidence on record, I am of the view that this case does not fall u/s State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 25 of 30 333 IPC and it falls only u/s 332 IPC.
35. Accused persons have also been charged u/s 379 IPC. PW4 Ct. Mahender Singh has stated that Ct. Ram Nivas posted in traffic came and produced wireless set to SI Pankaj in his presence on which DW23 was written and it was seized vide memo Ex.PW4/C. PW8 Insp. Pankaj has also stated that Ct. Ramnivas produced one wireless set without battery to him which was found by him at bus stop of Palam more Thimpiya marg. It has come on record that the wireless set was found and produced by Ct. Ramnivas. But the prosecution has failed to examine Ct Ramnivas in this case. No valid reason has been brought on record by the prosecution for non examination of Ct. Ramnivas in this case. No other article has been recovered from the accused persons. So, I am of the view that prosecution has failed to bring home the guilt of accused persons u/s 379 IPC.
36. In view of my above discussions as well as the case laws cited above, I am of the view of the prosecution has left no stone unturned to prove its case against accused Puneet Sharma and Naveen Dogra for the commission of offence punishable u/s 186/353/332/34 IPC. I, State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 26 of 30 therefore, hold accused Puneet Sharma and Naveen Dogra guilty for the commission of offence punishable u/s 186/353/332/34 IPC and convict them thereunder.
Announced in the open Court on 29.11.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 27 of 30 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS) DWARKA COURTS, NEW DELHI SC No.35/1/11 FIR No.401/08 U/s 186/353/332/34 IPC PS Dwarka State Vs.
1. Puneet Sharma s/o Sh. Rajesh Sharma
2. Naveen Dogra s/o Sh. Shamsher Singh ..... Accused ORDER ON THE POINT OF SENTENCE Accused Puneet Sharma and Naveen Dogra have been held guilty for the commission of offence u/s 186/353/332 IPC & convicted thereunder vide Judgment dated 29.11.2012.
2. I have heard the arguments on the point of sentence from Ld. Defence counsel. During the course of arguments it has been submitted on behalf of accused/convict Puneet Sharma that he is a young boy of 24 years of age. He is unmarried. His father is aged about 65 years and mother is aged about 60 years and they are dependent upon him. He has one unmarried sister of marriageable State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 28 of 30 age. It is submitted that he is only the bread earner in the family. He is involved in three other cases. He remained in jail for about 3 months in this case. It is submitted that lenient view may be taken against him and he may be sentence to the period already undergone.
3. It is submitted on behalf of accused/convict Naveen Dorga that he is a young boy of 25 years of age. He is married having one daughter aged about 7 years. His wife is a housewife. He is only the bread earner in his family and his parents and family is dependent upon him. There are three other cases pending against him. It is submitted that he also remained in jail in this case for three months. Ld. Counsel submitted that lenient view may be taken against the convict/accused and he may kindly be sentenced to the period already undergone.
4. Taking into consideration the facts and circumstances of the case, both the convicts Puneet Sharma and Naveen Dogra are ordered to undergo SI for Two Months and to pay fine of Rs.500/ u/s 186/34 IPC and in default of payment of fine to further undergo SI for 15 days.
5. Both the Convicts are further ordered to undergo RI for One year and to pay fine of Rs.1000/ u/s 353/34 IPC and in default of payment of fine to further undergo SI for One Month.
6. Both the Convicts are further ordered to undergo RI for One year and to pay fine of Rs.1000/ u/s 332/34 IPC and in default of payment of fine to State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 29 of 30 further undergo SI for One Month.
7. All the sentences of both the accused/convicts shall run concurrently. The benefit of sec. 428 Cr.P.C be given to the convicts. Copy of this order on the point of sentence and copy of Judgment be given to the convicts free of cost. It is ordered accordingly. File be consigned to record room. Announced in the Open Court on 01.12.2012.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Puneet Sharma etc FIR no.401/2008 Page No. 30 of 30