Delhi District Court
State vs Sunny @ Sameer on 3 September, 2024
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 657/2021)
CNR No. DLNT01-008977-2021
FIR No. 262/2021
Police Station Adarsh Nagar
Charge sheet filed 186/353/307/482/34 IPC
Under Section
Charge framed Under 186/307/353/34 IPC
Section
Sameer @ Sunny s/o Md. Sheikh r/o
State Vs. Jhuggi No. 467, E-Block, JJ Colony,
Bawana, Delhi.
Date of institution 01.12.2021
Arguments concluded on 23.08.2024
Judgment Pronounced on 03.09.2024
Decision Convicted under
section 186/333/353/34
IPC
Acquitted under
section 307/34 IPC
JUDGMENT
BRIEF FACTS 1.1 Events which set the prosecution machinery into motion is that on 31.05.2021 on receipt of DD No. 40A, IO SI Ranbir Singh alongwith Ct. Ajay went to Max Hospital, Shalimar Bagh, Delhi and obtained MLC No. SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 1 of 16 PS Adarsh Nagar 4246/2021 of injured Ashwani Kumar Meena. IO recorded statement of injured wherein he alleged that on 31.05.2021, he was on patrolling duty with ASI Mange Ram on ERV van. At about 08:10 AM, a snatching call in the area of Adarsh Nagar was received. During patrolling, they reached at Road No. 51 where other patrolling staff were also present. He further alleged that after some time another call with regard to snatching was received and they came to know that snatchers were committing offence on a FZ bike. He further alleged that in the meantime, Ct. Mukesh telephonically informed that FZ motorcyclist snatchers were coming towards Azadpur Chowk, Mukundpur from Road No.
51. He further alleged that at the same time, two boys were seen coming on FZ motorcycle. He and ASI Mange Ram gave signal to them to stop the motorcycle. Upon which motorcyclists slowed down the motorcycle and when he told them to came aside, they increased the speed of motorcycle and told that if they dare to stop them, they would kill him and hit the motorcycle against him. He further alleged that due to the said impact, he as well as motorcyclists fell down. He further alleged that he caught hold of driver i.e., accused Sunny @ Sameer whereas CCL (pillion rider) was apprehended by ASI Mange Ram. He further alleged that during the search of accused as well as CCL, one stolen mobile phone each was recovered from their possession. 1.2 During investigation, number plate of motorcycle was found to be fake and the motorcycle was found to be stolen from the area of PS Sadar Bazaar. Mobile phones i.e., Vivo recovered from CCL and Samsung recovered from accused Sunny @ Sameer were also found to be stolen from the area of PS Shalimar Bagh and PS Keshav Puram respectively. Opinion on the injury of injured Ashwani was obtained and it was opined as grievous. After completion of investigation, charge sheet for the offences u/s 186/353/307/482/34 IPC against accused Sunny @ Sameer was filed in the court. SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 2 of 16 PS Adarsh Nagar CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 26.04.2022, charge under section 186/353/307/34 IPC was framed against accused Sunny @ Sameer to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 6 witnesses in all.
FORMAL WITNESSES
4. PW3 Dr. Ashish Jain, Orthopedics Department, Max Hospital, Shalimar Bagh, deposed that on 31.05.2021, patient Ashwani Kumar Meena, came to the hospital with the history of road traffic accident. He further deposed that patient was examined by junior doctor and MLC which is Ex.PW3/A was prepared under his supervision. He further deposed that he had given opinion regarding injuries received by the patient as grievous.
5. PW4 Retd. ASI Gurdeep Singh, deposed that on 02.05.2021, he mechanically examined motorcycle bearing No. DL 8CK-4774 make Yamaha. He further deposed that after inspection, he found front shoe pressed, oil pipe leaked, visor damaged, front shocker pressed, mudguard damaged, right side pedal damaged, handle pressed and vehicle was off road i.e., it was not fit for road test and it could not be brought on the road.
6. PW5 Dr. Surjeet, Attendant Consultant, Max Hospital, Shalimar Bagh, Delhi deposed that on 31.05.2021, patient Ashwani Kumar Meena was SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 3 of 16 PS Adarsh Nagar brought to hospital with history of road traffic accident. He further deposed that he examined the patient and found that he had injury in his left leg. He also had minor abrasions on right hand little finger.
MATERIAL WITNESSES 7.1 PW1 Ct. Ashwani deposed that on 31.05.2021, he was on patrolling duty in the area alongwith ASI Mange Ram and was driving vehicle i.e., Gypsy. A message was being flashed on district wireless set regarding snatcher. He further deposed that they were going from Azadpur Flyover towards Majlis Park and parked the gypsy at Majlis Park Metro Station. He further deposed that a message was again flashed about the involvement of FZ vehicle involved in snatching. He also received a telephone call from Ct. Mukesh, who also informed him about the movement of FZ vehicle from Azadpur Flyover to Mukundpur. He further deposed that he saw the accused coming on the FZ bike and he made signal to stop the motorcycle from a distance of around 20-30 feet. Accused slowed down his motorcycle and asked him to get aside, otherwise he would run the motorcycle over him ( accused ne bola ki ek taraf ho jao nahi to tumhare upar gadi chala denge aur jaan se maar denge). He further deposed that he again made a signal to stop the motorcycle but accused drove the motorcycle in a very high speed and ran over him. As soon as he was hit by the accused, he caught him by his hand and pillion rider, who tried to run away was apprehended by ASI Mange Ram. He further deposed that their search was conducted by ASI Mange Ram and one mobile each was recovered from their possession. He further deposed that since he received injuries, he was taken to hospital by ASI Mange Ram and other staff members,who reached at the spot.
7.2 He further deposed that his statement was recorded at the hospital SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 4 of 16 PS Adarsh Nagar which is Ex. PW1/A. He further deposed that due to the incident, he received multiple fracture in his left leg.
7.3 During cross examination done on behalf of accused, he stated that he only received a bruise and very little blood oozed out from his injury. He stated that due to the impact, he had fallen down on the road but his trouser was not torn. He stated that there was no barricading at the place of incident. He stated that due to short notice, arrangement for barricades could not be made.
8.1 PW2 ASI Mange Ram was also on patrolling duty with PW1 Ct. Ashwani Kumar Meena. He deposed on the lines of PW1 in his examination in chief as to how incident occurred.
8.2 In addition, he deposed that the motorcycle was sent to police station through some staff member from the police station. He further deposed that upon checking the number plate of the motorcycle was found to be fake which was seized vide seizure memo which is Ex. PW2/A. He exhibited site plan as Ex. PW2/B, seizure memos of mobile phone recovered from the possession of accused and CCL as Ex. PW2/C and Ex. PW2/D, arrest memo of accused as Ex. PW2/E, personal search memo of accused as Ex. PW2/F, disclosure statement of accused as Ex. PW2/G and photographs of the motorcycle as Ex. PW2/H (colly).
8.3 During cross examination done on behalf of accused, he stated that no blood oozed out from the injury sustained by Ct. Ashwani. He stated that there was no barricading at the spot inspite of receipt of information as barricades were not available.
SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 5 of 16 PS Adarsh Nagar WITNESSES OF INVESTIGATION 9.1 PW6 Ct. Ajay Kumar deposed that on 31.05.2021, he joined the investigation with IO SI Rambir Singh and on receipt of DD No. 40 regarding an accident received from hospital, he alongwith IO went to hospital where IO obtained MLC of injured and recorded statement of injured Ct. Ashwani and came back to the police station. He further deposed that motorcycle recovered from both the accused persons was found parked in the police station and number plate of the motorcycle was found fake and same was found to be stolen from PS Sadar Bazaar. He further deposed that on checking the accused persons, one mobile phone was recovered from each of the accused and both the phones were found to be stolen i.e., mobile phone make Vivo was found to be stolen from the area of PS Shalimar Bagh and mobile phone make Samsung was found to be stolen from the area of Keshav Puram. 9.2 He further deposed that IO prepared rukka which is Ex. PW6/A and got the FIR registered. Accused Sunny @ Sameer was arrested, his personal search was conducted and his disclosure statement was also recorded. He further deposed about the apprehension of CCL 'S', his personal search and recording of his disclosure statement. He correctly identified the number plates having number DL 6S BC 1741 as the same number plates seized in his presence.
10. Vide statement under section 294 CrPC recorded on 08.07.2023, accused, admitted his date of birth documents which are Ex. PA1 (colly), registration of FIR No. 262/21 which is Ex. PA2 and certificate under section 65-B of Indian Evidence Act which is Ex. PA3 (colly) SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 6 of 16 PS Adarsh Nagar STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
11. After closure of PE, statement of accused was recorded u/s 313 Cr.P.C. on 22.04.2024, wherein he denied all the incriminating evidences put to him. He stated that he has been falsely implicated in this case.
He opted not to lead defence evidence.
12. Thereafter, matter was fixed for final arguments.
ARGUMENTS
13. I have heard Ld. Addl. PP for State and Ms. Kavita Aggarwal, Ld. Legal Aid Counsel for accused.
14. It was argued on behalf of State by Ld. Addl. PP for State that prosecution has successfully proved its case against the accused through credible testimonies of PW1 and PW2. Both of them were present at the spot at the time of occurrence of incident. PW1 Ct. Ashwani is the injured in this case, who along with PW2 has deposed categorically that accused drove the motorcycle and hit against him with an intention to kill him when he gave signal to stop him. The injuries suffered by PW1 are duly proved through PW3 Dr. Ashish Jain and it is also not in dispute that PW1 was not performing his duty as a police official, therefore, accused is entitled to be convicted for all the offences in which charge has been framed against him.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC
625. SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 7 of 16 PS Adarsh Nagar
15. Per contra, On the other hand Ld. Defence counsel Ms. Kavita Aggarwal, ld. Legal Aid Counsel for accused has argued that prosecution has failed to prove the intent to commit murder on the part of accused. It is a road accident which has been converted into a case of attempt to murder for the simple reason that the victim is a police official in this case. After the said accident, stolen mobile phones and stolen motorcycle with fake number plate was planted upon the accused. In absence of any evidence to prove the intent to commit murder, offence under section 307 IPC remains unproved. It was argued that prosecution has miserably failed to prove its case against the accused and accused is entitled to be acquitted.
16. I have heard the arguments at length and perused the entire record.
FINDINGS
17. The accused Sunny @ Sameer has been charged for the commission of offences punishable under sections 186/307/353/34 IPC.
18. The relevant sections are reproduced as under:
SECTION 186 IPC Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
SECTION 307 IPC Attempt to murder.--Whoever does any act with such intention or knowledge, and under such SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 8 of 16 PS Adarsh Nagar circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.--2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] SECTION 353 IPC Assault or criminal force to deter public servant from discharge of his duty:-
Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
SECTION 34 IPC Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]
19. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 9 of 16 PS Adarsh Nagar European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved.It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
20. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
21. It is argued on behalf of accused that the incident occurred at a public place and road No. 51 remains busy throughout the day but no public person has been cited as a witness as the story is a manipulated one. In absence of any explanation for non joining the public witness, the prosecution story cannot be relied upon by the court.
22. The argument qua absence of public person pertains to the issue SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 10 of 16 PS Adarsh Nagar whether any particular number of witnesses are required by the prosecution to prove its case against the accused or not. Law is settled that a person can be convicted on the basis of sole testimony provide the testimony is reliable, credit worthy and unblemished. As per section 134 of Indian Evidence Act it is the quality of evidence which is important rather than the quantity. In the present case, both material witnesses have deposed against the accused and narrated the whole incident which inspires confidence of this Court. PW1 and PW2 both stood the test of cross examination with firmness and defence has failed to elicit anything concrete in their testimony.
23. It is quite understandable and normal behaviour that a public person would not like to join a case as a witness wherein the accused is alleged to have caused injury to a police person. A police official is supposed to protect a citizen but when he himself is at the receiving end then an apprehension in the mind of a public person is likely to exist that in case he joins the proceedings as witness, the accused may harm him. The testimony of a police official cannot be disbelieved simply because he is a police official. In Abdul Sayeed Vs. State of MP reported in 2010 AIR SCW 5701 and State of UP Vs. Naresh and Ors 2011 4SCC 324 it was held by Hon'ble Supreme Court that evidence of an injured witness is genuinely considered to be very reliable and it is unlikely that he would spare the real assailants in order to falsely implicate someone else. The testimony of injured witness has its own relevancy and efficacy as he had sustained injuries at the time of alleged incident. The injury to the witness is an inbuilt guarantee of his presence at the spot. The deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence. The court has to consider the veracity and authenticity of the deposition on the face of it without getting affected about SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 11 of 16 PS Adarsh Nagar the status or post of the witness. Considering the trustworthy testimony of PW1 and PW2, I am of the considered view that absence of public witness is not a strong ground to disbelieve the entire case of the prosecution. Hence, the argument in this regard holds no merit and stands rejected accordingly.
24. As per the prosecution story PW1 Ct. Ashwani Kumar Meena and PW2 ASI Mange Ram were patrolling duty. They received information that snatchers would be coming on road No. 51 towards Azadpur Chowk riding on a a FZ bike. When they located the said bike, they tried to stop the same but accused Sunny, who was driving the said bike initially slowed down the bike but in an effort to avoid the apprehension by the police official, he drove the motorcycle in such a manner that he hit against both the officials. Complainant suffered a fracture in his left leg.
25. It is nowhere in dispute that PW1 and PW2 are not police officials or that they were not performing their official duty as a public servant. It is also matter of record that complainant suffered injuries during the said incident. It is also not in dispute that accused alongwith CCL was not apprehended at the time, place and date as claimed by the prosecution or that no such incident had happened. Ld. LAC has tried her best in cross examination of these witnesses but she has failed to rebut all these facts. Complainant was discharging his public function and by causing an impact with the motorcycle, accused obstructed him in performance of his duty as a public servant. While driving the motorcycle, he not only assaulted complainant but he also used criminal force to deter him from discharging his duty. Meaning thereby, ingredients of section 186/353 IPC are duly proved by the prosecution and accused stands convicted accordingly. SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 12 of 16 PS Adarsh Nagar
26. Accused has been charge sheeted and charged for committing offence under section 307 IPC. PW1 and PW2 have deposed that accused stated ek taraf ho jao nahi to tumhare upar gadi chada denge aur jaan se maar denge. This alleged threat given by the accused is the sole basis of invoking section 307 IPC against the accused. The court has to see and assess the circumstances in which these words were used by the accused. Admittedly, accused reduced the speed of the motorcycle when he was signaled to do so but he suddenly increased the speed.
27. The endeavour of the accused was to flee away from the clutches of the police officials and not to murder them. In common parlance, a person may use some words or phrases to express his feelings like anger, frustration, surprise, joy etc. These words or phrases are not meant literally or having been used with the same intent which is in consonance with the exact meaning of those words. For example, if an altercation takes place and one of the party says main tujhe chodunga nahin, it does not mean that he had the intent to eliminate the other party. It is a common phrase used by any common man during an altercation without any intent attached to it. The intent of using such phrases is to prove supremacy and superiority over the other party. Such phrases includes commons slangs which are part of normal wear and tear.
28. As stated above the aim of the accused was to save himself from the police officials and he might have shouted in so many words as deposed by PW1 and PW2. To prove an offence under section 307 IPC, prosecution is bound to prove the fact that accused had the intent, knowledge and act to commit the murder. The first intention of accused Sunny @ Sameer was to save himself from the police officials and the next intent was to drove the SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 13 of 16 PS Adarsh Nagar vehicle in a fast speed so that he could have fled away from the spot. His act in driving the motorcycle in a rash manner also fails to qualify the act contemplated in section 300 IPC. In a city like Delhi drivers are occasionally found driving motor vehicles in violation of traffic rules. As and when they are being stopped by the traffic police officials, their first aim to slip away and sometimes a mis-happening takes place resulting in injury to the driver as well as to police official. In my view, the present incident is of similar nature. Accused cannot be convicted under section 307 IPC on the pretext that he used the phrase ek taraf ho jao nahi to tumhare upar gadi chada denge aur jaan se maar denge as necessary ingredients of section 307 IPC are missing in the conduct of the accused. If he had the intent to commit murder of the complainant then he could have inflicted injury upon him after falling down from the motorcycle. He could have attacked the complainant to accomplish his alleged aim to commit his murder. The incident occurred all of a sudden and accused was not armed with any deadly weapon, therefore, his act cannot be termed as an act to commit murder by any stretch of imagination. Accordingly, he is entitled to be acquitted for committing an offence under section 307 IPC.
29. Now the next question remains to be answered, if accused has not committed an offence under section 307 IPC then whether he has committed any other offence or not. In that scenario section 333 IPC is relevant which is reproduced here as under:
Section 333 IPC Voluntarily causing grievous hurt to deter public servant from his duty :Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 14 of 16 PS Adarsh Nagar other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
30. First of all, it has to be seen as to what was the nature of injury suffered by PW1 during the incident. 'Grievous" injury has been defined in Section 320 IPC which is reproduced here as under section 320:
Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye. (Thirdly) -- Permanent privation of the hearing of either ear, (Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face. (Seventhly) --Fracture or dislocation of a bone or tooth. (Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
31. As concluded above, prosecution has proved that PW1 was performing his official duty as a public servant and accused in an attempt to fled away from the spot, drove his bike in such a manner which caused the incident and PW1 suffered a fracture on his left leg. The injury suffered by him is a grievous injury by virtue of section 320 IPC (seventhly). MLC of PW1 is proved as Ex. PW3/A and doctor opined that injury suffered by him were 'grievous' in nature. Therefore, ingredients of section 333 IPC are squarely SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 15 of 16 PS Adarsh Nagar covered and accordingly, accused stands convicted under section 333 IPC.
CONCLUSION
32. Considering the above discussion and material available on record I am of the first view that accused was driving the vehicle and when PW1 gave him signal to stop the vehicle and to come aside, he increased the speed and hit the vehicle against PW1. While doing so he also obstructed PW1 in performance of his duty as a public servant. As concluded above, the injury suffered by PW1 is a grievous one. Accused was facing trial under section 307 IPC but he is convicted under section 333 IPC. Hence, there is reliable and concrete evidence available on record to conclude that accused is guilty of committing offences u/s 186/333/353/34 IPC and he is acquitted from committing an offence punishable under section 307 IPC.
Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2024.09.03 16:29:38 +0530 Dictated and announced in the open (Dhirendra Rana) Court on 03.09.2024 ASJ:Special Judge (NDPS) (running in 16 pages) (North), Rohini Courts/Delhi SC No. 657/2021 FIR No. 262/2021 State Vs. Sunny @ Sameer Page No. 16 of 16 PS Adarsh Nagar