Delhi District Court
State vs . Anil & Anr. S.C. No. 155/2015 Date: ... on 10 January, 2017
In the Court of Sh. Ajay Kumar Jain, Additional Sessions
Judge02, South District, Saket Court, Delhi.
Session Case No. 155/2015
In the matter of :
State
Versus
1) Anil
2) Sunil
Both s/o. Bhakmal
Both r/o. S109/11, Kumhar
Basti, Mohammad Pur,
New Delhi
FIR No. : 317/2007
Police Station : R.K. Puram
Under section. : 186/353/332/333/34 IPC
Date of assignment : 04.12.2012
Reserved for order on : 09.01.2017
Date of decision : 10.01.2017
JUDGMENT
1) Prosecution case in brief is that on receiving DD no.4 B dated 23.05.2007 ASI Baj Singh alongwith Ct. Bansi Dhar reached the spot i.e Mohammadpur Kumhar Basti R.K. Puram where he met SI Virender Singh alongwith injured Head Constable Ram Niwas, Ct. Rajesh Kumar who were thus sent to Safdarjung State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 1 of 23 Hospital through SI Bansi Dhar. ASI Baj Singh recorded the statement of SI Virender Singh in which he is alleged that on 22.05.2007 at about 11:30 P.M., he alongwith Ct. Ravinder Singh, Ct. Ved Prakash and Ct. Rajesh while on patrolling duty present at Khoka Market Church Road where he met HC Ram Niwas, and at that time secret informer came and informed that some persons were taking illicit liquor in an iron box from Khoka Market towards Kumhar Basti and if raided they could be apprehended. Thereafter, SI Virender Singh asked twothree persons to join the raid however, all refused, then SI Virender constituted the raiding party consisting of HC Ram Niwas, Ct. Ravinder, Ct. Ved Prakash and Ct. Rajesh and reached Kumhar Basti and there secret informer pointed towards two boys who were taking the iron box, and they were stopped and the iron box was searched which was carrying the illegal liquor. On inquiry both persons disclosed their names as Prem Singh and Bhoop Singh, and in the meanwhile one Sunil and his brother Anil came to the spot, and the Sunil who was in the intoxicating stage started abusing the police and stated that the police used to disturb the public in the night also and tried to obstruct the police from doing the official duties. The police tried to pacify him however, he has caught hold the SI Virender from his neck, and started beating him thereafter when police party tried to separate him. Accused Anil also started beating the police party, and after shouting called other ladies from the house who also started beating the police party and tried to save the criminals found with illicit liquor. Accused Sunil caused scratch injuries by State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 2 of 23 the nails on the body of SI Virender Singh and also torned his T Shirt. Accused Anil also caused scratch injuries on the hand of Ct. Rajesh, in the meanwhile accused Sunil Dutt caused injuries from the danda lying nearby over the thumb of the HC Ram Niwas, thereby, accused Anil Dutt, Sunil Dutt alongwith his family members have tried to obstruct the police officials in discharging official duties and inflicted injuries. Consequent to recording of his statement an FIR under section 186/353/332/34 was registered.
2) During investigation site plan of the place of occurrence was prepared. Statement of witnesses were recorded, seized case property was deposited in the Malkhana. However during investigation it was found that the family members of accused Anil and Sunil were stopping accused Anil and Sunil for causing injuries to the police person and therefore they were not found as an accused. As MLCs of the injured SI Virender, Ct. Rajesh, HC Ram Niwas were collected and HC Ram Niwas was found to have suffered fracture injuries on the thumb opined to be grievous in nature. Therefore offence under section 333 IPC was added and on completion of investigation charge sheet was filed.
3) Vide order dated 15.04.2010, Ld. Metropolitan Magistrate have framed the charges against the accused Anil and Sunil for commission of offences under section 186/333/34 IPC and alternatively charge under section 332 IPC. However, vide order dated 29.11.2012 Ld. MM has observed that offence under section 333 IPC is triable by the court of Sessions, thus committed case to Court of Sessions. After committal charges were framed State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 3 of 23 vide order dated 12.12.2012 by this court for commission of offence under section 186/353/333/323/34 IPC to which accused persons pleaded not guilty and claimed trial.
4) Prosecution for substantiating its case, examined 14 prosecution witnesses. The summary details of their depositions is recorded as follows: PW2 ASI Ram Niwas, PW5 Constable Rajesh and PW10 SubInspector Virender Singh are the injured witnesses.
5) PW2 ASI Ram Niwas deposed that on 22.05.2007 he was posted at PS R.K.Puram and patrolling in the area when he reached Khoka Market, Church Road at around 11.30 PM he noticed SI Virender, alongwith Ct Ravinder, Ct. Ved Prakash and Ct. Rajesh Kumar were present and he also joined those officials. He further stated that he was told by SI Virender that he has secret information about the arrival of two persons with liquor bottles in huge quantity. Then SI Virender had asked 34 passersby but none was ready to join and thereafter they reached with the secret informer at Kumhar Basti at around 11.45 PM, and secret informer pointed out towards two persons having black iron box and thereafter they were overpowered. However, both tried to forcefully take the iron box from the police person and misbehaved and obstructed SI Virender and used criminal force against SI Virender and other police officials. He further stated that on hearing noise one public person Anil also came and tried to help both person. He also abused them and SI Virender, in the State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 4 of 23 meanwhile his brother Sunil also came. Sunil caught hold Virender from his tshirt as a result tshirt was torned. Thereafter, Anil and Sunil both called some ladies from the locality and started abusing and raised alarm against the police. He further stated that when he requested Anil and Sunil not to create disturbance as they are discharging police duty, he picked up one danda lying at some distance from the spot and hit the same on his left hand, therefore he sutained injury on his thumb. He further stated that he was taken for medical treatment by HC Ved Prakash in Government vehicle which was brought from PS. Ct. Rajesh Kumar and SI Virender also sustained injuries. He further stated that he suffered fracture on his thumb and discharged on the same day. In cross examination stated that he was on patrolling duty from 8 AM to 8 PM however cannot tell there is any departure or arrival entry in this regard. He further stated he reached the hospital at around 11.30 PM accompanied by HC Ved Praksh, Ct. Bansi Dhar and Ct. Rajesh in government vehicle and remained there for one and half hour. He further stated that other injured persons were also with them, when they went to hospital and he also taken one week medical leave. He denied suggestion that he deposed falsely at instance of SI Virender to save him from criminal prosecution for causing grievous / fracture injury to accused Sunil.
6) PW10 SI Virender Singh stated on 22.05.2007 he was on patrolling duty with Ct. Ved Prakash, Ct Rajesh , Ct. Ravinder and HC Ram Niwas also met them, and there one secret informer came to him and informed that two persons were carrying State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 5 of 23 illegal liquor. Thereafter 56 persons were asked to join the investigation but none of said persons joined the investigation and left without giving their names and addresses due to their genuine reasons. Thereafter, he constituted a raiding party and went to Kumhar Basti near a park and at the instance of secret informer apprehended two persons carrying iron box which found to carrying 54 bottle of illicit liquor. Both those persons revealed their names as Prem Singh and Bhoop Singh, then a boy Sunil came in intoxication state and started making abuses in the meanwhile one more boy Anil Kumar also reached. He further stated that they were saying "ye policewale raat me bhi tang karte hai sone nahi dete". Both of them tried to take away accused and case property. He further stated during scuffling accused Sunil caused bruises with his nails on his right forearm, and also pushed him and torn his tshirt. Accused Anil inflicted injures with his nails on Rajesh and when HC Ram Niwas tried to intervene accused Sunil picked danda and gave blow on left hand of HC Ram Niwas. He further stated that accused Sunil and Anil called ladies and then he sent message for additional police force. He further stated that ASI Baj Singh , HC Ved Praksh reached at the spot and HC Ram Niwas was sent to hospital. ASI Baj Singh recorded his statement then he conducted proceeding of recovery of liquor and separate FIR was registered in this regard. ASI Baj Singh then sent him and Constable Rajesh to hospital. After medical examination, he returned to spot and the site plan was prepared at his instance and seizure memo of tshirt and wooden danda also prepared. Then State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 6 of 23 IO Baj Singh sent rukka on his statement. Thereafter FIR was registered and accused Anil and Sunil were also arrested. And their personal search was conducted. He further stated that both the accused were arrested at his instance.
7) In cross examination stated that HC Ram Niwas and Ct. Rajesh were taken to Safdurjung Hospital at about 12.30 by HC Ved Prakash and Constable Bansi Dhar, and he went to Safdarjung Hospital. After half an hour and prior to that his statement was recorded by ASI Baj Singh over the proceedings regarding recovery of illicit liquor and it took about 3040 minutes. He do not remember, if anybody accompanied to Safdarjung Hospital and also do not remember the mode of transportation. He further stated he reached Sardarjung Hospital at around 1.30/2 AM and he met Ct. Rajesh in the hospital and no other police from police station or PCR there. He further stated that his treatment was started at 2.40 AM and that of Ct. Rajesh at 2.50 AM and reached the spot at around 3.30 AM. Then ASI Baj Singh prepared rukka and handed over the same to Ct. Ravinder to get the FIR registered. He further stated that then IO prepared site plan at his instance and Ct. Ravinder returned to spot with original rukka and FIR at around 4.30 AM and both the accused were present at the spot. Firstly, he was medically examined and then Ct. Rajesh was examined.
8) Accused persons were taken to hospital but he do not remember the time, and he had not seen the accused in the hospital. He further stated Ct.Rajesh and Ct Jai Bhagwan had State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 7 of 23 taken the accused for their medical examination at Safdarjung Hospital and then they were brought back to spot. He further stated they came back to spot after his reaching at the spot and all the proceedings continued till 7 AM and accused persons were arrested at about 5/6 AM. He further stated that he cannot tell what mode of transport was used by staff for taking accused and case property to PS. He further stated that he is not aware of the fate of the complaint of the accused persons in vigilance department. He further stated as to which of the accused had sustained injury on his left leg during that incident. He further stated that he cannot say if any Xray was done of any of the accused. He further stated that he do not know whether there was any thela rehri belonging to the accused Sunil at the spot. He further denied suggestion that when he reached the spot there was one truck thela and rehri belonging to accused Sunil, and bricks were being unloaded from the aforesaid truck at that time. He further stated that due to narrow space the arguments took place with the police gypsy therefore SI Virender gave beatings to accused Sunil. He further stated then accused Sunil ran towards his house, however, he was dragged thus fracture injury was caused on his left leg. He further denied suggestion that several persons were gathered at the police post.
9) PW5 Ct Rajesh also stated on the same lines and stated that at pointing out of secret informer two persons were apprehended carrying iron box containing liquor bottles. In the meantime accused Sunil came and abused them under the State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 8 of 23 influence of liquor and also then called his brother Anil. Then, he misbehaved with SI Virender, and accused Sunil caused abrasion injury on the person of SI Virender and accused Anil caused abrasion on his right arm with his nails. He further stated HC Ram Niwas sustained grievous injury, but he do not know how the injury was caused. He further stated one danda was used in the incident but he cannot tell how it was used as it was night time and several persons including the family members of the accused were gathered. And thereafter he and Ram Niwas were sent to hospital by ASI Baj Singh.
10) In cross examination, stated that he has not seen any truck, thela or rehri. However, vol. that it was due to the fact there was dark at the spot. He further stated that they were on foot during the patrolling and not used any vehicle to reach the spot. He further denied suggestions that accused were unloading the bricks from the truck and due to narrow space SI Virender going in his gypsy could not cross the road therefore beaten Sunil. He further denied suggestion that accused Sunil was beaten by SI Virender at police post where he suffered fracture injury on his left leg. He further stated he is not aware whether accused Sunil was taken to hospital for medical examination, however, he went for medical examination alongwith HC Ram Niwas around 12.45 Am to 1 AM, and came back to PS at around 3 AM. He further stated he is not aware of any arrival or departure entry of his patrolling or return from the hospital.
11) PW7 HC Ved Prakash also stated that after
State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 9 of 23
preparation of raiding party at the instance of secret informer arrested two persons namely Bhoop Singh and other name he does not remember and in the meanwhile accused Sunil and Anil under the influence of liquor reached there and started abusing them. Both grappled with SI Virnder. HC Ram Niwas also sustained injury while intervening. In cross examination stated that he can't recall if any person from spot had gone to the hospital. He further stated that he reached chowki at around 3/3.30 AM., when he reached chowki accused persons were not present there.
12) PW4 HC Ravinder stated that he was on the patrolling duty on that day and on receipt of secret information, they went to Kumhar basti where they noticed two boys with one black iron box containing illicit liquor, and when they are discharging duty, accused Sunil came to them under influence of liquor and also called his brother Anil and other family members also came at the spot, both of them had quarrel with SubInspector Virender Singh and other staff in which HC Ram Niwas has sustained injuries with danda, but stated he cannot tell by whom it was hit. He further stated that Constable Rajesh sustained abrasion injuries on his arms, but he cannot tell by whom it was hit. He further stated he cannot tell as to who used danda in the incident. In cross examination, stated that they reached at the spot at about 11.40 P.M. and he cannot tell the time when the injured was sent to the hospital. He further stated that he do not know as to which time injured came to the police station after treatment. He also denied suggestion that accused Sunil was State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 10 of 23 beaten by the police persons due to that he suffered fracture injuries.
13) PW1 Dr. S.K. Chandan, CMO of Safdarjung hospital exhibited MLCs of SubInspector Virender Singh, Constable Rajesh Kumar and HC Ram Niwas. As per MLC, HC Ram Niwas suffered grievous injuries. PW3 ASI Rajbala stated that as per daily diary register DD No. 10, on 22.05.2007 at around 02.20 A.M. Constable Sanjay left for patrolling in the area. She further stated that inadvertently the date in the copy of DD No. 10 was mentioned as 22.05.2007 whereas the correct date is 23.05.2007 and on that day at about 11.30 A.M. is the departure time of SI Virender Singh for patrolling in the area.
14) PW6 Constable Jai Bhagwan stated on receiving the call from chowki incharge, he reached at the spot and found Constable Rajesh, Ravinder and Ved at the spot, and he alongwith Constable Rajesh took Sunil and Anil to their medical examinations where their Xray was conducted and brought the Xray report and given it to the Investigating Officer. He further stated that he alongwith Constable Rajesh and accused reached at the hospital at around 01.00 A.M. in the night. He further stated that Xray of both the accused was got conducted and that accused Sunil was not able to walk properly, therefore his Xray was done. He denied the suggestion that accused Sunil was brutally beaten in the police chowki, therefore he suffered fracture in leg.
15) PW8 HC Ved Prakash stated that he reached at the spot on receiving the message and took HC Ram Niwas and State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 11 of 23 Constable Rajesh to the hospital. In cross examination stated that he received information from SubInspector Virender and after dropping the injured to the hospital, returned to the police station. PW9 SubInspector Rajesh Panwar, Duty Officer recorded the FIR. In cross examination stated that he received rukka at 12 in the night which is regarding quarrel and fight.
16) PW11 Investigating Officer Baj Singh stated that on receiving DD No. 4B regarding assault on police party, he went for the spot where he met SI Virender, HC Ram Niwas and Constable Rajesh and then recorded the statement of SI Virender Singh. He conducted the proceedings at the spot, recorded the statements and arrested the accused persons. In cross examination stated that he reached the spot at around 12.30 A.M. on scooter alongwith Bansidhar and all the injured (police officials) were shifted to Safdarjung hospital from spot after calling government vehicle, however, SI Virender sent later on after recording his statement and after initial treatment all the three injured returned to the spot at Government vehicle at around 02.45 A.M. He further stated that he conducted the proceedings till 07.00 A.M. and he alongwith injured persons and accused alongwith other police officials came to the police station from the spot together. He further stated that accused persons also medically examined and he himself had taken the accused for their respective medical examinations after 03.30 A.M. and came back to the spot before leaving for police station at around 06.00 A.M. He further stated that accused Anil further reported that he having State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 12 of 23 pain in his leg and when he took the accused from spot for medical examination, SI Virender remained at the spot guarding the exhibits at the spot.
17) PW12 Dr. Rekha Tarki exhibited the Xray report of HC Ram Niwas and stated that as per report, he suffered fracture injury on the thumb. PW13 HC Arun, maalkhana moharrar exhibited the maalkhana register regarding deposit of T shirt and wooden danda.
18) PW14 Sh. Kumar Gyanesh, DCP filed complaint under section 195 Cr.P.C. In cross examination denied the suggestion that he filed the complaint to save the subordinate officials.
19) Both the accused in their statement under section 313 Cr.P.C. denied all the incriminating evidence put to them, however, raised defence that they have been beaten by the police persons and their MLCs were also not prepared. They opted for defence evidence. For conducting DE, an application was filed on behalf of applicant/accused Sunil for producing the medical treatment record from the jail and submitted that accused Sunil suffered fracture in leg and remained under treatment in TIhar jail while in custody from 23.05.2007 to 06.06.2007 before being released on bail, however, a report was received on his application from the jail that no medical record department exists for maintaining such records. Therefore, no DE led by the accused persons.
Material exhibits
20) Ex.PW10/A is the statement of the SI Virender Singh State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 13 of 23 pursuant to which rukka Ex.PW11/A prepared and thereafter FIR Ex.PW9/A was registered. Ex.PW9/C is the DD No. 4B recorded in PS R.K. Puram at around 12.15 A.M. in the night regarding the incident of quarrel with the police by mob. Ex.PW9/B is the site plan of the occurrence. Ex.PW10/C is the seizure memo of T shirt and danda. Ex.PW10/D and Ex.PW10/E is the arrest memos of accused Anil and Sunil at around 06.00 A.M. Ex.PW10/F and G are the personal search memo of accused Sunil and Anil. Ex.PW1/A is the MLC of SI Virender Singh prepared at 2.40 AM showing simple injuries. Ex.PW1/B is the MLC of Constable Rajesh prepared at 02.50 A.M. showing simple injuries. Ex.PW1/C is the MLC of HC Ram Niwas showing grievous injuries. Ex.PW12/A is the Xray report of HC Ram Niwas showing fracture injuries in the thumb. Ex.PW3/A is the DD Entry No. 10, though showing 22.05.2007, but stated in the deposition it is 23.05.2007 and SI Virender Singh was sent in the area for patrolling at around 11.30 A.M. on 23.05.2007. Ex.PW11/B is the complaint under section 195 Cr.P.C. Ex.PW13/A is the entries of maalkhana register.
21) Ld. Counsel for the accused persons submits that accused persons have been falsely implicated and they have not caused any injuries to the police officials and on the other hand accused persons were severely beaten by the police officials. Ld. Counsel for the accused further submits that Investigating Officer has deliberately concealed the medical record of the accused State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 14 of 23 persons as accused Sunil has suffered fracture injuries. Ld. Counsel further submits that the prosecution witnesses are inconsistent in the manner of infliction of injuries to them. Ld. Counsel submits that accused persons are poor persons and the entire incident is due to the police atrocities and the entire mob was involved. Ld. Counsel submits that prosecution is unable to prove its case beyond reasonable doubt hence accused persons are entitled to be acquitted.
22) Ld. Additional Public Prosecutor for State submits that the injured witnesses categorically deposed before the Court that the accused persons have not only obstructed the police officials in discharging their public functions but also caused injuries. Ld. Additional Public Prosecutor for State further submits that as per the MLCs and the statement of injured witnesses, PW2 Head Constable Ram Niwas suffered grievous injuries. He further submits that nothing material came in the cross examination conducted on behalf of the accused persons to discredit the testimony of the police officials. Ld. Additional Public Prosecutor for State further submits that prosecution proved its case beyond reasonable doubts and accused persons are liable to be convicted for the charged offences.
23) Arguments heard. Record perused. 24) The genesis of the present incident as narrated by SI
Virender Singh (PW10) in his statement Ex.PW10/A given to Investigating Officer that on 22.05.2007 at around 11.30 P.M., he was on patrolling duty alongwith Constable Ravinder Singh (PW State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 15 of 23
4), Constable Ved Prakash (PW7) and Constable Rajesh Kumar (PW5) and at that time one secret informer came and informed about that two persons were carrying illicit liquor in an iron box. In the meanwhile HC Ram Niwas also joined them, who too was on patrolling duty. At the outset it is noticed that the prosecution did not file any documentary evidence regarding the fact that these all police officials were on patrolling duty in the said night. SI Virender Singh in his statement also stated that he do not know whether any entry of departure or arrival was made in the police station. There is a DD entry NO.10 (Ex.PW3/A) exhibited by PW3 ASI Rajbala, however, PW3 ASI Rajbala stated that the date 22.05.2007 mentioned in the said DD is wrong and the correct date is 23.05.2007. The incident stated to be occurred in the intervening night of 2223.05.2007 and PW10 SI Virender Singh is found to be departed for patrolling duty on 23.05.2007 at around 11.30 A.M. in morning, therefore the prosecution document itself suggest that SI Virender Singh was not on patrolling duty on the said night.
25) PW10 SI Virender Singh in his testimony as well as in his statement Ex.PW10/A stated that he constituted the raiding party consisting PW5 Constable Rajesh, PW7 Constable Ved Prakash, PW4 Constable Ravinder Singh and PW2 HC Ram Niwas for apprehending the person carrying illicit liquor in an iron box on the information of secret informer and asked to join 3/4 public witnesses to join the raid, however, there is inconsistency about the number of joining of public witnesses in their depositions.
State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 16 of 23 Admittedly, no public witness was joined, neither at the time of constitution of raiding party nor at the time of apprehension of the boys carrying illicit liquor. The constitution of raiding party also appears to be suspected as no intimation was sent by SI Virender Singh to the SHO or any other superior police officials regarding the constitution of the raiding party and conducting of raid as per the intimation of secret informer. Therefore, the genesis of the incident as narrated by the prosecution becomes suspect.
26) As per statement of SI Virender Singh Ex.PW10/A, the two boys were apprehended with black colour box containing illicit liquor, bottles. SI Virender Singh and other raiding party members except HC Ram Niwas (PW2) not stated that on seeing the police, the said boys tried to ran away and disturbed the police in discharging the public duty. However, PW2 Ram Niwas stated those boys tried to forcibly took away the iron box, misbehaved and obstructed SI Virender Singh. Furthermore, no documents regarding the arrest, recovery and other proceedings of that case filed with present case, therefore depriving the accused to effectively challenge those proceedings through cross examination. Therefore, the genesis of the dispute also become suspect from that aspect also.
27) As per statement of Virender Singh Ex.PW10/A, after apprehension of those boys, accused Sunil and Anil came and starting misbehaving with the police and also obstructed and manhandled SI Virender and Constable Rajesh, and in the meanwhile when HC Ram Niwas interfered, accused Sunil took the State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 17 of 23 danda and hit on the hand of HC Ram Niwas due to which he suffered injuries on his thumb. He further stated that these accused also caused scratch injuries on SI Virender and Constable Rajesh.
28) At this stage, it is pertinent to look at the charge sheet which suggest that family members including the ladies of accused Sunil and Anil gathered and started quarreling with them and caused injuries to them. As per DD No. 4B recorded at 11.15 P.M. (Ex.PW9/C), it was informed that mob has quarreled with the police in the area. Thereafter, the Additional SHO and patrolling staff in the area were informed. This DD suggests that quarrel was with the mob, however, in the charge sheet, it is only qua accused Sunil and Anil, who were specifically associated with the role of obstruction in public duty, but their family members were absolved on the ground that during investigation it was found that they were trying to save the police persons.
29) The police case from the concept of mob and involvement of family members is reduced to the involvement of the present accused Sunil and Anil without any tangible evidence on the record. This also creates doubt over the prosecution story and suggest that the incident might have happened in another manner as projected by the prosecution. As per DD No. 4B Ex.PW9/C, the patrolling staff was also informed. This itself also suggest that the patrolling staff was not with SI Virender Singh at the time of incident and creates suspicion also on the fact that other constables were on patrolling duty with SI Virender Singh.
State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 18 of 23
30) PW10 SI Virender Singh in his statement Ex.PW10/A as well as in testimony narrated the incident that accused Sunil came in intoxicating stage and started making abuses and in the meanwhile accused Anil also came. However, police has not filed any medical record or document to suggest that the accused Sunil was under intoxication at that time. PW10 Stated that accused Anil inflicted injuries through nail on Rajesh and Sunil caused bruises on him through nails on his right forearm and torned his T shirt and when HC Ram Niwas tried to intervene, then accused Sunil took a danda and gave a blow on the left hand of HC Ram Niwas. PW4 HC Ravinder stated that he cannot tell who caused abrasion injuries to Constable Rajesh and also stated that he also cannot stated as to who used danda in the incident. PW4 admittedly is the member of the raiding team and alleged to be present at that time. He specifically could not state who caused those injuries to the injured officials. PW2 Head Constable Ram Niwas himself could not point out which one of the accused caused injuries on his thumb. This supports the view that altercation between police officials with the mob and not specifically with accused Sunil and Anil. Prosecution has to prove the specific roles in inflicting the injuries over the police officials while they were discharging their duties. However, the testimony of PW4 creates doubt over the said fact.
31) The subsequent proceedings conducted after the incident also creates suspicion over the manner in which the incident might have taken place. PW11 IO Baj Singh stated that State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 19 of 23 on receiving DD No. 4/B (Ex.PW9/C) he reached the spot where he met SI Virender, HC Ram Niwas and Constable Rajesh, and he reached the spot at around 12.30 A.M. on scooter alongwith Constable Bansi Dhar and all injured were shifted to Safdarjung Hospital in Government vehicle, however, SI Virender sent later after recording his statement. Then, all the three after initial treatment, returned to spot in Government vehicle at 02.45 A.M. He further stated he also taken the accused persons for medical examination himself at around 03.30 A.M. and came back to the spot before leaving the police station at around 06.00 A.M. According to this witness (PW12) he sent injured SI Virender, Constable Rajesh and HC Ram Niwas who all came back to the spot at around 02.45 A.M., however, PW2 stated he was taken alone for medical treatment by HC Ved Prakash, but in cross examination that he reached the hospital at around 11.30 P.M. accompanying Constable Ved Prakash, Constable Bansi Dhar and Constable Rajesh, and further stated he remained there for 1 ½ hours and also stated that other injured were also taken with him. He further stated in cross examination that from hospital he went back to the police station. This statement is in contradiction to the statement of the PW11 IO, who stated that all the injured police officials after treatment came back at the spot at 02.45 AM and at around 03.30 AM, he has taken the injured persons to the hospital. PW2 HC Ram Niwas also stated that the injured were also taken with him to the hospital. PW10 stated that accused persons were taken to the hospital, but he do not remember the time and had not State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 20 of 23 seen the accused in the hospital. PW5 Constable Rajesh stated that he is not aware whether accused Sunil was taken to the hospital or not and he went for medical examination alongwith HC Ram Niwas and came to PS at around 03.00 P.M., however, he is not aware of any arrival or departure entry for his patrolling or return to the police station. PW7 HC Ved PRakash has given another colour in cross examination by stating he cannot recall if any person from the spot had gone to the hospital. This creates doubt over the manner of the occurrence of the incident as suggested by the prosecution case. PW4 HC Ravinder stated that he do not know when the injured were sent to hospital and when they returned after treatment. The story of medical examination after the incident as narrated by all the prosecution witnesses are inconsistent and thereby created the doubt over the manner of occurrence of the incident as suggested by the prosecution.
32) Now it is pertinent to look at the MLCs of the injured i.e. PW2 HC Ram NIwas, PW10 SI Virender and PW5 Constable Rajesh. MLC Ex.PW1/C of HC Ram Niwas suggest two MLCs No. i.e. 99875 and 2824. The prosecution did not explain how the two MLCs number were found on the said MLC. MLC of Ram Niwas shown to have prepared at around 12.30 A.M. whereas MLC of Constable Rajesh Kumar who stated to be went to the hospital alongwith HC Ram Niwas was prepared at around 02.50 A.M. The variation of the timings also create doubt whether both have suffered the injuries at the same time or in the manner as State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 21 of 23 suggested by the prosecution or in some other manner.
33) There is another important aspect in the present case is that the Ld. Defence Counsel for the accused submitted that accused Sunil suffered fracture injuries in the said incident due to beatings by police and in this regard he relied upon the bail order dated 06.06.2007 in which is was noticed that accused also suffered injuries and getting treatment in the jail. Ld. Counsel for leading defence evidence also called record from the jail but the jail authorities reported that no such medical record is kept in the said jail. From the evidence on record, it could be inferred that accused persons also suffered injuries in the said incident, however, prosecution concealed to put on record the MLC or the medical record of the injuries caused to the accused persons. PW 10 SI Virender in cross examination though denied to have caused fracture injuries to Sunil, but stated that he do not know which of the accused sustained injuries on the left leg. PW6 Constable Jai Bhagwan stated that he alongwith Constable Rajesh took Sunil and Anil for their medical examinations where their Xray was conducted and their Xrays were collected and handed over the same to the IO whereas PW10 SI Virender stated he do not know whether any Xray of the accused persons were conducted. PW 11 Investigating Officer Baj Singh taken the accused for medical examination, however, had not placed any record qua the medical examination of the accused persons. Though there is no material on record to suggest that accused Sunil got fracture injuries, but from the overall injuries on record, it is apparent that accused State Vs. Anil & Anr. S.C. No. 155/2015 Date: 10.01.2017 22 of 23 persons also suffered injuries and their Xrays were also conducted. However, their Xrays were not produced by the prosecution. Prosecution is obliged to present all material facts before the Court. The concealments of the medical record not only create a doubt over the manner in which the incident might have taken place, but also put finger on the fairness of the investigation.
34) The prosecution case is found suspect on the material facts viz presence of police officials on patrolling duty, constitution of raiding party, infliction of injuries on police official in the manner suggested and concealment of medical record of injuries suffered by accused persons.
35) It is cardinal principal of criminal law that prosecution has to prove its case as projected beyond reasonable doubt, however, in present case, prosecution not able to prove its case beyond doubt as projected. Hence, accused persons are entitled for benefit of doubt. As such, both accused Anil and Sunil are acquitted of the charge. Their bail bonds and surety bonds stand discharged after compliance of section 437A Cr.P.C. File be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN)
On 10th day of January, 2017 Additional Sessions Judge02,
South District, Saket Courts,
New Delhi
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