Delhi District Court
State vs . Raju Kumar on 29 October, 2015
FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 194/14 Unique Case ID No. 02404R0131622013 State Vs. Raju Kumar S/o Sh. Bhagirath Giri R/o Jhuggi No. 294, JJ Camp, Suraj Park, Delhi. FIR No. : 76/13 Police Station : S.P Badli Under Sections : 353/186/308/394/34 IPC Date of committal to Sessions Court : 15.07.2013 Date on which judgment was reserved: 29.10.2015 Date on which Judgment pronounced : 29.10.2015 JUDGMENT:
1. Initially, two accused persons namely Raju Kumar and Sunil had been chargesheeted for facing trial in respect of offences punishable U/s 353/186/308/394/34 IPC by the prosecution. However, during pendency of proceedings before Ld MM, accused Sunil moved an application claiming that he was juvenile as on the date of commission of alleged offences in this case. Consequently, enquiry was conducted by Ld MM and after conclusion of said enquiry, Sunil was declared juvenile vide order dated 26.04.2013 and he was directed to be produced before concerned JJB for appropriate proceedings qua him. This is how, accused Raju Kumar alone was committed to the Court of Sessions to face trial in State V/s Raju Kumar ("Convicted") Page 1 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 respect of the offences charged against him in this case.
2. The case of prosecution as mentioned in the chargesheet is as under:
(i). That on 10.02.2013, DD no. 24A was recorded in PS S.P Badli and same was entrusted to SI Sanjay (PW10) for appropriate action. Accordingly, SI Sanjay alongwith Ct. Vijay (PW6) reached at BSA hospital, where they found complainant Sanjeev (PW7) and accused Raju Kumar admitted there. SI Sanjay collected their MLCs. Complainant Sanjeev was declared fit for statement by concerned doctor;
(ii). Accordingly, SI Sanjay recorded statement (Ex. PW10/A) of complainant, wherein he claimed that he was working as driver in DTC and on that day i.e. 10.02.2013, he was on duty at DTC Bus no. DL1PC9580 plying on route no. 100 from Badli Railway Station to Central Secretariat and Parmod (PW2) was on duty alongwith him as conductor in the said bus. At about 3.10 pm, when they reached at Badli Railway Station and all the passengers got down from the said bus, he parked the said bus at bus stand situated near railway station. The doors of bus were opened. He was sitting on driver seat, when 34 boys came and started hitting punches on window glasses of the bus. When Parmod objected and asked them not to do so, they told Parmod that he would also be beaten up in the similar fashion. Thereafter, said boys came inside the bus and caught hold of State V/s Raju Kumar ("Convicted") Page 2 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 conductor Parmod. When he tried to rescue Parmod, said boys started beating him. One of them hit on his head and other boy hit brick to him and also hit brick on the foot of Parmod. On hearing the noise, public persons gathered there. One of the assailants who had hit stone on his head, was apprehended by the public persons, while his associates managed to flee away. The public persons gave severe beatings to said boy. He made PCR call at 100 number on which PCR Van came there and removed him as well as assailant whose name was revealed as Raju Kumar S/o Sh. Bhagwan (accused herein) to BSA hospital, Rohini. On the basis of aforesaid statement, SI Sanjay got the FIR in question registered for offence punishable U/s 308/34 IPC through Ct. Vijay. Investigation was entrusted to SI Sanjay;
(iii). During the course of investigation, SI Sanjay prepared rough site plan and also recorded statements U/s 161 Cr.PC of the relevant witnesses. Offence U/s 394 IPC was also added in the case;
(iv). It is further case of prosecution that accused Raju Kumar was arrested in this case and the weapons of offence i.e. stone and brick as also the wearing shirt of accused were seized;
(v). It is further case of prosecution that during police custody remand, co accused Sunil was also arrested on the identification of conductor Parmod and efforts were made to recover cash amount and bus tickets but same could not be recovered; and
(vi). It is further case of prosecution that result on MLC of State V/s Raju Kumar ("Convicted") Page 3 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 injured/complainant Sanjeev was collected and further investigation was transferred to SI Kaptan Singh (PW4). Offences punishable U/s 186/353 IPC were also added after discussion with senior police officers and requisite complaint in terms of Section 195 Cr.PC was also filed before the Court. After completion of investigation, chargesheet had been filed before the Court.
3. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
4. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge for the offences punishable u/s 186/353/308/394/34 IPC against the accused vide order dated 03.01.2014, to which he pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined as many as eleven witnesses namely PW1 Dr. Deepti, PW2 Sh. Parmod Kumar, PW3 Sh. Satbir Singh, PW4 SI Kaptan Singh, PW5 HC Banwari Lal, PW6 Ct. Vijay Kumar, PW7 Sh. Sanjeev Kumar, PW8 Sh. Virender Kumar, PW9 Dr. Dheeraj Gupta, PW10 SI Sanjay and PW11 HC Devender during trial.
6. It may be mentioned here that Ld. Additional PP dropped PWs namely Ct. Harender and Ct. Surender from the list of witnesses on 14.01.2015 and 18.05.2015, as both them were the witnesses of investigation in respect of JCL Sunil. Ld Additional PP has also dropped MHC(M) of PS KNK Marg who has been cited at Serial no. 3 of the list of witnesses.
7. Thereafter, statement U/s 313 Cr.PC of accused was recorded, State V/s Raju Kumar ("Convicted") Page 4 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 during which incriminating evidence were put to him but same was denied by him. The accused claimed innocence but his defence is of general denial. However, he did not opt to lead DE towards his defence.
8. I have already heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. Amicus Curiae Sh. Anuj Arya, Adv. on behalf of accused Raju Kumar. I have also gone through the material available on record.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss in brief the testimonies of prosecution witnesses examined during trial.
PUBLIC WITNESSES:
10. PW2 Sh. Pramod Kumar & PW7 Sh. Sanjeev Kumar: Both these witnesses are the star witnesses of prosecution as both of them were allegedly assaulted by the accused alongwith his associates including JCL Sunil as per story propounded in the chargesheet.
11. Both the said witnesses deposed on the lines of prosecution story during their respective chief examination by testifying that they were on duty in DTC bus no. DL1PC9580 plying at route no. 100 on 10.02.2013 at about 3.10 pm, when 34 persons including accused Raju Kumar had assaulted them.
12. PW7 categorically deposed that one of the assailant i.e. accused Raju Kumar had hit stone on his head while another assailant had hit brick on his head. He also deposed that police had recorded his statement Ex. PW7/A and got the FIR registered. He had also produced his blood stained State V/s Raju Kumar ("Convicted") Page 5 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 wearing shirt before IO who had seized the same vide memo Ex. PW6/B. He further deposed that accused Raju Kumar was arrested in his presence vide memo Ex. PW6/D.
13. PW2 also deposed that one of the assailants had robbed his conductor bag containing cash amount of Rs. 1700/, tickets, complaint book and passes and fled away from the spot after deboarding from the bus. He also deposed that he had joined investigation with IO on 11.02.2013, when accused Raju Kumar led them to E235, JJ Camp, Suraj Park, Delhi wherefrom Sunil (JCL) was arrested in this case.
14. Both the witnesses further deposed that on hearing their noise, public persons had gathered there and had apprehended accused Raju Kumar. PW7 made PCR call at 100 number on which PCR Van came and removed them to BSA hospital.
15. PW7 also identified brick Ex. P2, stone Ex. P3 as also accused Raju Kumar during trial. He also identified his wearing shirt Ex. P4 during trial.
16. In his cross examination, PW2 admitted that he used to deposit amount collected on the route only after completion of duty. Few rickshaws and reharies were parked near the bus stop. The place of occurrence was crowded place. Route on which DTC bus was parked, was a single road and there were factories behind the bus stand. He could not tell as to how much DTC tickets were lying with him at the time of occurrence. All the offenders had deboarded the bus from back side door of the bus. Many public persons had gathered after the occurrence. Driver State V/s Raju Kumar ("Convicted") Page 6 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 Sanjeev had made call at 100 number. He admitted that some blood had fallen down on the floor of the bus as also on the road. The entire incident occurred within 23 minutes. He could not tell the name of the person(s) who had apprehended accused Raju Kumar at the spot. He denied the relevant suggestions put to him during cross examination.
17. In his cross examination, PW7 admitted that in his statement Ex. PW7/A, it was not mentioned that offender had snatched/robbed their bag containing cash amount and tickets from the possession of conductor Parmod. He admitted that Badli railway station bus stop was crowded place and reharies, shops and rickshaw walas were present near said bus stop. The width of the road was approximately 10 meters and there was no road divider in between the said road. The offender had boarded the said bus from back door thereof and 2030 persons had gathered after the incident. He denied the relevant suggestions put to him on behalf of accused.
18. PW3 Sh. Satbir Singh: This witness got released the aforesaid bus on superdari on behalf of DTC. He deposed that Depot Manager of DTC had issued Authority Letter in his favour in order to release the DTC bus bearing registration no. DL1PC9580 on superdari. He proved said Authority Letter as Ex. PW3/A and also proved superdarinama as Ex. PW3/B. He also exhibited said bus as Ex. P1. This witness has not been cross examined by accused despite grant of opportunity.
19. PW8 Sh. Virender Kumar: He deposed that he was posted as Depot Manager at Rohini DepotIV, Sector18, Rohini since September, State V/s Raju Kumar ("Convicted") Page 7 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 2014. He produced relevant record regarding duty of Driver Sanjeev Kumar & Conductor Parmod Kumar on 09.02.2013. He deposed that on the day of incident, driver Sanjeev Kumar as well as conductor namely Pramod Yadav were on duty at bus number DL1PC9580 plying at route no. 100 from 8.05 pm to 4.15 pm. He exhibited attested true copy of driver memo as Ex. PW8/A and duty slips in respect of driver namely Sanjeev Kumar and conducted Parmod Kumar as Ex.PW8/B and Ex. PW8/C. He further deposed that he had also seen the details of lost tickets as well as cash received from conductor of said bus. He exhibited the said details as Ex.PW8/D. He also exhibited the details in respect of lost tickets given by Sh. Ramesh Dabas to IO as Ex. PW8/E and the statement made by Sh. Mahavir Singh, Incharge Ticket Sector as Ex. PW8/F. Nothing material has came on record during cross examination of said witness. POLICE WITNESSES:
20. PW4 SI Kaptan Singh: He deposed that on 03.03.2013, further investigation of the present case was marked to him. He accordingly obtained result on MLC and had also moved an application in order to obtain complaint U/s 195 Cr.PC from Depot Manager, RohiniIV and had prepared charge sheet of the present case. Nothing material has came on record during cross examination of said witness.
21. PW5 HC Banwari Lal: This witness was working as Duty Officer at PS S.P Badli on 10.02.2013. He proved factum about recording of FIR in question on the basis of rukka produced by SI Sanjay Kumar on State V/s Raju Kumar ("Convicted") Page 8 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 10.02.2013 at 6.50 pm. He proved computerized copy of FIR as Ex.PW5/A and his endorsement on the rukka as Ex.PW5/B. He denied the relevant suggestions put to him on behalf of accused.
22. PW6 Ct. Vijay Kumar: He deposed that on 10.02.2013, on receipt of DD no. 24A, he alongwith SI Sanjay went to BSA hospital, where both the injured persons namely Sanjeev and Parmod were found admitted in the hospital and accused Raju was also found present. IO SI Sanjay collected MLCs of both the injured persons and also recorded the statement of complainant Sanjeev and on the basis of statement of complainant and MLCs, IO prepared rukka. He exhibited seizure memo in respect of seizure of stone and brick by IO as Ex. PW6/A. He also exhibited one blood stained shirt of complainant as Ex. PW6/B. He also exhibited seizure memo in respect of seizure of DTC Bus as Ex. PW6/C. He deposed that accused Raju Kumar was arrested in his presence. He exhibited arrest memo as well as personal search memo of accused as Ex. PW6/D and Ex. PW6/E. He identified DTC Bus bearing registration no. DL1PC9580 as Ex. P1, brick as well as stone as Ex P2 and Ex P3 and blood stained shirt as Ex. P4.
23. In his cross examination, he could not tell if IO had sent exhibits to FSL Rohini and had obtained any subsequent opinion in respect of stone and brick seized during investigation. He deposed that IO did not record statement of conductor Parmod in his presence. He admitted that place of offence was situated in front of Badli Railway Station. In his presence, IO did not record statement of any independent public person. He admitted State V/s Raju Kumar ("Convicted") Page 9 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 that may public persons including shopkeepers/Rehariwalas were present at the spot when he reached there.
24. PW10 SI Sanjay: He is the main IO in this case. He has deposed about the entire investigation carried out by him. He testified that after receipt of DD no. 24A, he alongwith Ct. Vijay Kumar (PW6) reached the place of information and thereafter, they visited BSA hospital, where they found injured Sanjeev (PW7) and Parmod (PW2) admitted in the said hospital. Accused Raju Kumar was also undergoing treatment in the same hospital. He collected their MLCs and recorded statement (Ex. PW7/A) of Sanjeev and prepared rukka Ex. PW10/A on the basis thereof and got the FIR registered through Ct. Vijay Kumar. He further deposed that he returned back to the spot and seized DTC bus no. DL1PC9580, stone and brick lying inside the said bus, vide memo Ex. PW6/A after preparing their sealed pullandas. He also seized blood stained shirt of complainant after preparing its sealed pullanda, vide memo Ex. PW6/B and had also prepared site plan Ex. PW10/B at the instance of complainant Sanjeev.
25. He further deposed that he had arrested accused Raju Kumar vide memo Ex. PW6/D and had recorded his disclosure statement Ex. PW10/C. He also deposed that on 11.02.2013, complainant Sanjeev and conductor Parmod had joined investigation with him. On that day, accused Raju Kumar led to the arrest of Sunil (JCL). Despite efforts, robbed articles and cash could not be recovered during investigation. He identified the aforesaid bus (Ex. P1), brick (Ex.P2), stone (Ex.P3) and blood stained shirt (Ex. P4) during trial.
State V/s Raju Kumar ("Convicted") Page 10 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015
26. In his cross examination, he deposed that he had not sent the relevant exhibits to FSL till investigation remained with him. He also did not obtain any subsequent opinion in respect of stone and brick till investigation remained with him. He admitted that place of occurrence was situated in front of Badli Railway Station. 56 public persons were present at the spot when he reached there. He had requested them to make statement but they refused and left the spot. He admitted that accused Raju Kumar was found in injured condition and his MLC was also prepared. However, he denied the suggestion that he deliberately did not record statement of conductor Parmod at the first instance despite the fact that he was fit for statement. He also denied other relevant suggestions put to him during cross examination.
27. PW11 HC Devender: This witness was working as MHC(M) in PS S.P Badli during the relevant period. He deposed that on 10.02.2013, SI Sanjay Kumar had deposited one pullanda sealed with the seal of SD containing brick and stone and and an other pullanda sealed with the seal of SD containing shirt besides one DTC bus bearing registration no. DL1PC9580, in malkhana, vide entry at serial no. 3574 of Register no.
19. He exhibited copy of said entry in register no. 19 as Ex.PW11/A. He denied the relevant suggestions put to him on behalf of accused. MEDICAL EVIDENCE:
28. PW1 Dr. Deepti Bhalla: This witness had examined patients namely Pramod and Sanjeev on 10.02.13 in BSA hospital vide MLCs no. State V/s Raju Kumar ("Convicted") Page 11 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 1357/13 and 1358/13 Ex PW1/A and Ex. PW1/B. During cross examination, she deposed that injury sustained by Sanjeev was not possible due to fall on any hard surface.
29. PW9 Dr. Dheeraj Gupta: This witness had examined the X ray plates of injured persons namely Pramod Kumar and Sanjeev Kumar on 10.02.13 in BSA hospital. He proved his reports as Ex PW9/A and Ex. PW9/B. This witness has not been cross examined by accused despite grant of opportunity.
ARGUMENTS ADVANCED & CASE LAW CITED
30. While opening the arguments, Ld APP argued that prosecution has been able to establish the charges levelled against the accused beyond reasonable doubt. While so arguing, Ld APP referred to the testimonies of prosecution witnesses examined during trial more particularly the testimonies of PW2 namely Pramod Kumar and PW7 Sanjeev Kumar (complainant/injured).
31. Ld. APP further submitted that the accused has been duly identified by both the public witnesses during trial. He further argued that there is recovery of brick (Ex P2) and stone (Ex P3) used by assailants including this accused while committing the offences and therefore, accused is liable to be convicted.
32. On the other hand, it has been argued by Ld defence counsel appearing on behalf of accused that prosecution has failed to prove its case beyond shadow of doubt. He argued that prosecution story is full of lies State V/s Raju Kumar ("Convicted") Page 12 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 and there are several material contradictions appearing in the testimonies of prosecution witnesses, which create reasonable doubt in favour of the accused.
33. Firstly, I shall deal with the offences punishable U/s 186/353/34 IPC charged against the accused herein. It is needless to mention here that in order to bring home the charge in respect of offence punishable U/s 186/34 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
34. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court
35. In the case in hand, aforesaid two ingredients that PW2 and PW7 were public servants within the meaning of Section 21 IPC and they State V/s Raju Kumar ("Convicted") Page 13 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 were performing their official duty at the time of occurrence, are duly satisfied but the last and one of the most important ingredients of the offence that those public servants were obstructed or were prevented from discharging their public duty by any of the accused, is found missing. None of the relevant prosecution witnesses even whispered that any of them was obstructed or was prevented from discharging public functions by the accused herein. In other words, there is no iota of evidence available on record in this regard. Therefore, Court is of the view that prosecution has failed to prove the charge for the offence punishable U/s 186/34 IPC against the accused.
36. Now, I shall discuss about the offence punishable under Section 353/34 IPC. In order to prove the said offence, it was essential for the prosecution to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of section 21 IPC;
b). Said public servants were performing their official duty at the time of incident;
c). The accused either assaulted or used criminal force to any of those public servants while he or she was executing his/her duty as such public servant, or with intent to prevent or deter such public servants from discharging the duty.
37. Coming back again to the facts of the present case. As already State V/s Raju Kumar ("Convicted") Page 14 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 stated above, the prosecution has been able to prove that the public witnesses i.e. PW2 and PW7 were public servants and were performing their official duties at the time of occurrence, but there is no cogent evidence available on record to show that the accused either assaulted or used criminal force to any of them while they were discharging their duties as such public servants or with intent to prevent or deter them from discharging their duty. That being so, Court is in agreement with the contention raised on behalf of accused that prosecution has failed to establish their guilt in respect of offence punishable U/s 353/34 IPC.
38. Now, I shall deal with the offences punishable U/s 308/394/34 IPC charged against the accused. In order to establish the guilt of accused for the said offences, the prosecution has examined its both the key witnesses namely PW2 Parmod Kumar and PW7 Sanjeev Kumar (complainant) during the course of trial. Both the said public witnesses have deposed on identical lines and have fully supported the case of prosecution on material aspects. Both the said public witnesses have categorically testified that accused was one of the assailants who, in furtherance of his common intention with his other associates, had assaulted them. They have further deposed that accused herein had hit stone over the head of complainant Sanjeev Kumar and he was apprehended by the public persons immediately after the incident, while he was trying to escape.
39. Ld defence counsel assailed the testimonies of both the aforesaid public witnesses by pointing out that PW2 Parmod Kumar State V/s Raju Kumar ("Convicted") Page 15 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 nowhere deposed in his testimony that he was also hit by the assailant whereas PW7 has deposed that PW2 Parmod Kumar was also hit on his foot. He also referred to the relevant portion of the testimony of PW2 Parmod Kumar, in order to bring home his point that it was not possible for said witness to disclose the exact amount of Rs. 1700/ which was available in his conductor bag in the absence of any account of balance tickets left in his bag.
40. However, the aforesaid contradictions as pointed out on behalf of accused, are minor contradictions which do not go to the root of the prosecution case so as to disbelieve the testimonies of said two prosecution witnesses in entirety. It is well settled law that minor contradictions are immaterial and no benefit should be given to an accused on the said aspect. Still if any authority is required then reference with advantage can be made to the judgment reported at "JT 1999 (9) SC 43 State of H.P. Vs. Lekhraj and another" wherein it was observed by the Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
41. Hon'ble Apex Court has also held in the matter titled as "State of Rajasthan Vs. Smt. Kalki & Anr." reported at (1981) 2 SCC 752 that in the depositions of witnesses, there are always normal discrepancies State V/s Raju Kumar ("Convicted") Page 16 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
42. The next limb of argument raised on behalf of accused is that the story of prosecution as mentioned in the charge sheet, is bundle of lies and same has been concocted by complainant in collusion with the police for getting the accused falsely implicated in the case. Ld defence counsel assailed the testimonies of public witnesses i.e. PW2 and PW7 by arguing that statement U/s 161 Cr.PC of Parmod Kumar (PW2) was not recorded by the police immediately on 10.02.2013 despite the fact that he was medically fit to make the statement and no reason has been assigned by prosecution witnesses for not doing so. He argued that bus conductor Parmod Kumar (PW2) has deliberately concocted a false story in collusion with bus driver Sanjeev Kumar (PW7) and police officials after misappropriating the cash amount collected from passengers who travelled in the said bus on the day of incident, by putting the entire blame upon the accused.
43. Although, the aforesaid contention raised on behalf of accused appears to be impressive but there is no substance in the said argument. Had it been the situation where conductor and driver of the bus had concocted some false story, driver of the bus would not have made statement before the police immediately after the incident on 10.02.2013. In his police statement ( Ex PW7/A), complainant Sanjeev Kumar (Bus driver) has narrated about the sequence of facts which led to the incident in State V/s Raju Kumar ("Convicted") Page 17 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 question. Even otherwise, statement of conductor Parmod Kumar (PW2) is also not shown to have been recorded by the police after a considerable delay as his statement U/s 161 Cr.PC is shown to have been recorded on 11.02.2013. Not only this, complainant Sanjeev Kumar (PW7) is also shown to have made supplementary statement before IO on 11.02.2013 i.e. immediately on the next day of the incident in question. In the said supplementary statement, complainant has stated that during the course of incident, the assailants including accused Raju Kumar had also committed robbery of bag containing cash amount etc from the possession of conductor Parmod Kumar. Moreover, it was the duty of accused to put relevant questions during cross examination of PW2 as also during cross examination of IO i.e. PW10 SI Sanjay as to why he did not record the statement of conductor on the day of incident so that contradiction, if any, may come on record but unfortunately, no such question has been asked from the said witnesses from the side of accused.
44. There is also no merit in the argument advanced on behalf of accused that no independent public witness has been joined during investigation despite the fact that accused is claimed to have been apprehended by the public persons. In this regard, IO i.e. PW10 SI Sanjay has clearly explained during his cross examination that despite best efforts made by him to join public persons found present at the scene of crime, none came forward and they all left the spot. In this backdrop, no fault can be found on the part of investigating officer for non joining of independent public witness.
State V/s Raju Kumar ("Convicted") Page 18 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015
45. Moreover, the law on the point of testimony of stamped witness is now well settled. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
46. In the judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
xxxxxxx"
47. Not only this, the ocular evidence in the form of testimonies of PW2 Parmod Kumar and PW7 Sanjeev Kumar are duly corroborated by medical evidence in the form of MLCs Ex. PW1/A (of PW2 Parmod Kumar) and PW1/B (of PW7 Sanjeev Kumar) as well as by the testimonies State V/s Raju Kumar ("Convicted") Page 19 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 of PW1 Dr. Deepti Bhalla and of PW9 Dr. Dheeraj Gupta. The perusal of both the said MLCs would show that PW2 and PW7 were taken to BSA hospital with alleged history of assault and both the said witnesses were found to have sustained injuries on various parts of their respective bodies.
Both the said injured witnesses are opined to have sustained simple injuries as per opinion given by concerned doctor. The perusal of MLC (Ex. PW1/B) of injured/complainant i.e. PW7 further shows that he had sustained lacerated wound of the size of 3x1 cm over mid frontal region of his scalp and lacerated wound of approximately 3x.5 cm over right parietal region of scalp besides other injury.
48. Moreover, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused in his statement has claimed that he is innocent and he has been falsely implicated put but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the State V/s Raju Kumar ("Convicted") Page 20 of 21 FIR No. 76/13; U/s 186/308/394/353/34 IPC; P.S. S.P Badli DOD: 29.10.2015 police in implicating him. In the absence of this, I do not find any reason to throw out the testimony of witnesses.
49. The evidence available on record speaks sufficiently about the circumstances and the manner in which offence is shown to have been committed by the accused alongwith his other associates. It is duly established from the testimonies of relevant eye witnesses that the accused and his associates had participated during commission of offence. Thus, there is no iota of doubt that the present accused and his associates were sharing common intention to commit the offences within the meaning of Section 34 IPC.
50. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing on record that the accused Raju Kumar had caused injuries on the head and neck of complainant/victim Sanjeev Kumar (PW7) S/o Sh. Chandrup Singh and had also committed robbery of bag containing cash amount of Rs. 1700/, DTC Bus Passes, Complaint Book etc. after committing hurt to conductor Parmod Kumar (PW2) on 10.02.13 at about 3.10 pm in front of Badli Railway Station, near Bus Stand, Badli within the jurisdiction of PS S.P Badli. Consequently, accused Raju Kumar is hereby convicted for the offences punishable U/s 308/394/34 IPC.
Announced in open Court today
On 29.10.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Raju Kumar ("Convicted") Page 21 of 21