Delhi District Court
State vs Arvind S/O Sh Banarshi Dass on 27 January, 2018
In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02,
South District, District Court Saket, New Delhi.
Session Case No. 6865/16
In the matter of :
State
Versus
1. Arvind S/o Sh Banarshi Dass
R/o H.No. 150/2, Ward No.2, New Delhi
2. Bharat Kumar S/o Sh Banarshi Dass
R/o H.No. 150/2, Ward No.2, New Delhi
3. Sanjeev S/o Guru Darshan
R/o H.No. 178D5, Ward No.2,
Mehrauli, New Delhi.
4. Chakrant Singh S/o Kailash Singh
R/o Flat no. B9, Surya Apptt. 194,
Ward no.2, Mehrauli, New Delhi.
FIR No. : 461/11
Police Station : Mehrauli
Under section. : 186/353/332/308/34 IPC
Date of assignment : 05.06.2012
Reserved for judgment : 25.01.2018
Date of decision : 27.01.2018
JUDGMENT
1. Prosecution story as per chargesheet in brief that on receiving DD no. 16A dated 23.10.2011, ASI Ravi Shankar Tyagi alongwith Ct. Subhash Chand, Ct. Kailash, Ct. Subhash, Ct. Sumer Singh and Ct. Sher Singh reached the spot ie Raja Tailor Chowk, Ward no.2, SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg1of 15) dated 27.01.2018 Mehrauli, where he found the crowd was gathered and in the crowd, three persons were beating Ct. Anil Kumar and HC Jai Bhagwan, then those persons were controlled and thereafter Ct. Anil with Ct. Kailash were sent for medical, and recorded the statement of HC Jai Bhagwan who alleged that today he alongwith Ct.Anil while on patrolling at around 1.30 pm reached star home apartments, ward no.2 Mehrauli and found one person Arvind in a shop below this apartment selling crackers and they asked him about the licence who could not produce the same, thereafter he started misbehaving and abusing them, in the meanwhile his brother Bharat Kumar, friend Sanjiv and Chakrant came. Chakrant was having a iron rod and all started beating them and misbehaving with them. Arvind, Sanjiv and Bharat Kumar boosted Chakrant to hit police persons, thereafter Chakrant hit Anil Kumar on his head with the rod due to which he fell down then and there, and thereafter Arvind, Sanjiv and Bharat Kumar torned off the uniform of Ct. Anil, then he called at PS. Sanjeev, Bharat Kumar and Arvind apprehended at spot, however Chakrant ran away alongwith crackers with his known persons from the spot. Pursuant to his statement, present FIR was registered.
2. During investigation, IO ASI Ravi Shankar prepared site plan of place of occurrence, arrested accused Arvind, Bharat Kumar and Sanjiv. Seized the clothes of Ct. Anil, independent witness was tried to join but none agreed. The MLC of both injured were collected. Lateron, accused Chakrant was also arrested. Complaint u/s 195 Cr.P.C was also collected and on completion of investigation, chargesheet was filed.
SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg2of 15) dated 27.01.2018
3. On committal, vide order dated 22.08.2012, charges u/s 186/332/308/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial.
4. Prosecution for substantiating its case examined 14 witnesses. The summary details of depositions are as under.
5. PW10 Ct. Anil Kumar testified that on 23.10.2011 he alongwith HC Bhagwan was on patrolling duty and at around 1.30 pm asked Arvind the licence of fire cracker, however he failed to produce and at that time Arvind, Bharat alongwith his two friends Sanjiv and Chakrant was having iron rod and all started abusing and misbehaving with them, and thereafter many persons gathered. Accused Arvind, Bharat and Sanjiv told Chakrant to beat police officials thereafter Chakrant gave a blow on his head then he fell down. Accused persons also torned his shirt. Accused Chakrant took away all the crackers from he spot with the help of some other associates. HC Bhagwan informed PS. Thereafter, ASI Ravi Shankar alongwith other staff reached the spot and he was sent to AIIMS trauma center through Ct. Kailash. He further stated that he returned back to the spot and then ASI Ravi Shankar seized his blood stained torned shirt and pant after converting it into the pulanda.
6. In crossexamination stated that he has not made any departure entry of patrolling duty and went to patrolling on their respective private motorcycles, and do not know where they parked their vehicle before inspection. He further stated that they reached the shop of Arvind at around 1.30 pm and there were around 1 or 2 shops near his shop and it was not market. He further stated that SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg3of 15) dated 27.01.2018 initially there was no quarrel between HC Jai Bhagwan and accused Arvind. Accused had called other accused persons through phone and accused had not called persons for assaulting them. He further stated that he was not carrying any arms and also not remember whether HC Jai Bhagwan was carrying any arms or not. Accused Arvind started abusing them when he was asked to show the licence and accused Arvind and other persons started beating them after they reached the spot. Accused persons beat them for about 23 minutes and prior to that HC Jai Bhagwan called the police, and other police persons came within 1015 minutes. Blood also dropped on his uniform and came back to spot at around 3.30 to 4 pm. He further stated that he do not know whether blood was dropped at the spot or not. He further stated that Ct. Roop Ram was not present at the time of incident and crackers were lying on the spot and he know accused Arvind and Bharat prior to the incident. He denied suggestion that HC Roop Ram asked bribe from accused Arvind for carrying out crackers shop without licence and beaten accused Arvind. It is also wrong to suggest that accused Arvind called the police twice. It is further wrong to suggest that accused Chakrant and Sanjiv never came to spot and also denied suggestion that no iron rod was used.
7. PW11 HC Jai Bhagwan stated that on 23.10.2011, he was on patrolling duty with Ct. Anil and asked Arvind to show the licence of sale of crackers, however he became offending and started abusing. In the meanwhile, Bharat, Sanjiv and Chakrant also joined him then all the accused started using force against him and Ct. Anil, and they torned the uniform of Ct. Anil. Accused Chakrant SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg4of 15) dated 27.01.2018 brought an iron rod and gave its blow on head of Ct. Anil. In the meanwhile, Chakrant took away all the crackers, meanwhile he informed police which came and apprehended accused Arvind, Sanjiv and Bharat. On 31.10.2011, accused Chakrant was produced and thereafter he was arrested. In crossexamination, stated besides himself and Ct. Anil, no other police official was deputed as beat staff in their beat and they started the PS at around 9 am and parked their motorcycle in a gali. He stated that he asked Arvind the licence after which he started abusing, then called public at the spot and he might have called other accused also, however he do not know whether accused Arvind called 100 number or not and called the police only when accused started beating Ct. Anil. He further stated that accused Chakrant was not carrying rod when he came to spot. He further stated that he did not notice on which side of head Ct. Anil sustained injuries and also do not remember if blood dropped on uniform of Ct. Anil or not and also do not know how many police officials reached the spot. He further stated that as the crowd had gathered at spot as such beating and quarreling was stopped, however accused Chakrant ran away prior to arrival of police. The crackers were in cloth and not put on any cot or takhat. And statement of Ct.Anil was not recorded before sending him to the hospital. He do not remember the name of police official who took the rukka and site plan was prepared by IO prior to sending of rukka for registration of FIR. He denied suggestion that HC Roop Ram asked the bribe and also denied suggestion that Roop Ram beaten Arvind and also denied suggestion Arvind also called police twice. He also denied suggestion that accused Chakrant and Sanjiv SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg5of 15) dated 27.01.2018 never came to the spot. He also denied suggestion that when public gathered while running Ct. Anil sustained injuries.
8. PW12 SI Ravi Shankar investigating officer who reached the spot on receiving DD No. 16A with staff and found Ct. Anil and HC Jai Bhagwan at spot, apprehended accused Arvind, Bharat Kumar and Sanjiv at spot, thereafter on 31.10.2011 arrested accused Chakrant on appearance in PS and filed the chargesheet. In cross examination stated that he accompanied 5 police officials to the spot and when he reached the spot around 100 people present and accused were beating Ct. Anil and HC Jai Bhagwan and both were not doing anything and lying on the ground and he had not taken Ct. Anil to nearby doctor however directed Kailash to take him to trauma center and from hospital both came to PS at around 6.30 to 7 pm. He further stated that crowd told that they had beaten the police persons because they were checking licences. However, none of crowd person given their names and addresses and he sent Ct. Jai Bhagwan to hospital lateron. He further stated that he had not lodged the arrival entry at PS but only lodged entry after arrest at PS. He further stated that he made no effort to chase accused Chakrant. He further stated that they left for the recovery of rod at around 5 pm and reached within 15 minutes and seizure of rod was conducted at the roof. He denied suggestion that HC room Ram asked for the bribe.
9. PW13 Rajinder Singh ACP filed the complaint u/s 195 Cr.P.C dated 14.12.2011. PW1 Lady Ct. Mukesh duty officer at PS Mehrauli stated that on 23.10.2011 at around 8.20 am she made the departure entry of the picket duty at Ahinsa Sthal and Ct. Anil and SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg6of 15) dated 27.01.2018 HC Jai Bhagwan were sent for patrolling in the area.
10. PW2 Ct. Kailash Chand accompanied IO to the spot and found 3 persons quarreling with Ct. Anil and HC Jai Bhagwan who were overpowered and he took Ct. Anil to trauma center. In cross examination denied suggestion that recovery is planted over the accused. PW3 Dr. Lallan Kumar exhibited the MLC of injured Anil Kumar as well as Jai Bhagwan. PW4 Sumer Singh also accompanied IO ASI Ravi Shankar to the spot and found accused beating Jai Bhagwan and Anil, and statements of HC Bhagwan was recorded thereafter HC Subhash Chander took rukka to the PS. In crossexamination stated that Ravi Shankar called him at PS at around 12 noon then proceeded to spot where 100150 persons already gathered. He further stated that he took HC Jai Bhagwan to hospital at around 7 to 8 pm. PW6 HC Subhash Chander also accompanied the IO to the spot where he found all three accused beating the police officials. He took the rukka to PS. In cross examination stated that they left the PS at around 2 pm and went to spot on foot and he do not remember which police official caught which accused, IO requested public persons to join, however none agreed. PW HC Jagdish MHC(M) exhibited malkhana entries. PW8 Ct. Jai Veer Singh MHC(M) also exhibited malkhana entries. PW9 ASI Naresh Kumar duty officer who registered FIR. PW14 Dr. Rajender Kumar from FSL exhibited the biological and serological report.
11. Accused in their statement u/s 313 Cr.P.C denied all the incriminating circumstances put to them. Accused Arvind and SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg7of 15) dated 27.01.2018 Bharat Kumar raised the plea that the Ct. Roop Ram, Ct. Anil and HC Bhagwan came at office of Manish and Ct. Roop Ram demanded bribe of Rs. 25,000/ for allowing Arvind to sell crackers and when he denied Ct. Roop Ram slapped him and thereafter 100 number was also called. Public persons gathered and thereafter Ct. Room Ram, Anil and Jai Bhagwan started running from there, in the meanwhile, Ct. Anil fell down thereafter when police not reached then he alongwith his brother went to PS where police officials started beating them and implicated in present case.
12. Accused Arvind and Bharat examined Mahesh Lal @ Manish as DW1 who also stated that Ct. Roop Ram demanded money, on refusal he slapped Arvind, thereafter Arvind called Bharat who called at 100 number, in the meanwhile crowd gathered, police person thereafter ran away and Anil fell down then Bharat and Arvind went to PS on motorcycle but police did not listen to anybody and also kept Sanjiv and Chakrant. In crossexamination, stated that in his presence police never asked any bribe except present incident, and denies suggestion that he is deposing in favour of accused being interested witness.
Material Exhibits
13. Ex.PW11/A is the statement of HC Jai Bhagwan pursuant to which FIR Ex.PW9/A was registered. Ex.PW1/A is DD no. 5B recorded at around 8.20 pm showing HC Jai Bhagwan and Ct. Anil left for patrolling duty. Ex.PW5/A is DD no.16 A regarding intimation that HC Jai Bhagwan and Ct. Anil were beaten by some public, thereafter ASI Ravi Shankar alongwith other officials left for spot.
SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg8of 15) dated 27.01.2018 Ex.PW12/B is rough site plan. Ex.PW2/A is the seizure memo of the torned uniform of Ct. Anil having blood stains. Ex.PW11/E is the seizure memo of blood sample. Ex.PW2/B is the seizure memo of iron rod recovered at the instance of Chakrant dated 31.10.2011. Ex.PW11/D is disclosure statements of accused Chakrant. Ex.PW3/B is the MLC of injured Jai Bhagwan showing no visible external injury. Ex.PW3/A is MLC of injured Ct. Anil showing the laceration wound over the head of Anil Kumar, simple in nature. Ex.PW6/D, Ex.PW6/E, Ex.PW6/F are personal search memo of accused Arvind, Bharat and Sanjiv. Ex.PW11/C is personal search memo of accused Chakrant. Ex.PW6/A, Ex.PW6/B, Ex.PW6/C and Ex.PW11/B are the arrest memos of accused persons. Ex.PW12/B and Ex.PW12/C is the biological and serological report showing blood stains on shirts and pants.
14. Ld. Counsel for the accused submitted that the present accused person have no criminal background and are victim of high handedness of the police. Ld. Counsel submits that there are hundreds of public persons present at the spot, however police has not made them the witness despite their availability. Ld. Counsel submits that one constable Roop Ram had beaten the accused Arvind as he refused to pay the bribe to run the cracker stall. Ld. Counsel submits that the testimony of PW10 and PW11 is full of contradictions and even not supported through the MLCs. Ld. Counsel submits that as per the testimony, PW10 suffered injuries on the head through iron rod, however the MLC do not suggest that any suturing was done only treatment given was injection of tetnaus SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg9of 15) dated 27.01.2018 and vovron. Ld. Counsel further submits that PW11 is not found to have suffered any injuries, and to make him that he is also beaten by the accused the MLC Ex.PW3/B is made however the said MLC do not shown any external injury. Furthermore, the said MLC is made at around 8.24 pm which is contradictory to statements of witnesses and on the other hand suggest that this MLC is made to show that PW11 also suffered injuries in the said incident. Ld. Counsel further submits that the clothes of injured Ct. Anil are not sealed by doctors and there is inconsistency in the statements of witnesses regarding the manner in which the clothes are produced and sealed. Ld. Counsel further submits that there is doubt whether infact PW10 and 11 were on patrolling duty or not. Ld. Counsel further submits that the applicants are innocent and facing trial for last 7 years without any fault. Ld. Counsel further submits that the circumstances of recovery of rod at the instance of accused Chakrant is not at all reliable. Prosecution miserably failed to prove its case, hence accused are entitled to be acquitted.
15. Ld. Addl. PP on the other hand submitted that DW1 examined by defence itself supported the prosecution over the factum of presence of PW10 and 11 at the spot. Ld. Addl. PP submits that this witness also supported the presence of accused persons at the time of incident. Even stated that accused Sanjiv and Chakrant visited the police station. Ld. Addl. PP submits that this witness though stated that one Ct. Roop Ram asked the bribe, however also stated that no police official at any point of time demanded bribe from him or from anybody else in his presence. Ld. Addl.PP submits that DW1 has supported the prosecution case over the presence of accused as SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg10of 15) dated 27.01.2018 well as the injured at the spot. Ld. Addl. PP submits that testimony of injured PW10 and 11 is duly corroborated by the MLC's and furthermore, other eye witnesses ie PW12, PW2, PW4 and PW6 also supported the prosecution case. Nothing material came in their testimony to disbelieve their version. Ld.Addl. PP submits that prosecution able to prove its case beyond reasonable doubt, hence accused persons are liable to be convicted for the offences charged.
16. Arguments heard. Record perused.
17. As per prosecution case, PW10 Ct. Anil and PW11 HC Jai Bhagwan were posted at PS Mehrauli and went in the area for patrolling duty at around 8.20 am and this fact was recorded in DD no.5A (Ex.PW1/A). As per the statement (Ex.PW11/A), HC Jai Bhagwan alongwith Ct. Anil while patrolling on inquiry found that accused Arvind is selling the crackers unauthrisedly and when they asked about the licence, he could not produce and started abusing, thereafter his brother Bharat Kumar, friend Sanjiv and Chakrant came, and Chakrant was having iron rod in his hand, thereafter they all started beating him, then accused Arvind, Sanjiv and Bharat Kumar boosted Chakrant to hit with iron rod, thereafter Chakrant hit Ct. Anil with iron rod, then Ct. Anil fell down on road in blood stained conditions. Thereafter, all accused torned the uniform of Ct. Anil.
18. As per prosecution story both PW10 and PW11 were on patrolling duty and for that purpose prosecution relied upon the DD entry 5 B, however PW11 HC Bhagwan in crossexamination stated that they left for patrolling duty at around 9 am whereas PW10 Ct. Anil stated that they started from the PS for patrolling about 11 .30 am .
SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg11of 15) dated 27.01.2018 There is a susbtantial difference in timing reported by both these witnesses. This itself create doubt whether these officials were present on the spot at that time were on patrolling duty or not.
19. PW11 in his statement Ex.PW11/A stated that accused Arvind called his brother, thereafter accused Bharat Kumar, sanjiv and Chakrant came and Chakrant was having iron rod with him. However, PW11 HC Jai bhagwan in crossexamination stated that after abuse accused Arvind called public and number of public persons gathered and he might have called the other accused persons. In crossexamination, he has not specifically stated that accused called Bharat kumar, Sanjiv and Chakrant. He further stated that accused Chakrant was not carrying any iron rod when he first came to the spot. This creates doubt over the statement of PW10 and PW11 as deposed in their examination in chief where they stated that accused Chakrant at first instance itself brought the iron rod.
20. Both the witnesses stated that the incident of beating occurred at 1.30 pm and during said incident PW11 called the police and his information is recorded vide DD no.16A (Ex.PW5/A) at around 1.56 pm, thereafter IO ASI Ravi Shankar alongwith other staff reached the spot. PW10 Ct. Anil kumar stated that incident of beating might have took place for 23 minutes, however PW12 ASI Ravi Shankar (IO), PW2 Ct. Kailash Chand, PW4 Sumer Singh and PW6 HC Subhash Chander stated that when they reached the spot, they found accused persons Arvind, Bharat kumar and Sanjiv beating Ct. Anil and Ct. HC Jai Bhagwan. It is unlikely that when PW10 himself stated that incident of beating might took place for SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg12of 15) dated 27.01.2018 23 minutes then these witnesses who reached atleast 1520 minutes would find these accused beating the PW10 and PW11 by putting them on ground. It is the case of the prosecution that accused Arvind was selling cracker unauthorisedly on cot , however no such cot is shown in the site plan,furthermore there is an inconsistency in the statement of prosecution witnesses ie PW11 and PW10 whether accused are doing business on any floor or any cot.
21. As per prosecution case, PW10 on getting the iron rod injury fell on the ground and blood fall on his clothes. Further as per seizure memo Ex.PW2/A, huge amount of blood noticed on the uniform but no blood was found on the ground, however PW11 in cross examination stated that he has not noticed blood on the uniform of PW10. The injury is also stated to be with the iron rod, however iron rod was also not shown to doctor for subsequent opinion whether from the said iron rod, the injury in question could have taken place particularly, when the injury is not noticed to be serious in nature and only found to be simple in nature even without any suturing etc. MLC do not suggest any blood on the clothes. The manner of handing over of the clothes to the IO do not appear to be convincing. Even otherwise, only pockets are found torned with two buttons which do not also appear to be natural outcome when this constable is consistently beaten by four persons. PW11 was also stated to be beaten by accused, however no injury was found on his body as per MLC Ex.PW3/B. This all create doubt over the manner of occurrence of incident.
22. Accused Chakrant stated to have absconded from the spot with the crackers however police not able to seize the crackers and on SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg13of 15) dated 27.01.2018 appearance of accused on 31.10.2011 ie 8 days after the incident shown to have recovered one iron rod , that iron rod also not appears to have been carrying any blood stains. Furthermore, the iron rod as recovered from the roof where the accused Chakrant was residing and no independent witness was joined form that building for recovery of said iron rod. In overall facts and circumstances, the use and recovery of iron rod also do not appear to be at all credible.
23. Ld. Addl. PP submitted that the testimony of police officials cannot be disbelieved on minor contradictions and their testimonies is duly supported by MLCs, however as discussed, the testimony of both these injured witnesses do not suggest that they suffered injuries in the manner alleged by them. Prosecution not able to produce any single independent witness despite presence of so much crowd at every point of time during the investigation. IO also admitted that he made inquiries from the public but none agreed to become witness, however other accompanied police officials on the contrary stated that IO had not joined any public witness during investigation.
24. Accused Bharat and Arvind examined defence witness DW1 Manish @ Mahesh Lal who on the contrary stated that one Ct. Roop Ram also accompanied them and also slapped Arvind, thereafter public gathered. Ld. Addl. PP submits that statement of this defence witness cannot be relied upon because he has not made any complaint to the police and also stated at no other point of time any police persons demanded money from him. Though the testimony of this witness do not appear to be fully credible, SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg14of 15) dated 27.01.2018 however from his testimony it can be inferred that number of public persons gathered and also reached PS after the incident but no heed was paid by the police.
25. Prosecution is obliged to prove its case in the manner alleged and cannot rely upon the weakness of defence but has to stand on its own leg, however as discussed, the prosecution case appears to be discrepant over the factum whether PW10 and PW11 were on patrolling duty at the time of incident. Furthermore, the use of iron rod and beating of these witnesses in the manner deposed also do not appear to be credible beyond doubt. The number of public witnesses were present at the spot, however none of public witnesses was joined as witness.
26. On appreciation of overall evidence on the record, prosecution not able to prove its case beyond reasonable doubt. Hence, all the accused Arvind, Bharat Kumar, Sanjeev and Chakrant stands acquitted of the charge by granting benefit of doubt. Accused persons are directed to execute bail bond in terms of section 437A Cr.P.C in sum of Rs. 20,000/. After compliance of section 437A Cr.P.C, file be consigned to record room.
Announced in the open Court (AJAY KUMAR JAIN)
On 27th day of January, 2018 ASJ02 (South)
District Court Saket / New Delhi
SC No.6865/16 , S/v Arvind etc., FIR No. 461/11, PS Mehrauli (pg15of 15) dated 27.01.2018