Delhi District Court
State vs . (1) Hari Chand on 7 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NW): ROHINI COURTS: DELHI
Session Case No. 870/07
Unique Case ID No.: 02404R0602942007
State Vs. (1) Hari Chand
S/o Dharam Pal
R/o 613 Pocket A,
Paschim Puri, Delhi
(Convicted)
(2) Naresh
S/o Tulsi Ram
R/o Jhuggi No. 8,
JJ Colony, Ashok Vihar,
Delhi
(Acquitted)
FIR No.: 602/2007
Police Station: Rajouri Garden
Under Section: 186/353/307/279/304/34 IPC
Date of commission to session court: 3.11.2007
Date on which orders were reserved: 2.12.2011
Date on which judgment pronounced: 2.1.2012
JUDGMENT:
As per allegations on 30.7.2007 at about 7:00 AM in front of Ghorewala Mandir at Najafgarh Road both the accused Hari Chand and Naresh in furtherance of their common intention drove Maruti van State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 1 bearing registration no. DL6CA1485 on a public way in a rash and negligent manner as to endanger human life and obstructed the public servants in discharge of their public duties. It is also alleged that while driving the aforesaid vehicle in the above manner the accused tried to run over ASI Ram Avtar with such intention or knowledge and under such circumstances that if by that act, they cause the death of ASI Ram Avtar, they would have been guilty of murder. Further, the accused caused death of one Raj Kumar @ Raju S/o Pale by running over with their above said Maruti Van with such intention or knowledge that their act was immanently dangerous as was likely to cause death. BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 30.7.2007 ASI Ram Avtar was posted as Incharge on ACR Van T27 in West Zone and at about 6:40 AM when the PCR Van was stationed near MTNL Office, Najafgarh Road, Delhi received a wireless message that one Maruti van of white colour with illegible number plate and broken front screen was coming in a suspicion condition. PCR Vans Power 34 and Power 43 tried to stop the said Maruti van but its driver had not stopped the same and attempted to run away with the van. ASI Ram Avtar received information that the said Maruti Van was going from Tilak Nagar to Subhash Nagar on which ASI Ram Avtar put his vehicle near Subhash Nagar turn on Najafgarh Road. In the meantime the aforesaid Maruti Van came from Tilak Nagar side on which ASI Ram Avtar gave signal to stop but its State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 2 driver had not stopped the van and turned the Van towards TC Camp. All the PCR vans chased the Maruti van and intercepted it near Ghorewala Mandir, Raghubir Nagar, Delhi. After the police officials stepped down from their vehicles, they tried to apprehend the driver of the Maruti van but the driver again tried to run away with the Maruti Van and with an intent to hit ASI Ram Avtar drove towards him but ASI Ram Avtar escaped. The driver hit the Maruti Van against one boy who was standing near Ghorewala Mandir and drove towards Paschim Puri with the aforesaid van. ASI Ram Avtar informed the incident to Power 25 and again chased the van along with P43, P29 and P27 and intercepted the Maruti Van near red light after crossing the ganda nala. The driver of the Maruti Van was apprehended whose name was known as Hari Chand and the person sitting in the van was also apprehended whose name was known as Naresh. In the meantime, public persons gathered and gave beatings to both the persons but PCR Officials saved them from the public and took them firstly at Madipur Chowki and thereafter to Police Post Raghubir Nagar. Both the accused were thereafter arrested and on 3031.7.2007 the injured Raju expired at Safdurjung Hospital after which Section 304 IPC was added. After completion of investigations charge sheet was filed against both the accused.
CHARGE:
Charges under Sections 186/307/279/304/34 Indian Penal Code were settled against both the accused to which they pleaded not State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 3 guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution as examined as many as eleven witnesses as under:
Public witnesses/ eye witnesses:
PW1 Paley Singh has deposed that on 1.8.2007 he along with the investigating officer had gone to the mortuary of S. J. Hospital and identified the dead body of his son Raj Kumar @ Raju after which the investigating officer recorded his statement vide Ex.PW1/A. According to the witness, he thereafter received the dead body vide memo Ex.PW1/B. He has deposed that his son Joginder was also present with him whose statement is Ex.PW1/C. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW2 ASI Gurprakash Singh has deposed that on the intervening night of 29/30.7.2007, he was posted as Incharge, PCR Vehicle i.e. Power 29 and on that day at about 6.45 AM, he received a wireless message that a Maruit Van of white colour with illegible registration number and broken wind shield, was being chased by PCR Power 43 and will be coming from the side of Tilak Nagar towards Subhash Nagar More. According to the witness, he also chased the above said Maruti Van from the location Ghorewala Mandir and altered other PCR Vehicles bearing No. P25, PW27 and P29. The witness has further State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 4 deposed that after crossing the Ganda Nala, the Maruti Van was intercepted by P43 and P27 by encircling the Maruti Van from all sides. According to him when crossing the Ghorewala Mandir More the van was driven rashly and negligently through the crowd. The witness has deposed that the accused Hari Chand was driving the aforesaid Maruti Van and the accused Naresh was sitting in the Maruti Van on the other front seat. According to the witness, when the Maruti Van was intercepted, ASI Ram Avtar, Incharge, P27 came out of his PCR Vehicle and proceeded towards the accused persons to apprehend them but the accused Hari Chand drove the Maruti Van towards ASI Ram Avtar with a view to run over him, but ASI Ram Avtar managed to save himself by jumping away.
With due permission of the court, Addl. PP for the State has cross examined this witness on which the witness as admitted that his statement was recorded by the investigating officer on 30.7.2007. He further admits that after ASI Ram Avtar saved himself, the accused drove the Maruti Van towards the Paschim Vihar side in a rash and negligent manner and ran over one passerby who was shifted by PCR P25 to the hospital. The witness has further admitted that subsequently the said Maruti Van along with accused persons intercepted on the red light after the ganda nala and the accused persons were apprehended and the public started beating them but were saved by the police and were taken to Police station Raghubir Nagar. The witness has deposed that the accused State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 5 Hari Chand had driven his Maruti Van intentionally towards ASI Ram Avtar with the intention to commit his murder.
In his cross examination by Ld. defence counsel, the witness has deposed that he had stated to the investigating officer that the van when moved from the spot, one person came suddenly before the van. Witness has stated that he did not file any message before the investigating officer or before the Court regarding 29/30.7.2007. According to him, on 30.7.2007 when he received the message, he did not put the same to the senior officer. He deposed that he reached the Ghore Wala Mandir at about 6:45 AM and at that time public persons also gathered there. According to the witness when he reached near Paschim Vihar at 7:45 AM, some public persons gathered at the spot and gave beatings to the accused Hari Chand. He denied the suggestion that accused Hari Chand was beaten by the police officer and not by the public persons. He has further denied the suggestion that on the day incident he was not on duty or that he had never joined any P29, P34 and P43 regarding this case. He has denied the suggestion that the injured was hit by P34 and not by the Maruti Van of accused Hari Chand.
PW3 ASI Ram Avtar has deposed that on 29.7.2007 he was posted as Incharge, PCR Van P27 in West Zone from 8 PM to 8 AM till 30.7.2007. According to him on 30.7.3007 at around 6.40 AM when their PCR Van was standing near MTNL office Najafgarh Road, Delhi, they received a wireless message that one suspicious Maruti Van of white State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 6 colour whose front number plate was not legible and whose front screen was broken was coming and that Power 34 and Power 43 tried to stop the said Van but its driver did not stop and instead attempted to run away and was chased by both PCR Vans from Tilak Nagar to Subhash Nagar. On receiving this information, they put their vehicle near Subhash Nagar turn on the Najafgarh Road and in the meantime the said Maruti Van came from Tilak Nagar side which they had tried to stop but the driver of the Maruti Van did not stop the vehicle and turned towards TC Camp.
According to the witness, they started chasing the Maruti Van which was being driven at a fast speed and after some chase PCR Van P23 and P43 intercepted the Maruti Van near Ghorewala Mandir, Raghubir Nagar and after stepping down from their vehicles they tried to apprehend the driver of the Maruti Van but the driver of the Maruti Van did not care for this and he again tried to run away with the Maruti Van and he with the intent to hit him (witness) drove the Maruti Van towards him (witness) but he escaped from being hit with the Maruti Van after which the driver of the Maruti Van hit the Van against one boy who was standing near Ghorewala Mandir and after hitting the boy the said Maruti Van ran towards Paschim Puri, which information was passed on to Power 25. Thereafter, they again chased the said Maruti Van near red light after crossing the ganda nala and the driver of the Van was apprehended whose name after inquiry revealed to be Hari Chand and the person sitting in the van was known as Naresh Kumar. According to the witness, in the State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 7 meantime the public persons gathered at the spot who gave beatings to the accused persons but they (police officials) saved them and took them at Madipur Chowki and thereafter to Police Post Raghbubir Nagar and thereafter they were handed over to SI O. P. Mandal. The witness has further deposed that the accused had obstructed them in performing their official duties and attempted to hit him (witness) with the Maruti Van with intention to kill him and also hit against one person near Ghorewala Mandir. The witness has identified his signatures on his statement Ex.PW3/A at point A. He has also proved the seizure of the Maruti Van vide memo Ex.PW3/B, the arrest memo of both accused vide memo Ex.PW3/C and Ex.PW3/D and their personal search vide memos Ex.PW3/E and Ex.PW3/F. The witness has correctly identified in the court both the accused and also the Maruti Van vide photographs Ex.P1.
In his cross examination by Ld. defence counsel, the witness has deposed that when they were chasing the Maruti Van, its registration number was not legible and when he saw the car with a broken windscreen while the doors were intact. Witness has deposed that they did not fire upon the Maruti Van to stop the same while chasing the same. According to the witness, no incriminating articles or any other illegal things were recovered from the car. He has further deposed that when they reached Ghorewala Mandir, they surrounded the vehicle and public persons from all the sides so as to prevent its running from the spot and one of the van was even posted in front of the said vehicle. According to State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 8 the witness, the site plan was prepared in his presence. The witness has deposed that they had chased the vehicle of the accused for about one kilometer as the accused had stopped on the red light and had not tried to jump the said red light. According to the witness, the accused drove his vehicle from Ghore Wala mandir, the injured was present on the road and when accused tried to move away, he (witness) went away and the injured received injuries by fall on the road. He deposed that he did not arrest any public persons who had given beatings to the accused. Witness has denied the suggestion that in fact the accused Hari Chand was given beatings by the police and a false story had been concocted to involve the accused Hari Chand. According to him, they reached police post Raghuvir Nagar at about 8:30 AM and that no personal search of the accused had been conducted in his presence. He is not aware if the accused had been prosecuted for driving the vehicle without license. He does not remember if he had signed the arrest memo of accused and deposed that he had signed some documents before leaving the police post. He has deposed that in his presence no information was sent to the family members of the accused regarding their arrested. Witness has denied the suggestion that the accused Hari Chand had not tried to hit him by his vehicle near Ghore Wala Mandir nor they have apprehended the accused near red light Paschim Puri. He has further denied the suggestion that the accused had not caused any injuries to the deceased and in fact the deceased was hit by one of the PCR vans and later on they State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 9 (police officials) had concocted a false story to involve the accused Hari Chand in this case.
PW6 ASI Devender Kumar (Retd.) has deposed that on 5.8.2007 on the request of the IO, he mechanically inspected the Maruti Van of white colour whose number was not readable vide report Ex.PW6/A according to which following damages were found :
1. Front windscreen glass was found broken.
2. Front bumper and body was found dented from left side.
3. Front left side indicator light was found damaged.
4. Left side door was found missing.
5. Left side tail light was found missing.
6. Front left side wheel rim was found bend/ dented.
The witness has identified the Maruti Van from the photographs lying on the judicial file which are Mark A1 to A4. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
PW7 HC Mahender Pal Singh has deposed that on the intervening night of 29/3072007 he was working in the PCR and his duty was from 8pm to 8am. On 30707 at about 6.40 am his PCR van was stationed in front of MTNL office, Rajouri Garden when the Incharge ASI Ram Avtar received a WT message that Power 34 and Power 43 are chasing a Maruti Van which was directed to stop but did not stop. The witness has deposed that the messenger asked ASI Ram State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 10 Avtar to reach at Subhash Nagar mor for his help and thereafter they reached there where one Maruti Van was found coming from the side of Tilak Nagar whose number plate was not clear. According to the witness, ASI Ram Avtar made the signal to stop it but, instead of stopping, the driver of the Van took the van towards TC Camp Raghubir Nagar and when the Van reached at near Goreywala Mandir, Raghubir Nagar, the Maruti Van was stopped by their PCR Vans P27, P29 and P43. The witness has deposed that when the driver of the said Van was tried to be apprehended, he hit his Maruti Van against ASI Ram Avtar and ran towards Paschim Vihar with the Van and also hit one boy standing near Goreywala Mandir. The witness has further deposed that ASI Ram Avtar flashed the message to Power P25 to take the injured who was standing near Goreywala Mandir, to the hospital. The witness has deposed that after crossing the gandanala, Red Light, Paschim Vihar, the said Maruti Van was stopped by P27, P29 and P43 and the driver was apprehended by them (police officials) and at that time a large number of public gathered there who started beating the accused. The name of the driver of the Maruti Van was revealed as Hari Chand and name of his associate was Naresh who was also in the Van. The witness has correctly identified the accused persons in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that the driver HC Sudesh Kumar was also with them and remained present during the investigation and they all were in police State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 11 uniform. According to him, he was sitting on the rear seat in the PCR van initially and Ram Avtar was sitting on the front seat near driver. He has deposed that the message had come from control room but he cannot tell the name of person who informed ASI Ram Avtar. Witness has admitted that his signature was not obtained on the seizure memo of the Maruti Van. He has denied that his signature was not obtained on the seizure memo of Maruti Van because he was not present there. Witness has further deposed that the Subhash Nagar is about 23 minutes away while going from MTNL Office Rajouri Garden by the vehicle. He does not know if the number plate of the vehicle was seized separately or not. He had seen the Maruti Van when he took turn towards TC camp, Raghubir Nagar. He admits that he did not see Power P34 and Power P43 upto Raghubir Nagar and that the site plan was not prepared in his presence. According to him, the driver of their (police) Van was sitting on his driver seat whereas he (witness) along with ASI Ram Avtar were out of the van and were waiting for accused. The witness has deposed that when the said van came at Subhash Nagar Mor, ASI Ram Avtar asked the van driver of the van to stop by making signal from his hand. He has deposed that he was the gunman and the gun was with him at that time. He did not take permission from ASI Ram Avtar to fire even on the tyre of the van nor he directed him to do so. According to him it was a very crowded place. He has also deposed that Power P43 and Power P29 met them at Goreywala Mandir, Raghubir Nagar. According to him, the road on State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 12 which Gorewala Mandir is situated is a six lane and public persons remains present at Gorewala Mandir but at that time there was no rush. He has further deposed that when they reached at Gorewala Mandir, the Van was ahead of them and other police vans were behind their vehicle and that ASI Ram Avtar did not leave any police official at the spot along with the injured. According to the witness, it takes about three to four minutes to reach the Paschim Vihar Red Light/ ganda nala from Gorewala Mandir and as soon as they reached at Paschim Vihar Red Light, they were immediate behind the vehicle of accused persons and the vehicle i.e P29 and P43 were immediately behind his (witness) vehicle and there were no other vehicles around their vehicle as there was a moving traffic. Further, according to the witness they tried to save the accused persons from the family members of the deceased and public persons, who were beating the accused persons. He has stated that he had mentioned in his statement under section 161 Cr.PC that public persons, who have beaten the accused persons but he did not specifically mention about the family members. When the witness was confronted with statement u/S 161 Cr.PC which is Ex.PW7/DX1, this fact is not specifically mentioned. Witness has further deposed that he did not notice whether the window panes of the Van of the accused from both the sides were opened or closed. According to him, the van in question was not challaned under the Motor Vehicle Act because despite their indication the driver did not stop the vehicle and ran away. He has further deposed that when they State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 13 caught them, they did not challan them. According to the witness, the copy of license was not demanded from the driver in his presence. Witness has denied the suggestion that the injured/ deceased had been hit by the police vehicle. He has further denied that the accused person was lifted from his house and his van also lifted from his house and that the van of the accused persons not in a running condition on that time when the police officials lifted the van. According to the witness, it is clear from Ex.PW7/DX1 that time of receiving the information is mentioned 8.40 AM when their vehicle was parked in MTNL Office, Najafgarh Road, Rajouri Garden.
Medical witnesses/ evidence:
PW4 Dr. Prem Kumar has deposed that on 1.8.2007 he conducted the postmortem report on the dead body of deceased Raj Kumar @ Raju S/o Passey Singh, aged 20 years, who was brought to the DDU Hospital on 30.7.2007 at 7:30 AM with alleged history of sustaining injuries on the body in an accident and had expired on 31.7.2007 at 1.20 AM. According to the witness, the cause of death in this case was head injury caused by blunt force impact which could be caused in the manner as alleged. The witness has deposed that all injuries were antemortem in nature. The postmortem report is Ex.PW4/A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 14
PW9 Dr. A. K. Jha, Medical Officer, DDU Hospital, has deposed that on 30.7.2007, he was working as CMO at DDU Hospital and Dr. Bansal was also working in the said hospital as Sr. Resident. According to the witness, on that day Dr. Umesh Bansal examined the patient Raju S/o Pale aged about 20 years male with alleged history of RTA vide MLC Ex.PW9/A bearing the signatures of Dr. Umesh Bansal at point A and bears his (witness) name at point D. Witness has deposed that Dr. Umesh Bansal was working under his supervision and he is well conversant with the handwriting and signatures of Dr. Umesh Bansal as he had seen him while writing and signing in the course of his official duty. This witness has not been cross examined on behalf of the accused despite opportunity and therefore the entire testimony has gone uncontroverted.
Official witnesses:
PW5 W/HC Santosh has deposed that on 30.7.2007, she was posted as duty officer in Police Station Rajouri Garden from 8 AM to 4 PM and on that day at about 11:20, on receipt of a rukka through Ct.
Raju Palwe sent by SI O.P. Mandal, he recorded the present FIR copy of which is Ex.PW5/A. He also made his endorsement upon the rukka vide Ex.PW5/B. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.
PW8 Ct. Raju Palwe has deposed that on 30.7.2007, he was posted as Ct. at Police Post Raghubir Nagar and on that day ASI State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 15 Rameshwar No. 2187 D, PCR Van P27 handed over two persons to him in the Chowki. According to the witness, the IO / SI O. P. Mandal left these two persons under his supervisions in the police post and himself went to DDU Hospital. He has deposed that after he returned from DDU hospital, he handed over a rukka to him at about 11:00 AM and sent him to the Police Station for registration of the case. He has also deposed that he took the rukka to the police station and after registration of the FIR came back to the Ghore Wala Mandir along with the copy of the FIR and original rukka which he handed over to SI O. P. Mandal. The witness has further deposed that in his presence SI O. P. Mandal arrested these two persons namely Hari Chand and Naresh. According to him, the accused Naresh was arrested vide memo Ex.PW3/D and his personal search was conducted vide memo Ex.PW3/F both bearing my signatures at point A whereas the accused Hari Chand was arrested vide memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW3/E both bearing his signatures at point A. The witness has further deposed that one Maruti Van DL6CA1485 was also seized in his presence vide memo Ex.PW3/A bearing his signatures at point A. In his cross examination by Ld. defence counsel, the witness has deposed that SI O. P. Mandal had handed over the accused persons to him at 8.30 AM. He has stated that no documentation was done when the accused persons were left in his custody by SI O. P. Mandal. Witness is unable to tell who directed SI O. P. Mandal to go to the hospital. He took State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 16 the rukka to Police Station Rajouri Garden where he got the FIR registered. He has deposed that after he came back from the police station on getting the FIR registered, no police official came along with him from police station Rajouri Garden to Chowki Raghubir Nagara and also states that no license was recovered from the possession of Ex.PW3/F when he was personally searched at around 2.15 PM by SI OP Mandal at Ghore Wala Mandir in his presence. According to the witness, from the possession of accused Hari Chand, neither any copy of challan nor any driving license was recovered in his presence. He has deposed that the arrest memo was prepared on the spot and he went to the police station with rukka on his personal vehicle. According to the witness the distance between police station Rajouri Garden and Police Post Raghubir Nagar is about two kilometer.
PW10 HC Kanwar Pal has deposed that on the intervening night of 2930.7.2007 he was posted in PCR and his duty was from 8 PM to 8 AM and was the Incharge of PCR Van P34. Witness has deposed that one Head Constable who was a Sikh gentleman whose name he did not remember at this stage was the driver of their Van. The witness has further deposed that they found a white colour Maruti Van coming from Tilak Nagar and was going towards Subhash Nagar at about 6 AM. He has deposed that the number plate of the said Van was not readable and the front wind glass was found broken. On suspicion, they chased the said car and tried to stop it but the driver did not stop it and ran towards State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 17 TC camp at a very fast speed on which he informed the control room. The witness has further deposed that there was another PCR Gypsy P43 with their PCR Van. When they reached near TC camp, their PCR Van P34 broke down. According to the witness, the message was flashed to control room regarding broke down of our PCR Van. The witness has deposed that the Head Quarter informed them that they are sending P27, P43 and P29 and they were asked to come back in some other PCR Van.
In his cross examination by Ld. defence counsel, the witness has deposed that at about 6.15 AM, he gave the information to the Police Control Room about his government vehicle which was broke down and the information regarding the clutch plate down of the said vehicle was given to Police Control Room. He has further deposed that on that day, he along with his driver were present in the said vehicle. He further deposed that the statement of the driver of the said vehicle was not recorded in his presence. The witness has deposed that his statement was recorded in the Police Station Rajouri Garden but he does not remember the exact time when his statement was recorded. According to him, their vehicle had broken down near TC Camp. He has deposed that after 20 minutes another vehicle had come at TC Camp to take their vehicle and he had gone along with his vehicle at Police Station Tilak Nagar.
PW11 SI O.P. Mandal has deposed that on 30.07.2007, he was posted at Police Post Raghubir Nagar, Police Station Rajouri Garden and on that day ASI Ram Avtar Incharge PCR brought the accused State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 18 persons Hari Chand and Naresh to Police Post Raghubir Nagar. According to the witness, he was informed that both the accused were involved in an incident where they had hit ASI Ram Avtar with their vehicle i.e. maruti van and thereafter were trying to run away when they also hit a small child. The witness has further deposed that ASI Ram Avtar as informed him that the accused were followed and apprehended at Red Light, Paschim Puri from where they were taken to Madipur Chowki as the public persons had gathered at the Red Light and were highly agitated on the conduct of the accused persons who had hit the small child and the life of these accused persons was in danger as the public was ready to beat them. The witness has further deposed that ASI Ram Avtar told him that thereafter the accused were brought to Police Post Raghubir Nagar from Madipur Chowki. According to the witness, ASI Ram Avtar thereafter informed the Duty Officer, Police Station Rajouri Garden and handed over both the accused to him (witness). The witness thereafter recorded the statement of ASI Ram Avtar which is Ex.PW3/A and on receipt of DD NO. 8 vide Ex.PX1, took both the accused to DDU Hospital where he also found one boy Raj Kumar @ Raju who had been injured on account of the fact that the accused had hit him with their vehicle also admitted. The witness has deposed that he tried to record the statement of Raj Kumar @ Raju but he was declared unfit for statement and therefore he returned back to the Chowki where he made an endorsement on the statement of ASI Ram Avtar and send Ct. Raju Palwe State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 19 to the Police Station for registration of the FIR. Thereafter, he took both the accused to the spot of incident in the same PCR van where he made the site plan on the pointing of ASI Ram Avtar which site plan is Ex.PW11/A bearing his signatures at point A. According to the witness, while he was still preparing the site plan Ct. Raju Palwe returned to the spot along with the copy of the FIR and the original rukka which he handed over to him. Witness has further deposed that the accused persons were interrogated and made a disclosure wherein they admitted having committed the offence. He thereafter recorded the disclosure of accused Naresh which is Ex.PW11/B and that of accused Hari Chand which is Ex.PW11/C and arrested both the accused persons. The arrest memo of accused Naresh is Ex.PW3/D and the arrest memo of accused Hari Chand is Ex.PW3/C and their personal search was conducted vide memos Ex.PW3/E and Ex.PW3/F and he then recorded the statement of the incharge PCR and the driver and returned to the Police Chowki where the Maruti Van driven by the accused was parked and he prepared the seizure memo of the same which is Ex.PW3/A. Thereafter, he took both the accused to DDU Hospital where their medical was got done and they were thereafter taken to Police Station Rajouri Garden and put them into lock up and produced before the Ld. MM on the next day. The witness has further deposed that on the intervening night of 3031.07.2007, he was informed that the boy who had been injured and State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 20 had been referred to Safdarjung Hospital where he has expired and therefore Section 304 IPC was added. He thereafter prepared the death report which is Ex.PW11/D, application made to Incharge, Mortuary, Safdarjung Hospital for postmortem is Ex.PW11/E. Thereafter, postmortem on the dead body was got done and the dead body was identified by the father of the deceased namely Pale Singh in the mortuary vide statement Ex.PW1/C. The dead body was identified by one Joginder Singh vide statement Ex.PW1/A. Thereafter, the dead body was handed over to Sh. Pale Singh vide receipt Ex.PW1/B. According to the witness, the said Maruti Van was got mechanically inspected vide report Ex.PW6/A. The witness has correctly identified both the accused in the court.
In his cross examination by Ld. Defence counsel, the witness has deposed that ASI Ram Avtar has stated in his statement that accused Hari Chand was the driver of the aforesaid Maruti Van. Witness has admitted that ASI Ram Avtar has not brought any public witness to the police post. According to the witness, during the investigation he did not ask any public person to be a witness in this case. The witness has deposed that ASI Ram Avtar handed over the accused persons in the police post at about 88:30 AM. He did not join any police official of Police Station Paschim Vihar or police post Madipur and has explained that the spot is a running road and therefore no public witness could be join even at the time of preparing the site plan. He thereafter prepared site State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 21 plan on 30.07.2007 at about 12 noon. Witness has admitted that there was some rehri wala and other shop keepers near the spot but no public person was cited as a witness on the disclosure statement of any of accused. Witness has further admitted that the police official remained present in the police post and police station 24 hours and that deceased has not given any statement to him. The witness does not remember as to whom the information of arrest of accused Naresh was given or by what means. According to him, the accused Naresh was arrested in the noon hours but he has no exact idea of time nor he is able to tell the details and the exact amount of personal search of accused Naresh. The witness has deposed that, he obtained the signatures of Ct. Raju Palwe on the memo of personal search. According to the witness, the Maruti Van was taken into possession in the noon hours but he does not have exact idea of time. He thereafter took the accused persons to the hospital after seizure of Maruti Van. The witness has denied the suggestion that he did not conduct the investigation of this case properly or that he had added Section 304 IPC in this case wrongly. He has further denied the suggestion that the accused persons had been falsely arrested in this case on the falsely statement of ASI Ram Avtar.
In his further cross examination, this witness has admitted that that personally he did not see any body driving the Maruti Van and has voluntarily added that he was only informed by ASI Ram Avtar. The witness has deposed that ASI Ram Avtar had given the age of the child / State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 22 victim as 1617 years. According to him, he did not go to the red light Paschim Puri. Witness has admitted that ASI Ram Avtar has informed him that accused Hari Chand was given beaten by public persons at Paschim Puri. According to the witness, ASI Ram Avtar had not given the name and addresses of those public persons who had beaten the accused persons and states that he did not ask ASI Ram Avtar as to whether he had taken an action against the public person who had beaten the accused Hari Chand. Witness has admitted that when the accused persons were produced in the Police Post, the accused Hari Chand was having injuries on his person but he (witness) does not remember the place on the body where there were injuries. According to the witness, the accused persons were got medically examined in DDU hospital but he does not remember the nature of injuries on the MLC though he admits to have received the copy of MLC. The witness has denied the suggestion that the public persons had not beaten the accused Hari Chand but he was beaten by police official in the Police Post that it is why no action was taken against the public persons. The witness has deposed that in his presence ASI Ram Avtar had not given any information to the Duty Officer of Police Station Rajouri Garden and that no memo was prepared by him regarding handing over the accused persons to him (witness) by ASI Ram Avtar. The witness has denied the suggestion that he did not prepare such memo because the accused persons had not handed over to him. He has further denied that the accused Hari Chand was lifted from State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 23 his residential house and thereafter he has been arrested falsely in this case. According to the witness, he recorded the statement of ASI Ram Avtar at about 8:30 AM and states that the accused persons were taken to DDU hospital in a private vehicle, a TSR but he did not take receipt of fare from the TSR driver. According to the witness, they took the way of Subhash Nagar while reaching to DDU Hospital. The witness does not remember the name of doctor whom he met firstly and who examined the accused Hari Chand. Witness has denied the suggestion that they did not go to the DDU hospital with the accused persons for their medical examination therefore he does not remember the names of doctors who had examined them. According to the witness, they stayed at DDU Hospital for about 1½ to 2 hours but he does not remember the time when they reached at DDU hospital. Witness has admitted that the accused persons were brought to lock up of Police Station Rajouri Garden. He has deposed that during his stay at DDU hospital, he did not conduct any other investigation in this case. He does not remember the time of their arrival at Police Station Rajouri Garden from DDU Hospital. The witness has further deposed Ct. Raju Palwe went with the rukka after about 11:00 AM exact time he does not remember. He also does not remember the exact time when he returned and states that it was after about 3045 minutes. After registration of the FIR, he reached at the spot at around 11:30 AM and at that time apart from the Incharge, PCR and the PCR staff who went with him, there were no other police official at the spot. State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 24 According to him, he did not find any blood stains at the spot. Witness has deposed that the width of the road where the incident had taken place is approximately 30 feet and there is no divider where the incident took place but there is a patri on both the side on the road, which patri he did not show in the site plan prepared by him. The witness has also deposed that there were three police officials in PCR comprising of ASI Ram Avtar, Driver Sudesh and third constable whose name he does not remember. Witness has denied the suggestion that he did not prepare the site plan that is why he did not signed any public witness thereon and has also denied that the disclosure statement were not made by the accused persons or that same were recorded by him of his own or that signatures of accused persons have been taken on blank papers under pressure. Witness has admitted that the fact that some one had informed him that one P34 (PCR Van) was broke down in the way but he does not remember as to whom this fact is mentioned. Witness has denied the suggestion that the victim sustained injuries due to the impact P34. The witness does not remember whether the driving license of accused Hari Chand was recovered from his personal search or not. He admits that he did not challan the accused Hari Chand for violation of traffic rules as he is not the witness to that effect. According to the witness, the accused Hari Chand was also arrested simultaneously with accused Naresh at a difference of about 57 minutes. Witness has deposed that he left the spot in the afternoon but he is unable to tell the exact time. The witness has State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 25 denied the suggestion that he is unable to tell the exact time of leaving the time because he did not go to the spot. The witness has admitted that the statement of witnesses under Section 161 Cr.PC were recorded in the Police Chowki. Witness is unable to give the exact time which he took in recording the statement of witnesses but has denied that he has deposed falsely. The witness has also denied the suggestion that the said Van was lifted from the house of accused Hari Chand and falsely implicated in this case.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence / material was put to them which they have denied. The accused Hari Chand has stated that he is innocent and has been falsely implicated in the present case. According to him, he was lifted from his house and was beaten by police officials. He has further stated that the Maruti Van was lifted from his house by police officials.
Similarly the accused Naresh has stated that he is innocent and has been falsely implicated. According to him, he was beaten by the police officials and obtained his signatures on blank papers. He has further stated that he was listed from his house.
The accused have examined Smt. Neelam as DW1 who is the wife of accused Hari Chand in defence. She has deposed that on State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 26 30.7.2007 at about 10:30 AM, one police gypsy along with two or three persons came to her house and inquired about her Maruti Van and her husband Hari Chand. According to the witness, at that time her husband Hari Chand was at home and their Maruit Van was also standing near the house in the gali and it was not in running position as its both doors and front windscreen were not there. The witness has further deposed that she asked the police officials as to what is the matter on which they told her that they had an information that the said Van is involved in an accident. According to the witness, she told the police persons that her husband and the said van had been in the house and had not gone any where but still those police officials took her husband to the Police Chowki, Raghubir Nagar and also followed them. The witness has further deposed that some public persons were also collected outside the chowki and after some time her husband was given beating by police officials and when she objected, they did not listen. According to the witness, when she and her employee Naresh objected to the same, the police officials also made Naresh to sit in the police chowki. The witness has further deposed that after about three to four hours at about 4 O'clock, she was told by the police officials that her husband was involved in accident case and she should go to the court next morning for his release.
In her cross examination by Ld. Addl. PP for the State the witness has admitted that she did not call on 100 number or any other number to inform the police about taking of her husband by the police on State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 27 the pretext of some accident stated to be caused by Maruti Van belonging to her. The witness has further admitted that the registration number of her Maruti Van is DL 6CA 1485. According to the witness, she remember at police post Raghubir Nagar till 4 PM and thereafter she went to meet the SHO who told her that her husband would be released after interrogation. The witness has denied the suggestion that her Maruti Van and her husband were not at home in the morning hours. She has further deposed that she did not tell any of her neighbours about taking of her husband and her Maruti Van from her house. According to the witness, the police took their Maruti Van but she is unable to tell how her Maruti Van was taken by them. She deposed that the police persons drove the Maruti Van to the police station but she is unable to tell the name of the person who drove the Maruti Van to the Police Post Raghubir Nagar. According to the witness, her Maruti Van was standing at her house since long as her husband was unwell. The witness is unable to tell if the Maruti Van was mechanically inspected or not. She has denied the suggestion that there were fresh damage on the vehicle. The mechanical report Ex.PW6/A was put to the witness wherein the fresh damages are observed by the mechanical inspector. The witness has stated that she is unable to comment on the report as she is not a technical person. The witness has denied the suggestion that her husband and her Maruti Van were not at home in the morning hours on 30.7.2007 and she has deposed falsely about the presence of her husband and Maruti Van in order to save State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 28 her husband from prosecution.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution. My findings are as under:
Identity of the accused:
In so far as the identity of both the accused is concerned, the same has been duly established. Both the accused Hari Chand and Naresh have been duly identified by the eye witnesses all of whom are police officers namely ASI Gurparkash (PW2), ASI Ram Avtar (PW3) and HC Mahender Pal Singh (PW7). The accused Hari Chand has been identified as the person who was driving the offending vehicle that is Maruti Van and the accused Naresh has been identified as the person who was sitting in the said vehicle. In view of the above, I hold that the identity of both the accused stand established.
Medical Evidence:
The case of the prosecution is that on the date of incident that is 30.7.2007 at about 6:40 AM the accused Hari Chand was driving the Maruti Van of white colour having damaged number place and broken front screen and therefore on getting suspicious he was directed to stop the said van by the PCR officials but he did not stop the same and State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 29 escaped after which the was followed by the PCR vehicle and while trying to escape Raj Kumar @ Raju S/o Pale was hit by the said Maruti Van being driven by accused Hari Chand at Ghorewala Mandir, Raghubir Nagar. The said Maruti Van was finally intercepted at Paschim Vihar red right from where they were beaten by the public persons after which the accused were taken to Madipur Chowki and later to Police Post Raghubir Nagar.
The MLC of the injured Raj Kumar @ Raju S/o Pale which is Ex.PW9/A has been duly proved by Dr. A.K. Jha (PW9) showing that the patient Raj Kumar @ Raju, aged 20 years was brought to DDU Hospital by ASI Paras Nath of PCR P25 with the alleged history of Road Traffic Accident. As per the MLC the patient was unconscious and was bleeding from the nose. Further, he was observed to be drowsy and there was withdrawal on painful stimuli and therefore, he was referred to surgery. It is also evident from the MLC that two cellphones (one Nokia and one Motorola) were found in his possession. Initially he was admitted in ESW and then transferred to higher center. The injured Raj Kumar @ Raju expired on the subsequent day and his postmortem report has been duly proved by Dr. Prem Kumar (PW4). As per the postmortem report Ex.PW4/A the case of death was head injury caused by blunt force impact which could have been caused in the manner as alleged (that is by hitting of Maruti Van). In view of the above, I hold that the death of Raj Kumar @ Raju has been caused on account of Road Traffic State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 30 Accident.
Mechanical inspection of the vehicle:
During the course of arguments Ld. Defence Counsel has vehemently argued that in fact the accused Hari Chand had been lifted from his house later on and beaten by the police officials and not by the public persons. He has also argued that Raj Kumar @ Raju had been hit by the PCR vehicle and in order to save their liability, they have falsely implicated the accused.
I have considered the submissions made before me. Here, I may observe that the mechanical inspection report of the offending vehicle that is Maruti Van has been duly proved by Retd. ASI Devender Kumar (PW6) which is Ex.PW6/A wherein he had noticed that front windscreen glass was found broken; front bumper and body was found dented from left side; front left side indicator light was found damaged; left side door was found missing; left side tail light was found missing and front left side wheel rim was found bend/ dented whereas other mechanical parts were found to be operative/ OK and the Maruti Van was found fit for road test. It is writ large from the above that the PCR had followed this vehicle in question because of its damaged condition the number plate of the vehicle being illegible and the front wind screen glass being broken and it was thereafter that while trying to escape the accused hit one passerby namely Raj Kumar @ Raju.
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 31 No independent public witness cited or examined:
Ld. Defence Counsel has vehemently argued that despite a large number of persons gathered at the spot, not even a single public witness has been joined during the investigations which raises a doubt on the veracity of the prosecution case. No doubt the argument raised by the Ld. Defence Counsel has substance but here, I may observe that the manner in which the incident and the quick sequence of events took place, non joining of the public persons has been duly explained. In fact the incident had happened in early morning at 6:40 Am at Ghorewala Mandir, Raghubir Nagar from where the accused had fled and were being followed by PCR and finally apprehended at Paschim Vihar red light after crossing the ganda nala. The public witnesses of Paschim Vihar red light had become agitated only after what had been told to them by the police. They were not eye witnesses to the original incident which had taken place at Ghorewala Mandir, Raghubir Nagar. Further, it is a matter of common knowledge that in the early morning hours not many public persons would have been available on the road specifically at the red light at Paschim Vihar though the presence of public persons at Ghorewala Mandir, Raghubir Nagar is natural. The record reveals that the injured was immediately rushed to the hospital in a drowsy condition in order to sage his life from where two mobile phones were recovered and the MLC shows an endorsement in the handwriting of some doctor (Dr. Ashish) with regard to the address showing that perhaps telephonic call had been State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 32 made from the said phone and the family of the injured was thereafter informed and his address came to be known. Therefore, the incident having taken place in quick succession the possibility of joining and citing public witnesses appear remote and I hereby hold that the non joining of public persons would not fatal the case of the prosecution. Allegations against the accused Naresh:
Coming first to the allegations against the accused Naresh. The only allegations against the accused are that he was sitting along with the accused Hari Chand in the offending vehicle. Not even one witness of the prosecution made any allegations of accused Naresh having exhorted the coaccused Hari Chand or of contributing in any manner to the commission of the offence. In fact ASI Gurprakash Singh (PW2) has admitted that the accused Naresh did not participate in the commission of offence. Therefore, it is writ large that there is no incriminating evidence against the accused Naresh and merely because he was sitting next to the main accused Hari Chand who was driving the offending vehicle will not make him culpably liable for any of the charges (i.e. Sections 186, 353,307,279,304 IPC) by invoking Section 34 IPC. The prosecution has failed to prove and establish the common intention so attributed to the accused Naresh beyond reasonable doubt and hence I hold that the allegations against the accused Naresh have not been proved and established beyond reasonable doubt.
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 33 Allegations against the accused Hari Chand:
In so far as the accused Hari Chand is concerned, he has been duly identified to be the driver of the offending vehicle that is Maruti Van of white colour with illegible number plate and front screen in a broken condition. It was around 6:40 AM when PCR P27 West Zone with ASI Ram Avtar (PW3) as the Incharge was standing nearing MTNL Office Najafgarh Road, Delhi that they received a wireless message that this Maruti Van was coming on their direction. PCR P34 and P43 tried to stop the said van but the driver Hari Chand did not stop and attempted to run away and therefore, the suspicion became strong, the said van was chased by both the PCR vans that is P34 and P43. While PCR van P27 which was stationed at Najafgarh Road near the MTNL Office received the message regarding this vehicle coming from Tilak Nagar to Subhash Nagar on which the PCR officials put their vehicle near Subhash Nagar turn on the Najafgarh Road when the said Maruti van came from Tilak Nagar Side. ASI Ram Avtar signaled the Maruti Van driver to stop the vehicle but he did not stop the vehicle and turned his van towards TC camp on which the PCR van started chasing the said vehicle. The Maruti Van was being driven at a fast speed and thereafter PCR Van P27 along with P23 and P43 intercepted the Maruti Van near Ghorewala Mandir, Raghubir Nagar and when the PCR officials tried to apprehend the driver of the Maruti Van, the said driver did not care and again tried to run away in which process, according to ASI Ram State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 34 Avtar (PW3) he (driver of Maruti Van i.e. accused Hari Chand) even tried to hit him but he escaped himself. However, one boy who was standing near the Ghorewala Mandir was hit by the said vehicle and after hitting him the driver of Maruti Van (Hari Chand) ran towards Paschim Puri in the Maruti Van on which information was passed on by ASI Ram Avtar to P25. All the PCR vehicles that is P32, P29, P25 & P27 chased the said vehicle and intercepted the same near Pashim Vihar red light after crossing the ganda nala when both the accused Hari Chand who was driving the offending vehicle and Naresh who was sitting next to him were apprehended. At Paschim Vihar red light large number of public persons had gathered and gave beatings to the accused though the police officials managed to save them and take them to Madipur Police Post and thereafter to Raghubir Nagar Police Post where they were handed over to the Investigating Officer.
In this regard the testimony of PW3 ASI Ram Avtar finds due corroboration from the testimony of HC Mahender Pal Singh (PW7) who was also with him in the same PCR van. It is further established from the testimony of HC Kanwar Pal (PW10) that his PCR van P34 broken down near TC Camp and therefore under these circumstances it was P27, P29 and P43 who had been chasing the Maruti Van being driven by the accused Hari Chand. Both ASI Ram Avtar (PW3) and HC Mahender Pal Singh (PW7) have been subjected to exhaustive cross examination. Here, I may observe that ASI Ram Avtar had not received State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 35 any injures. In his testimony before the Court, he has deposed that the accused Hari Chand had tired to hit him whereas HC Mahender Pal Singh (PW7) in his testimony deposed that ASI Ram Avtar was actually hit by the vehicle. Had this been so ASI Ram Avtar (PW3) would have sustained some injuries which is not the case. The place where ASI Ram Avtar (PW3) was standing, the direction in which the vehicle moves and how he as being hit or had been hit, has not been explained by any of the witnesses.
As per the provisions of Section 307 Indian Penal Code whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
To constitute an offence under Section 307 IPC, it is sufficient if an intent coupled with some overt act in execution thereof is present. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 36 knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.: Vipin Bihari Vs. State of MP reported in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. reported in 2003 (10) SCC 434; Hari Mohan Mandal Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances.
Applying the settled principles of law to the facts of the present case it is evident that ASI Ram Avtar did not receive any injuries. Under the given circumstances as narrated above neither the intent nor the knowledge so attributed by the prosecution to Hari Chand to commit murder of ASI Ram Avtar does not stand reflected. This being so I hereby hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Hari Chand.
However, in so far as the death of the deceased Raj Kumar @ Raju is concerned, I may observe that the witnesses SI Gurprakash (PW2), ASI Ram Avtar (PW3) and HC Mahender Pal Singh (PW7) have State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 37 deposed that when ASI Ram Avtar moved out and proceeded towards the Maruti Van to apprehend its driver, the driver of Maruti Van drove the Maruti Van towards ASI Ram Avtar with a view to run over him but ASI Ram Avtar managed to escape by jumping away and he ran over a passer bye who was removed to hospital by PCR P25. It is writ large from the above that there was no prior intention or premeditation on the part of accused Hari Chand either to hit ASI Ram Avtar or to the passer bye but it is only in the process of fleeing from the clutches of the police officers who had intercepted and following him, that he hit the innocent passer bye having panicked. There is nothing on record to show that Hari Chand was carrying any objectionable articles in the van or was trying to evade the police on account of some ulterior motive and the possibility of his having panicked on seeing so many PCR vans following him, cannot be ruled out. Here, I may observe that it is the duty of every citizen to abide by the lawful directions issued by public servants in discharge of their official/ lawful duties and when on seeing the suspicious condition of the Maruti Van, the accused Hari Chand was directed to stop, he should have done so which he did not and instead chose to flee and escape by increasing the speed of the Maruti Van. This certainly makes him liable for the offence under Section 186 Indian Penal Code.
Further, as per the provisions of Section 304 Indian Penal Code whoever commits culpable homicide nor amounting to murder, shall be punishment with [imprisonment for life], or imprisonment of State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 38 either description for a terms which may extent to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a terms which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
Also, as per the provisions of Section 304A Indian Penal Code which provides that whoever causes the death of any person by doing any rash or negligent act nor amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine. or with both.
In the case of Mohammed Aynuddin v. State of A.P. reported in AIR 2000 SUPREME COURT 2511 it has been held that:
A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 39 Now applying the settled principles of law to the facts of the present case it is evident that there was the gross indifference of mind on behalf of the accused to the consequence of rash and negligence which stands reflected reflected but certainly the knowledge and intent so required in order to bring the act of the accused Hari Chand under the purview of Section 304 Indian Penal Code is neither reflected nor proved. Hence, I hereby hold that the accused Hari Chand has no doubt committed an offence when he tried to escape from the clutches of the police perhaps having panicked seeing so many PCR vans following him but for the same he can only be held guilty of the offence under Section 304A Indian Penal Code (not under Section 304 Indian Penal Code). FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 40
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the identity of both the accused stand established. The accused Hari Chand has been identified to be the driver of the offending vehicle and accused Naresh was sitting next to him. It stands duly established that on 30.7.2007 while ASI Ram Avtar was posted as Incharge on ACR Van T27 in West Zone, at about 6:40 AM when the PCR Van was stationed near MTNL Office, Najafgarh Road, Delhi he received a wireless message that one Maruti van of white colour with illegible number plate and front screen broken was coming in a suspicion condition. It has also been established that when the Maruti Van came from Tilak Nagar side ASI Ram Avtar gave signal to stop but its driver (accused Hari Chand) had not stopped the van and turned the Van towards TC Camp. Further, it has also been established that the PCR vans chased the Maruti van and intercepted it near Ghorewala Mandir, Raghubir Nagar, Delhi and when the police officials stepped down from their vehicles to apprehend the accused, he again tried to run away with State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 41 the Maruti Van in which process the Maruti Van hit against one boy who was standing near Ghorewala Mandir. It stands established that thereafter accused ran towards Paschim Puri with the aforesaid van but ASI Ram Avtar informed the incident to Power 25 and again chased the van along with P43, P29 and P27 and intercepted the Maruti Van near red light after crossing the ganda nala. It has also been established and proved that case of death the case of death of Raj Kumar @ Raju was head injury caused by blunt force impact which could have been caused in the manner as alleged (that is by hitting of Maruti Van).
The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
However, it does not stand established that while driving rashly and negligently the accused tried to run over ASI Ram Avtar. There was the gross indifference of mind on behalf of the accused to the State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 42 consequence of rash and negligence which stands reflected reflected but certainly the knowledge and intent so required in order to bring the act of the accused Hari Chand under the purview of Section 304 Indian Penal Code is neither reflected nor proved. Hence, I hereby hold that the accused Hari Chand has no doubt committed an offence when he tried to escape from the clutches of the police perhaps having panicked seeing so many PCR vans following him but for the same he can only be held guilty of the offence under Section 304A Indian Penal Code (not under Section 304 Indian Penal Code).
In view of the above, I hereby hold the accused Hari Chand guilty of the offence under Section 186, 279 & 304A (not under Section 304 IPC) Indian Penal Code for which he is accordingly convicted. He is directed to be taken in to custody.
However, the prosecution has not been able to prove and substantiate the allegations against the accused Naresh beyond reasonable doubt and hence the accused Naresh is acquitted of the charges under Sections 186,307,279 and 304/34 Indian Penal Code. His surety be discharged as per rules.
Case be listed for arguments on sentence on the point of sentence qua the convict Hari Chand on 5.1.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 2.1.2012 ASJ (NW)II: ROHINI State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 43 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NW): ROHINI COURTS: DELHI Session Case No. 870/07 Unique Case ID No.: 02404R0602942007 State Vs. (1) Hari Chand S/o Dharam Pal R/o 613 Pocket A, Paschim Puri, Delhi (Convicted) (2) Naresh S/o Tulsi Ram R/o Jhuggi No. 8, JJ Colony, Ashok Vihar, Delhi (Acquitted) FIR No.: 602/2007 Police Station: Rajouri Garden Under Section: 186/353/307/279/304/34 IPC Date of conviction: 2.1.2012 Arguments heard on: 5.1.2012/ 7.1.2012 Date of sentence: 7.12.2012 APPEARANCE:
Present: Sh. Taufique Ahmed, Additional Public Prosecutor for the State.
Convict Hari Chand in judicial custody with Sh. Jitender Sethi Advocate.
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 44 ORDER ON SENTENCE:
Vide my detailed judgment dated 2.1.2012 the accused Hari Chand has been held guilty of the offence under Section 186, 279 & 304 A (not under Section 304 IPC) Indian Penal Code. However, the accused Naresh has been acquitted of all the charges.
The case of the prosecution is that on 30.7.2007 at about 7:00 AM in front of Ghorewala Mandir at Najafgarh Road both the accused Hari Chand and Naresh in furtherance of their common intention drove Maruti van bearing registration no. DL6CA1485 on a public way in a rash and negligent manner as to endanger human life and obstructed the public servants in discharge of their public duties. It is also alleged that while driving the aforesaid vehicle in the above manner the accused tried to run over ASI Ram Avtar with such intention or knowledge and under such circumstances that if by that act, they cause the death of ASI Ram Avtar, they would have been guilty of murder. Further, the accused caused death of one Raj Kumar @ Raju S/o Pale by running over with their above said Maruti Van with such intention or knowledge that their act was immanently dangerous as was likely to cause death.
On the basis of the testimonies of the various witnesses examined by the prosecution particularly the PCR officials who chased the vehicle driven by the accused, this Court has while acquitting the accused Naresh, held the accused Hari Chand guilty of the offence under Section 186, 279 & 304A (not under Section 304 Indian Penal Code) State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 45 Indian Penal Code.
I have heard arguments on the point of sentence qua the convict Hari Chand. The convict is aged about 40 years having a family comprising of aged parents, five married brothers, three married daughters, wife, three daughters (one of whom has been married) and one son. He is totally illiterate and is having a meat shop. He has already remained in judicial custody for about more than six months. Ld. Counsel appearing on behalf of the convict has vehemently argued that the convict Hari Chand is a first time offender and is not involved in any other case. He submits that the family of the convict are totally dependent upon him and any harsh view taken by this Court would be detrimental to his entire family. Ld. Counsel has further submitted that the convict has already paid a sum of Rs.1,20,000/ to the father of the deceased as a settled amount by the MACT Court. He has pointed out that one daughter of the convict has been married and the other daughter is of marriageable age. He requests that a lenient view be taken against the convict.
On the other hand Ld. Addl. PP for the State has argued that no leniency should be shown to the convict keeping in view the fact that he had obstructed the public servants in discharging their official duties and by the act of the convict, a young boy had lost his life. He requests that a strict punishment be awarded to the convict. State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 46
I have considered the rival contentions. The convict is a first time offender and is not involved in any other case. He has recently got married his daughter and his other daughter is also likely to be married shortly. The convict himself has lost his one kidney and his other kidney is also not functioning for which he is still undergoing regularly treatment. The father of the deceased Raj Kumar namely Pale has also appeared and has admitted that he has already received Rs.1,20,000/ from the convict as claim from the MACT Court and has no objection if a lenient view is taken against the convict. Keeping in view the fact that the incident which took place was an outcome of the panic situation created when as many as four PCR officials were racing after the convict and considering the medical condition of the convict Hari Chand who has lost his one kidney and is at the verge of loosing the other kidney and also because he is a first time offenders and has no criminal background and never absented and had regularly attended the trial, a lenient view is taken against him. I hereby award the following sentences to the convict Hari Chand:
1. For the offence under Section 186 IPC the convict is sentenced to Rigorous Imprisonment for a period of three months.
2. For the offence under Section 279 IPC the convict is sentenced to Rigorous Imprisonment for a period of Six months and fine to the tune of Rs.1,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of five days. State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 47
3. For the offence under Section 304A IPC the convict is sentenced to Rigorous Imprisonment for the period of already undergone and a compensation to the tune of Rs.1,50,000/ under Section 357 Cr.P.C. to be given to the father of the deceased namely Pale. This is in addition to the amount already paid before the MACT Tribunal. In default of payment of the compensation amount the same shall be liable to be recovered from the assets of the convict.
All the sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.1.2012 ASJII(NW)/ ROHINI
State Vs. Hari Chand, FIR No. 602/2007, PS Rajouri Garden Page No. 48