Delhi District Court
State vs . Mukesh @ Aman on 7 December, 2019
1
IN THE COURT OF SH. FAHAD UDDIN METROPOLITAN
MAGISTRATE-01(CENTRAL), TIS HAZARI COURTS, DELHI 110054
FIR No.122/10
PS Prasad Nagar
State Vs. Mukesh @ Aman
U/s 186/353/332/34 IPC
Unique Case ID No. 292127/16
JUDGMENT
(a) Sr. No. of the Case 292127/16
(b) Date of offence 24.08.2010
(c) Complainant H.C. Manoj Kumar
(d) Accused 1. Mukesh @ Aman
S/o Subhash Chand
R/o H.No. 7032, Gali no.2, Mata
Rameshwari, Nehru Nagar, Delhi.
2.) Mukesh @ Matka
S/o Dharm Chand,
R/o H.No. B-431, Pandav Nagar, near
Patel Nagar, Delhi.
(e) Offence U/s 186/353/332/IPC, 27 Arms Act and
3/181 M.V. Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Convicted.
FIR no.122/10
PS Prasad Nagar
State Vs. Mukesh @ Aman
2
(h) Date of Institution 14.01.2011
(i) Date when judgment 15.10.2019
was reserved
(j) Date of judgment 13.12.2019
JUDGMENT
Facts:
1. The present chargesheet has been filed against the accused persons namely (I) Mukesh @ Aman & (II) Mukesh @ Matka for the offence U/s 186/353/332/34 IPC , 27/54/59 Arms Act & 3/181 & 5/180 M.V Act.
2. It is the allegations against the accused persons that on 24.08.2010 at about 3:30 pm at Guru Ravi Das Marg, Shamshan Ghat, Delhi within the jurisdiction of PS Prasad Nagar, Delhi, on the eve of Raksha Bandhan , HC Manoj Kumar, Ct. Lokender Kumar and Ct. Karan Singh were performing duty at the anti snatching picket Barricade and were checking the vehicles coming and going from there. The accused persons namely Mukesh @ Matka and Mukesh @ Aman were coming on a motorcycle bearing no. DL6S AC 3102 , make Pulsar, Black color from the wrong side of the road. Accused Mukesh @ Matka was riding the said motorcycle and accused Mukesh @ Aman was sitting as a pillion rider. When they were signaled to stop by HC Manoj Kumar, the rider of the motor cycle (Mukesh @ Matka ) increased the speed of the vehicle and tried to ran over the said motorcycle at the person of HC Manoj Kumar, who saved himself and Ct. Lokender and Ct. Karan Singh who were present at the spot managed to stop the vehicle with great difficulty. On this the rider of the motorcycle Mukesh @ Matka took out a dagger from his FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 3 right dub and threatened Ct. Lokender by saying "Uska picha karne walo ka anjam accha nahi hoga" and the other accused Mukesh @ Aman threw stones at Ct. Karan Singh, however both the Ct. Lokender and Ct. Karan Singh saved themselves from any injury. Both the accused persons started quarrelling with the said police officials and accused Mukesh @ Aman caught hold the collar of the uniform of HC Manoj Kumar and told "tumhare jaise police walo se mai roz nipatta hun" and the said accused persons were apprehended after great efforts and a dagger was recovered from the possession of accused Mukesh @ Matka. In the meanwhile IO SI Puran Chand reached the spot and the present FIR was lodged against the accused persons for the aforesaid acts. It is also alleged that accused Mukesh @ Matka was also riding the motorcycle mentioned above at that time without any valid licence and hence in this manner both the accused persons in furtherance of their common intention committed the offence U/s 186/34, 353/34, 332/34, Section 27 Arms Act and section 3/181 M.V Act for obstructing public servants namely HC Manoj Kumar, Ct. Lokender and Ct. Karan Singh in discharge of their public functions and duties as public servants, for assaulting and using criminal force against said public servants in execution of their duties as public servants in order to prevent or deter them from discharging their duties as public servants, for causing simple hurt to the said public servants while they were performing their duties as public servants, by using a dagger while extending threat to Ct. Lokender and for driving the motorcycle bearing regn. DL6S AC3102 without valid driving licence.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 4
3. Cognizance of the offence was taken on 14.01.2011. Accused persons were summoned and after supply of copy of charge sheet and compliance of the provisions of section 207 Cr.P.C , charge U/s 186/34, 353/34, 332/34, Section 27 Arms Act and section 3/181 M.V Act was framed against both the accused persons on 20.02.2013 to which they pleaded not guilty and claimed trial.
Prosecution Evidence:-
4. To prove the case against the accused persons, the prosecution relied upon the following documents:-
(i) Statement recorded by IO of PW-1 as Ex.PW-1/A, Site Plan Ex.PW-
1/B, Sketch of the dagger Ex.PW-1/C, Seizure memo of dagger Ex.PW- 1/D, Seizure memo of stone Ex.PW-1/E, Seizure memo of motorcycle as Ex.PW-1/F, Arrest memo of accused persons as Ex.PW-1/G and Ex.PW- 1/H , Search memos of accused persons as Ex.PW-1/I and Ex.PW-1/J, case property stone as Ex.P-1, Dagger as Ex.P-2and motorcycle bearing no DL6S AC 3102 as Ex.P-3.
(ii)Superdarinama of motorcycle in question as Ex.PW-2/A.
(iii) MLC of HC Manoj Kumar and Ct. Lokender as Ex.PW-3/A and Ex.PW- 3/B.
(iv) FIR no 122/2010 U/s 186/353/332/34 IPC and 27/54/59 Arms Act as Ex.PW-5/A. FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 5
(v) Rukka prepared by IO as Ex.PW-6/A, Kalandra U/s 3/181 and 5/181 as Ex.PW-6/B , DD no. 31 B dated 24.08.2010 as Ex.PW-6/L and notification regarding illegal arms as Mark X.
(vi) Complaint U/s 195 Cr.P.C as Ex.PW-7/A.
5. To prove the guilt of the accused persons , the prosecution got examined 7 witnesses.
6. PW-1 is HC Manoj Kumar, who deposed that on 24.08.2010, he was posted at PS Prasad Nagar as a HC. On the day of incident, due to Raksha Bandhan festival, he was on duty alongwith Ct. Lokender and Ct. Karan Singh at Ravidas Marg. They had put barricading's at Ravi Das Marg near Shamshan Ghat for anti snatching picket and they were checking the vehicles which were passing from the said road. At about 3:30 pm, they saw one motorcycle bearing no. DL 6S AC 3102 make pulsar black color coming from the wrong side and same was driven by person namely Mukesh @ Matka and one pillion rider was also sitting on the said motorcycle whose name was disclosed as Mukesh @ Aman. Both the accused persons were correctly identified by the witness. PW-1 stated that the name of both the accused was later on revealed during investigation. He tried to stop the said motorcycle but the driver of the motorcycle raised the speed of the motorcycle. He came in front of the speedy motorcycle and finally saved him from the impact of the motorcycle. Ct. Karan Singh and Lokender stopped the motorcycle. Accused Mukesh @ Matka who was driving the said motorcycle took the dagger from his right side dub which was hidden by him under his clothes. Accused Mukesh @ Matka took out dagger from its cover FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 6 and waiving it in the air and said that they should not chase him and should not try to apprehend him. Ct. Karan Singh tried to apprehend accused Mukesh @ Aman and he pelted a stone towards Ct. Karan Singh but he escaped from the injury. PW-1 apprehended accused Mukesh @ Aman after great effort as he resisted his apprehension very badly. Ct. Karan and Lokender had apprehended Mukesh @ Matka after a great effort as he resisted his apprehension very badly. Ct. Karan Singh had took the dagger from the hand of accused Mukesh @ Matka. Accused Aman had caught hold of collar of PW-1 of police uniform and told him that he had dealt several police officials daily. In the meantime, ASI Puran Chand came at the spot while patrolling. Both the accused persons were apprehended after stiff resistance. IO recorded his statement which is Ex.PW-1/A bearing his signatures at point A. IO prepared the rukka and handed over to Ct. Lokender for registration of the FIR from PS. Accordingly, Ct. Lokender got the FIR registered and returned back to the spot alongwith the FIR and original rukka and same was handed over to the IO. IO prepared the site plan at his instance which is Ex.PW-1/B. IO prepared the sketch of the dagger which is Ex.PW-1/C. IO seized the dagger vide seizure memo Ex.PW-1/D. IO seized the piece of the stone vide seizure memo Ex.PW-1/E. IO seized the motorcycle vide seizure memo Ex.PW-1/F. IO arrested both the accused persons vide memos Ex.PW-1/G and Ex.PW-1/H. Both the accused persons were personally searched vide memos Ex.PW-1/I and Ex.PW-1/J. Both the accused persons were medically examined. Case property deposited in malkhana. PW-1 correctly identified the case property i.e. one stone ,one dagger and motorcycle bearing no. DL 6S AC 3102 as Ex.P-1 and Ex.P-2 and Ex.P-3.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 7 In his cross examination by Ld. Counsel for the accused persons , PW-1 stated that on the day of incident he was on picket duty from 12 noon to 08:00 pm. His departure entry had been made but he did not remember the DD number. He denied the suggestion that he was not present at the spot. They did not maintain any record regarding checking of vehicle on picket. He had observed the offending vehicle coming from wrong side and he had given a signal to stop. The said motorcycle was coming from the opposite side of traffic which was one way. Probably accused was wearing jeans pant on the date of incident. The length of dagger was 30 cm, its width was 4 cm. The accused Mukesh @ Aman had pelted a stone towards Ct. Karan Singh from the distance of 4-5 steps. When accused Mukesh tried to run over the said speedy motorcycle, he saved himself by moving back side. He did not remember the exact distance from the picket where accused persons were apprehended with motorcycle. He denied the suggestion that accused persons had been lifted from their house. PW-1 stated that SI Puran Chand reached at the spot about 3:45 pm. He stated that it is correct that people were going and coming by vehicle on the spot. Neither he nor other member of the police party had asked the public to join the investigation on the spot. He did not go anywhere to leave the spot and he remained there from 12 noon to 08:00 pm. Ct. Lokender had taken rukka at 05:30 pm to the police station. After 10-15 min, he returned from PS after registration of the case. All the writing work was done on the spot in standing condition. Only site plan was prepared at the spot which is Ex.PW-1/B. He denied the suggestion that motorcycle was not apprehended/seized at the spot. He stated that it is correct that there was no specific identification mark on the rock Ex.P-1. He denied the suggestion that no stone was thrown and no stone and dagger recovered from the spot. He stated that after sealing of the stone and FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 8 dagger, the seal after use was given to Ct. Karan Singh. It is correct that seal after use was given to Ct. Karan Singh at the spot but he did not know when the seal was returned by Ct. Karan Singh. He denied the suggestion that no such incident had taken place. No other fact was deposed to by PW-1.
PW-2 is Superdar Mukesh Kumar, who deposed that in the year 2010 he was running a shop of garment at Mata Rameshwari, Nehru Nagar in the house of Md. Shammi. There was also a shop of accused Mukesh @ Aman in the neighbouring house. He did not remember the date, however, his motorcycle was taken by police official to the PS Prasad Nagar and he had handed over them the key of his motorcycle. After one and a half - two hours, he went to the PS and he was told that his motorcycle will be released by court. He did not remember the name of the police official. After 3-4 days, he got released his motorcycle from the court vide superdarinama Ex.PW2/A. He is the registered owner of vehicle bearing registration no.DL- 6S-AC-3102.
7. During the examination, Ld. APP For the State cross examined PW-2 wherein he denied that on 24.08.2010 his motorcycle was taken by accused Mukesh @ Aman and on that day, he had committed incident in question. It is correct that he did not made any call at 100 number or any written complaint to the police or to any authority regarding taking away of his motorcycle by the official. PW1 stated that it is also correct that when he visited the PS he did not meet the concerned SHO for purpose of making a complaint. It is also correct that he was making the aforesaid statement for the first time in the court today and not when his vehicle was released or in FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 9 his application of superdarinama. He denied that he is deposing falsely at the instance of accused as he was his neighbour or had been won over by the accused persons.
8. Despite opportunity given, PW2 was not cross examined on behalf of the accused persons and no other fact was deposed to by PW2.
9. PW3 is Naveen Chandra Joshi, Medical Record Technician, LHMC, who deposed that he was working as a medical record Technician since 1986 in the Lady Harding Medical College. Dr. Shashank Aggarwal prepared the MLC of HC Manoj and Ct. Lokender which are Ex.PW3/A and Ex.PW3/B. He identified the signatures and handwriting of Dr. Shahank Aggarwal on both the MLC as he had worked with him in the course of his duty.
Despite opportunity given, PW3 was not cross examined on behalf of accused persons and no other fact was deposed to by PW3.
10 PW4 is HC Lokender Kumar, who deposed that on 24.08.2010 he was posted as Ct. at PS Prasad Nagar. On the day of incident, he alongwith HC Manoj Kumar and Ct. Karan Singh were checking the vehicles in front of the gate of Cremation Ground at Ravi Dass Marg. At about 03:30pm, two persons came on a motorcycle bearing no. DL-6SA-C-3102 make pulsar Black Colour from the wrong side. HC Manoj Kumar tried to stop them but the driver of the motorcycle increased the speed of the motorcycle. When HC Manoj Kumar again tried to stop them the driver of the motorcycle tried to hit him.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 10 He alongwith Ct. Karan Singh ran towards the said two persons and stopped the motorcycle. Accused Mukesh @ Matka was driving the motorcycle and accused Mukesh @ Aman was sitting on the rear seat. In the meantime, accused Mukesh @ Matka took out a dagger/big knife and started threatening him by showing the said knife. He also said "humko pakadne ka anjam thik nhi hoga". Accused Mukesh @ Aman picked up a stone and throw it towards Ct Karan singh and Ct. Karan Singh saved himself. When they tried to apprehend the accused persons they started quarreling with them. They apprehended the accused persons. In the meantime, IO/SI Puran Chand came at the spot and they handed over the accused persons to him. Thereafter, IO put the said dagger/big knife on a white paper and prepared the rough sketch which is already Ex.PW1/C. Thereafter, IO put the said dagger alongwith cover in a pullanda and sealed it with the seal of PC and seized it vide seizure memo already Ex.PW1/D. IO also seized the stone by putting it in a pullanda and sealed it with the seal of PC vide seizure memo already Ex.PW1/E. IO also seized the motorcycle vide seizure memo already Ex.PW1/F. He also took the rukka to PS and got registered the FIR and came back at the spot and handed over the original rukka and copy of FIR to the IO. IO also arrested the accused persons and conducted their personal searches vide memos already Ex.PW1/G to Ex.PW1/J. Case property is already Ex.P1, P2 and P3. Both accused were correctly identified by PW4 in the court.
11. In his cross examination, PW4 stated that they reached at the spot at about 12:10pm on foot. The distance between the PS and the spot was about 100 m. He did not remember how many vehicles were checked by FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 11 them before apprehending the accused persons. It was a special checking drive due to the festival of Raksha Bandhan. They had put barricades at the spot. He denied that construction was going on the road. The road was in a good condition at that time. When Manoj Kumar signaled towards the accused persons, he was standing at some distance from Manoj Kumar. The accused were apprehended near the barricades when they were checking the vehicles. When Manoj Kumar signaled towards the accused persons to stop he was standing at a distance at about 10-15 paces from the motorcycle. The motorcycle could not hit Manoj Kumar as he saved himself. PW4 was standing at a distance of 4-5 paces behind Manoj Kumar. The barricades were placed in a zigzag manner. He cannot tell the speed of motorcycle when accused tried to hit Manoj Kumar. It was day time but traffic was normal on the road. Vehicle passed through the spot when they were conducting the proceedings. IO did not ask any public person to join the investigation and no written notice was served upon any public person. When accused persons tried to hit Manoj Kumar, he was standing behind Manoj Kumar. Ct.Karan Singh was standing by the side of Manoj Kumar. ASI Puran Chand reached at the spot on his own foot. They did not issue any challan to anyone at the time of checking on that day. No residential area was situated near the spot. Residential house were situated at a distance of 100m from the spot. No public person was called from such houses to join the investigation. When accused Mukesh tried to throw a stone on Karan Singh he was standing in front of the motorcycle. He was standing at a distance of about 4-5 paces from Karan Singh. He took the rukka at about 05:30pm and came back at a spot at about 06:15pm. PW4 stated that they did not sustain injuries. Accused also did not sustain injuries. When they tried to apprehend the accused persons, accused started pushing them but FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 12 they did not sustain injuries. Puran Chand reached at the spot at about 03:40pm. They remained at the spot till 06:45-07:00pm. They went to the PS on foot. IO took the motorcycle of accused person to PS. He did not remember exactly what was recovered from the possession of accused person during their personal searches. IO prepared rough sketch of knife, seized the knife/dagger before he handed over the rukka to him. He denied that all the writing work was done while sitting at the PS or nothing was recovered from the possession of accused or that accused persons did not visit the spot at any point of time or accused were lifted from the house and falsely implicated in the present case. He denied that the motorcycle in question was lifted from the shop of one Mr. Mukesh and was planted upon the accused persons. No other material fact was deposed to by PW4.
12. PW5 is HC Ajay Kumar, Legal Cell, DCP office Central who deposed that on 24.08.2010 he was posted as a Ct/operator at PS Prasad Nagar. On that day, HC/DO Sadhu Ram handed over him the tehrir for typing the FIR. Thereafter he typed the FIR at the instance of HC Sadhu Ram which is Ex.PW5/A bearing the signatures at point A.
13. In his cross examination, PW5 stated that he took 15 min in typing the FIR Ex.PW5/A. DO called him in the room and handed over the tehrir to him at about 05:40pm. No other fact was deposed to by PW5.
14. PW6 is Puran Chand, Retd. SI who deposed that on 24.08.2010 he was posted as ASI at PS Prasad Nagar. On that day, he was on patrolling duty near cremation ground, Ravi Dass marg. At about 03:45pm, HC Manoj, Ct.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 13 Lokender and Ct. Karan Singh met him there and they produced two boys Mukesh @ Matka and Mukesh @ Aman and further they also produced a motorcycle make Pulsar in Black Colour and one dagger/big knife in a cover and stone. Thereafter, he recorded the statement of HC Manoj which is already Ex.PW1/A. Thereafter, he put the recovered dagger/big knife on a piece of paper and prepared a rough sketch which is already Ex.PW1/C. PW-6 also specified length of dagger and width total length of dagger was 30 cm, of blade 22 cm, of handle 8 cm and width of the blade was 4 cm. Thereafter he seized the motorcycle make pulsar vide seizure memo already Ex.PW1/F, dagger/knife vide seizure memo already Ex.PW1/D and stone vide seizure memo already Ex.PW1/E. Thereafter he prepared the rukka/tehrir Ex.PW6/A and sent Ct. Lokender for registration of case. Thereafter, he prepared the site plan at the instance of HC Manoj Kumar which is already Ex.PW1/B. After registration of case, Ct Lokender came back at the spot and handed over him the original rukka and copy of FIR. Thereafter, he arrested both the accused and conducted their personal search vide memos already Ex.PW1/G to Ex.PW1/J. He recorded the statement of witnesses. They came back at the PS and case property was deposited in Malkhana. He also got conducted medical examination of both the injured i.e HC Manoj and Ct. Lokender. He also obtained the complaint u/s 195 Cr.PC from the concerned ACP. He also prepared kalandra U/s 3/181 and 5/181 which are Ex.PW6/B (colly). Motorcycle is already Ex.P-3. Dagger/big knife is already Ex.P-2 and stone is already Ex.P-1. Both the accused were correctly identified by the witness in the court. PW6 further stated that he applied for permission u/s 195 Cr.PC for making complaint before concerned ACP. He put the photocopy of the complaint u/s 195 Cr.PC on record which is Ex.PW7/A. Motorcycle was released on superdari. He recorded the statement of witnesses. He also FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 14 placed DD no.31B dt. 24.08.2010 on record which is Ex.PW6/L. He also placed on record concerned notification regarding the illegal arms which is mark X.
15. In his cross examination PW6 stated that he did not remember what was his duty hours on the date of incident. He was on patrolling duty on that day on foot. Ct. Lokender, HC Manoj and Ct. Karan were present there. He had asked many public persons to join the investigation, however, none had agreed. He had not given any notice to the public persons for not joining the investigation. All the documents were prepared by him. He reached at the spot at about 03:45pm. He did not remember the DD no. on which he left the PS. He did not remember the registration number of the motorcycle which was recovered from the accused persons. Ct. Manoj sustained injuries on his head and Ct. Lokender also sustained the injuries and collar of his uniform was torn. He did not remember the time when he arrested the accused person. No specific mark was given on the dagger before seizing the same. He did not remember whether the road was damaged or not. No identification mark was given on the stone. He sent Ct. Lokender to the PS with rukka for the registration of FIR at about 05:30pm but he did not remember when Ct. Lokender returned back at the spot alongwith original rukka and copy of FIR. He did not remember how much time was taken in the said proceedings of the case at the spot. He did not remember when he left the spot. He did not remember who had gone to the hospital for medical examination from the spot. The accused persons were wearing the helmet. He did not remember who had taken the motorcycle of the accused person to PS from the spot. He denied that he had arrested the accused persons FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 15 from the house nearby their shops. He denied that the motorcycle which was recovered from the accused persons was lifted from the shop of one person namely Mukesh Kumar. He denied that all the proceedings were conducted while sitting in PS and no dagger or stone was recovered from the possession of accused persons and the same was planted upon the accused persons. No other fact was deposed to by PW6.
16. PW7 is S. Sarevanan (Resigned as DCP), Director, Human Resources, Thrivani Earth Movers Pvt. Ltd., who deposed that on 09.11.2010 he was posted as Asst. Commissioner of Police, Sub Division, Karol Bagh. On that day, file of the present case containing relevant papers was placed before him and he perused the same. It came to his knowledge that on 24.08.2010 HC Manoj Kumar alongwith Ct. Lokender and Ct. Karan Singh were performing anti snatching picket duty at Ravi Dass Marg. At about 03:30pm a black pulsar motorcycle number DL-6S-AC-3102 came and the riders were identified as Mukesh @ Matka and Mukesh @ Aman. While the abovesaid police officials tried to stop them they did not stop the bike and tried to hit them. Thereafter abovesaid police officials managed to stop the bike and rider namely Mukesh @ Matka threatened Ct. Lokender by showing dagger in the words " uska peecha karne walo ka anjam acha nhi hoga" and another person namely Mukesh @ Aman threw stone on Ct. Karan Singh. When the abovesaid police officials tried to apprehend them, Mukesh caught hold of collar of one of the police official and started beating them by saying 'tumhare jaise police walo se roz nipatta hu". Thereafter both the accused persons were apprehended alongwith the dagger. In this regard FIR no.122/10 dt. 24.08.210 u/s 186/353/332/34 IPCwas registered at PS Prasad FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 16 Nagar. PW7 perused the record and after his satisfaction he made a complaint u/s 195 CrPC which is Ex.PW7/A bearing his signatures at point A.
17. In his cross examination, PW7 stated that when he made the aforesaid complaint Ex.PW7/A, pullanda of dagger was not placed before him. At the time of making of complaint u/s 195 CrPC he had not seen the motorcycle. He stated that before producing the file before him during the investigation he had seen the dagger and motorcycle and he had knowledge regarding the dagger and the motorcycle. He had seen the dagger/pullanda and motorcycle on the day when the accused persons were apprehended. He denied that he made the said complaint u/s 195 CrPC in a mechanical manner and accused persons were falsely implicated in the present matter. No other fact was deposed to by PW7.
Thereafter after conclusion of examination of prosecution witnesses PE was closed vide order dt. 10.07.2017 and the matter was fixed for recording of statement of accused persons u/s 313 CRPC.
Statement of Accused:
18. On 03.08.2017, statement of both the accused persons U/s 313 Cr.P.C was recorded whereby all the incriminating evidence was put to the accused persons .In their statement recorded U/s 313 Cr.P.C both the accused persons stated that the present case is a false case. They have been falsely implicated in the present case. All the prosecution witnesses have deposed FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 17 falsely against the accused persons. All the documents are manipulated in the present case. They wished to lead DE.
Defence Evidence:
19. In order to disprove the case of the prosecution , one witness DW-1 was got examined on behalf of the accused persons. DW-1 is Dori Lal Chander, who deposed that in the month of August 2010, his elder brother namely Mukesh @ Aman and his employee namely Mukesh @ Matka were sitting at his shop no. 7026, Gali no.2, Mata Rameshwari , Nehru Nagar, Tank Road, Karol Bagh, Delhi. At about 11:30-12:00 pm, 4-5 police officials of PS Prasad Nagar reached at his shop and they told that they were the police officials of PS Prasad Nagar and some inquiry had to be made from Mukesh @ Aman and Mukesh @ Matka and the said police persons took the aforesaid Aman @ Mukesh and Mukesh @ Matka with them to the PS and on his asking they told that they will release his brother and employee in the evening. When his brother and his employee were not released by the aforesaid police officials in the evening then he alongwith his mother visited the PS Prasad Nagar in the night and asked the police officials present in the PS about not releasing his abovesaid elder brother and his employee Mukesh @ Matka. The aforesaid police officials told them that they had lodged a case against them and he can get released the accused persons from Court.
20. In his cross examination DW-1 stated that his shop is in the name and style of Balaji garments. He had kept accused Mukesh @ Matka as an employee in his shop. He had not produced any document to show that FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 18 accused Mukesh @ Matka was working at his shop. Accused Mukesh @ Aman is his real brother. The distance between his shop and house is about 15-20 steps. The person who had come to his shop looking for his brother and employee were in civil dress. He had not asked the said persons for their police ID Cards. He had not asked any other people present on nearby shop and neither asked help from other public persons and neighbours when the said 4-5 people were taking away his brother. He had also not informed at his house about the said 4-5 people coming and taking away his brother and employee. On 24.08.2010 at about 03:30 pm, he was present at his shop. Distance between Guru Ravidas Marg Shamshan Ghat and his shop is about half a km. He is not confirmed about the distance. He had not made any complaint to the higher police authorities or to the court in regard to his brother's unlawful apprehension by police officials. He had not informed any relative of accused Mukesh @ Matka about him being taken away by some 4- 5 persons. He had not made any complaint in regard to accused Mukesh @ Matka and Mukesh @ Aman being falsely implicated in the present case to any higher authorities/court. Had had no knowledge in regard to any complaint that could be made in this incident as he is illiterate. He denied the suggestion that he had made a false and concocted story that his brother and employee were taken away by some persons in civil dress and falsely implicated in the present case. He denied the suggestion that on 24.08.2010 at about 03:30 pm his brother Mukesh @ Aman and Mukesh @ Matka had obstructed police officials in performing of their officials duties. He further denied the suggestion that on the said date, time and place his brother Mukesh @ Aman and his employee Mukesh @ Matka had assaulted police officials and deterred them to perform their official duties. He further denied the suggestion that his brother and employee had caused hurt to police FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 19 officials in discharge of their official duties or that they had a dagger and used the same to threaten the police official. He denied that accused Mukesh @ Matka also had one motorcycle bearing no. DL6S AC 3102 . He denied the suggestion that he did not make any complaint in regard to apprehension and registration of the case on Mukesh @ Matka and Mukesh @ Aman as he was aware that they had assaulted police officials and deterred and obstructed them from performing their official duties. No other material fact was deposed to by DW-1.
Thereafter on 22.07.2019, DE was closed on the separate statement of the accused persons.
Final Arguments:
21. Thereafter final arguments were addressed by Ld. APP for the State as well as Ld. Counsel for the accused persons. In the final arguments addressed by Ld. APP for the State, the Ld. APP for the State submitted that on the basis of oral as well as documentary evidence adduced before the court, the prosecution has been able to prove its case beyond reasonable doubt and the accused be convicted for the offence U/s 186/34, 353/34 , 332/34, U/s 27 Arms Act and 3/181 Motor Vehicles Act and for obstructing public servants in discharge of their duties as public servants, for assaulting and using criminal force to the said public servants in execution of their duties to deter them from discharging their duties as public servants, to cause simple hurt to the public servants while performing their duties as public servants, for using a dagger to extend threats to the public servants and for driving the motorcycle in question without driving licence. On the other hand Ld. Counsel for accused persons has submitted that the FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 20 prosecution has miserably failed to bring home the guilt of the accused persons. The accused persons have not committed the offence as alleged by the prosecution. The accused persons have been falsely implicated in the present case and no case is made out against the accused persons as alleged by the prosecution and hence the accused be acquitted of the offence U/s 186/34, 353/34 , 332/34, U/s 27 Arms Act and 3/181 Motor Vehicles Act.
Arguments Heard. Record Perused.
Findings:
22. In the present case the accused persons namely Mukesh @ Aman and Mukesh @ Matka have been charged for the offence U/s 186/34, 353/34 , 332/34 IPC, U/s 27 Arms Act and 3/181 Motor Vehicles Act . The said sections may be reproduced as under:-
34. Acts done by several persons in furtherance of the common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
186.- Obstructing public servant in discharge of public functions.- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both.
332. Voluntarily causing hurt to deter public servant from his duty.- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 21 , shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.
353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
Section 27 Arms Act may be reproduced as under:-
27. Punishment for using arms etc.- (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less then seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.
Section 3/181 of Motor Vehicles Act is as under:-
3. Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle, and no person shall so drive a transport vehicle [other than [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his licence specifically entitled him so to do.
181. Driving vehicles in contravention of section 3 or section
4.- Whoever drives a motor vehicle in contravention of section 3 or section 4 FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 22 shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
Section 34 IPC is intended to meet a case in which it may be difficult to distinguish between criminal act of individual members of a party , who act in furtherance of a common intention of all, or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is that the presence of an accomplice (or accomplices) gives encouragement, support , protection and confidence to a person actually engaged in the commission of an illegal act. Accordingly, every person engaged in the commission of a crime is held responsible by virtue of his or her participation in the criminal act, even if the particular act in question was not performed by the one or the other member of the group. Section 34 of IPC creates no specific offence. It only lays down a rule of evidence that if two or more persons commit a crime in furtherance of a common intention, each of them will be liable jointly on the principle of group (or joint) liability. The essence of joint liability under section 34 lies in the existence of a common intention to do a criminal act in furtherance of the common objective of all the members of the group. The word 'common intention' implies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in the execution of that plan. The acts done by each of the participants may differ and may vary in character, but they must be actuated by the same common intention. The plan to execute a crime need not be elaborate, nor is a particular interval of time required for the purpose. The scheme may be chalked out suddenly, but all the members must consent to it. In other words there must be a prior concert among the members of the group in regard to the design in question, so that each of them is aware of the act to be committed.
With regard to sections 27 Arms Act, it may be noted that the said section prohibits the use of arms or ammunition or other prescribed arms without a valid licence granted under the Arms Act or the rules made thereunder. The word "use" has been used in this section in its generic sense. "Use" means handle as instrument, exercise, put into operation, avail oneself of, cause to act or serve for a purpose etc. It does not imply or include the result that follows. The mere use of an arm or ammunition irrespective of any resultant injury etc. would constitute an offence under sub-section (1) and (2) of section 27. The section would apply only when an arm or ammunition has been used.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 23
23. As aforesaid , in the present case, it is the allegations against the accused persons that on 24.08.2010 at about 3:30 pm at Guru Ravi Das Marg, Shamshan Ghat, Delhi within the jurisdiction of PS Prasad Nagar, Delhi, on the eve of Raksha Bandhan , HC Manoj Kumar, Ct. Lokender Kumar and Ct. Karan Singh were performing duty at the anti snatching picket Barricade and were checking the vehicles coming and going from there. The accused persons namely Mukesh @ Matka and Mukesh @ Aman were coming on a motorcycle bearing no. DL6S AC 3102 , make Pulsar, Black color from the wrong side of the road. Accused Mukesh @ Matka was riding the said motorcycle and accused Mukesh @ Aman was sitting as a pillion rider. When they were signaled to stop by HC Manoj Kumar , the rider of the motor cycle (Mukesh @ Matka ) increased the speed of the vehicle and tried to ran over the said motorcycle at the person of HC Manoj Kumar, who saved himself and Ct. Lokender and Ct. Karan Singh who were present at the spot managed to stop the vehicle with great difficulty. On this the rider of the motorcycle Mukesh @ Matka took out a dagger from his right dub and threatened Ct. Lokender by saying "Uska picha karne walo ka anjam accha nahi hoga" and the other accused Mukesh @ Aman threw stones at Ct. Karan Singh, however both the Ct. Lokender and Ct. Karan Singh saved themselves from any injury. Both the accused persons started quarrelling with the said police officials and accused Aman @ Mukesh caught hold the collar of the uniform of HC Manoj Kumar and told "tumhare jaise police walo se mai roz nipatta hun"
and the said accused persons were apprehended after great efforts and a dagger was recovered from the possession of accused Mukesh @ Matka. In the meanwhile IO SI Puran Chand reached the spot and the present FIR was lodged against the accused persons for the aforesaid acts. It is also alleged FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 24 that accused Mukesh @ Matka was also riding the motorcycle mentioned above at that time without any valid licence and hence in this manner both the accused persons in furtherance of their common intention committed the offence U/s 186/34, 353/34, 332/34, Section 27 Arms Act and section 3/181 M.V Act for obstructing public servants namely HC Manoj Kumar, Ct. Lokender and Ct. Karan Singh in discharge of their public functions and duties as public servants, for assaulting and using criminal force against said public servants in execution of their duties as public servants in order to prevent or deter them from discharging their duties as public servants, for causing simple hurt to the said public servants while they were performing their duties as public servants, by using a dagger for extending threat to Ct. Lokender and for driving the motorcycle bearing regn. DL6S AC3102 without valid driving licence.
24. The prosecution in order to prove its case against the accused persons has relied upon 7 witnesses and the documents which have already been described in the preceding paragraphs. PW-1 HC Manoj Kumar stated in his examination that on 24.08.2010, on the day of incident, due to Raksha Bandhan festival, he was on duty alongwith Ct. Lokender and Ct. Karan Singh at Ravi Das Marg. They had put barricading at Ravidas Marg near Shamshan Ghar for anti snatching picket and were checking the vehicles which were passing from the said road. At about 3:30 pm, they saw one motorcycle bearing no. DL 6S AC 3102 make pulsar black color coming from the wrong side and same was driven by person namely Mukesh @ Matka and one pillion rider was also sitting on the said motorcycle whose name was disclosed as Mukesh @ Aman. Both the accused persons were correctly identified by PW-1 in the Court. PW-1 further stated that he tried to stop the said motorcycle but FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 25 the driver of the motorcycle raised the speed of the said motorcycle. He came in front of the speedy motorcycle and finally save him from the impact of the motorcycle. Ct. Karan Singh and Lokender stopped the motorcycle. Accused Mukesh @ Matka who was driving the said motorcycle took the dagger from his right side dub which was hidden by him under his clothes. Accused Mukesh @ Matka took out dagger from its cover and waived it in the air and said that they should not chase him and they should not try to apprehend him. Ct. Karan Singh tried to apprehend Mukesh@ Aman and he pelted a stone towards Ct. Karan Singh but he escaped from the injury. PW-1 apprehended accused Mukesh @ Aman after great effort as he resisted his apprehension very badly. Ct. karan and Lokender apprehended Mukesh @ Matka. Ct. Karan Singh took the dagger from the hand of accused Mukesh @ Matka. Accused Aman had caught hold of his collar of police uniform and told him that he had dealt several police officials daily. In the meantime ASI Puran Chand came at the spot while patrolling and both the accused persons were apprehended after stiff resistance. PW-1 correctly identified case property as Ex.P-1 ( One Stone) , P-2 (One dagger) and P-3 ( motorcycle bearing no. DL6S AC 3102).
25. In his cross examination PW-1 stated that he was on picket duty from 12 noon to 08:00 pm. His departure entry had been made but he did not remember the DD number. He had observed the said vehicle coming from the wrong side and he had given signal to stop. The said motorcycle was coming from the opposite side of traffic which was one way. PW-1 also described the length and width of the dagger as 30 cm long and 4 cm wide which matches with the description of the dagger as shown in Ex . PW-1/C. FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 26 PW-1 further stated in his cross examination that accused Mukesh @ Aman had pelted a stone towads Ct. Karan Singh from the distance of 4-5 steps. When accused Mukesh tried to run over the speedy vehicle , he saved himself by moving back side. He denied the suggestion that accused persons were lifted from their house. SI Puran Chand reached the spot at about 03:45 pm. He further denied the suggestion that the motorcycle in question was not apprehended/seized at the spot.
26. PW-3 has deposed regarding MLC of HC Manoj and Ct. Lokender which are Ex.PW-3/A and Ex.PW-3/B . PW-4 Ct. Lokender who was also present on the spot stated in his examination that on 24.08.2010, he alongwith HC Manoj Kumar and Ct. Karan Singh were checking the vehicles in front of the gate of cremation ground at Ravi Das Marg. At about 3:30 pm, two persons came on a motorcycle bearing no. DL 6S AC 3102 make pulsar black color from wrong side. HC Manoj Kumar tried to stop them but the driver of the motorcycle increased the speed of the motorcycle and tried to hit him. He alongwith Ct. Karan Singh ran towards the said two persons and stopped the motorcycle . Accused Mukesh @ Matka was driving the motorcycle and accused Mukesh @ Aman was sitting on the rare seat. In the meantime accused Mukesh @ Matka took out a dagger/big knife and started threatening him by showing the said knife. He also said "humko pakadne ka anzam thik nahi hoga". Accused Mukesh @ Aman picked up a stone and threw it towards Ct. Karan Singh and Ct. Karan Singh saved himself. When they tried to apprehend the accused persons, they started quarrelling with them. They apprehended the accused persons. In the meantime, IO ASI Puran Chand came at the spot and they handed over the accused persons to him. Thereafter the FIR was got registered ,investigation was conducted by FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 27 the IO , accused persons were arrested , personal search of accused persons were made and case property was seized. PW-4 also correctly identified the case property as P-1, P-2 and P-3.
27. In his cross examination PW-4 stated that when Manoj Kumar signaled towards the accused person, he was standing at some distance from Manoj Kumar. The accused were apprehended near the barricades where they were checking the vehicles. When Manj Kumar signaled towards the accused persons to stop, he was standing at a distance of about 10-15 paces from the motorcycle. The motorcycle could not hit Manoj Kumar as he saved himself. The barricades were placed in a zig zag manner. It was day time but traffic was normal on the road. Vehicles passed through the spot when they were conducting the proceedings. IO did not ask any public persons to join the investigation and no written notice was served upon any public persons. When accused persons tried to hit Manoj Kumar he was standing behind Manoj Kumar. Ct. Karan Singh was standing by the side of Manoj Kumar. ASI Pooran Chand reached the spot on his own foot. When accused Mukesh tried to throw a stone on Karan Singh , PW-4 was standing in front of the motorcycle. He was standing at a distance of about 4-5 paces from Karan Singh. PW-4 stated in his cross examination that they did not sustain injuries and accused also did not sustain injury. PW-4 stated that when they tried to apprehend the accused persons accused starting pushing them but they did not sustain injury. Puran Chand reached the spot at about 3:40 pm. IO prepared rough sketch of knife, seized the knife/dagger before he had handed over the rukka to him. He denied the suggestion that all the writing work was done while sitting at PS or nothing was recovered from the possession of accused or accused persons did not visit the spot at any point FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 28 of time or accused were lifted from the house and falsely implicated in the present case. He further denied that the motorcycle was lifted from the shop of one Mukesh and was planted on the accused persons.
28. PW-5 has stated in his examination about registration of FIR which is Ex.PW-5/A. Another important witness of prosecution PW-6 Retd. SI Pooran Chand stated in his examination that on 24.08.2010, he was posted as ASI at PS Prasad Nagar. On that day he was on patrolling duty near Cremation Ground, Ravi Das Marg. At about 03:45 pm, HC Manoj, Ct. Lokender and Ct. Karan Singh met him there and they produced two boys Mukesh @ Matka and Mukesh @ Aman and further they also produced a motorcycle make pulsar in black color and one dagger/big knife in a cover and stone. Thereafter he recorded statement of HC Manoj which is already Ex.PW-1/A. He put the recovered dagger/big knife on a piece of paper and prepared a rough sketch which is Ex.PW-1/C. Total length of dagger was 30 cm, of blade 22 cm of handle 8 cm and width of the blade was 4 cm. Thereafter he seized the motorcycle make pulsar vide seizure memo Ex.PW-1/F , dagger/knife vide seizure memo Ex.PW-1/D and stones vide seizure memo Ex.PW-1/E. He prepared the rukka/tehrir Ex.PW-6/A and sent Ct. Lokender for registration of case. Thereafter he prepared site plan at the instance of HC Manoj Kumar which is Ex.PW-1/B. After registration of case, Ct. Lokender came back at the spot and handed over him the original rukka and copy of FIR. Thereafter he arrested both the accused and conducted their personal search vide memos already Ex.PW-1/G to PW-1/J. He recorded the statement of witnesses. They came back at the PS and case property was deposited in Malkhana. He also got conducted the medical examination of the injured i.e. HC Manoj and Ct.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 29 Lokender. He also obtained the complaint U/s 195 Cr.P.C from the concerned ACP. He also prepared kalandra U/s 3/181 and 5/181 which are Ex.PW-6/B (Colly). He also placed DD no. 31B dated 24.08.2010 on record which is Ex.PW-6/L. He also placed on record the concerned notification regarding the illegal arms which is Mark "X".
29. In his cross examination PW-6 stated that he had asked many public persons to join the investigation, however none had agreed. All the documents were prepared by him. He reached at the spot at about 03:45 pm. Ct. Manoj sustained injury on his head and Ct. Lokender also sustained the injury and collar of his uniform was torn. He did not remember the time when he arrested the accused persons. No specific mark was given on the dagger before seizing the same. No identification mark was given on the stone. He stated that he had sent Ct. Lokender to PS with rukka for registration of FIR about 05:30 pm. The accused persons were wearing helmet. He denied that he had arrested the accused persons from the house nearby their shops or that the motorcycle which was recovered from the accused persons was lifted from the shop of person namely Mukesh Kumar. He denied that he had done all the proceedings while sitting in police station and no dagger or stone was recovered from the possession of accused persons and the same had been planted by him.
30. PW-7 S. Sarevanan stated in his examination that on 09.11.2010, he was posted as Asstt. Commissioner of Police Sub Division Karol Bagh. On that day, file of the present case containing papers was placed before him and he FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 30 perused the same. It came to his knowledge that on 24.08.2010 HC Manoj Kumar alongwith Ct. Lokender and Ct. Karan Singh were performing duty and at about 03:30 pm a black pulsar motorcycle no DL 6S AC 3102 came and the riders were identified as Mukesh @ Matka and Mukesh @ Aman. While the abovesaid police officials tried to stop them, they did not stop the bike and tried to hit them. Thereafter abovesaid police officials managed to stop the bike and rider namely Mukesh @ Matka threatened Ct. Lokender by showing a dagger in the words " Uska peecha karne walo ka anjam accha nahi hoga" and another person namely Mukesh @ Aman threw stones on Ct. Karan Singh. When the abovesaid police officials tried to apprehend them, Mukesh caught hold of collar of one of the police officials and started beating them by saying "tumhare jaise police walo se roj nipatta hun". Thereafter both the accused persons were apprehended alongwith dagger and FIR no. 122/10 dated 24.08.2010 under section 186/353/332/34 IPC was registered at PS Prasad Nagar. He perused all record and after his satisfaction, he made a complaint under section 195 Cr.P.C which is Ex.PW-7/A.
31. In his cross examination PW-7 stated that during the investigation he had seen the dagger and motorcycle and he had knowledge regarding the dagger and motorcycle. He had seen the dagger/pullanda and motorcycle on the day , the accused persons were apprehended. He denied that he had made the complaint under section 195 Cr.P.C in a mechanical manner and accused persons have been falsely implicated in the present matter.
FIR no.122/10PS Prasad Nagar State Vs. Mukesh @ Aman 31
32. Thus, the testimony of PW-1 HC Manoj Kumar, PW-4 HC Lokender Kumar, PW-5, HC Ajay Kumar,PW-6 Retd. SI Pooran Chand and PW-7 S. Sarevanan the then ACP and the documents 1 relied upon by the prosecution collectively suggest that on 24.08.2010 at about 03:30 pm, at Ravi Das Marg accused Mukesh @ Matka was driving the motorcycle and accused Mukesh @ Aman was sitting as a pillion rider. Both the accused were coming from a wrong side and when they were signaled to stop accused Mukesh @ Matka raised the speed of the motorcycle and tried to hit Ct. Manoj Kumar. However, HC Manoj Kumar came in front of the speedy motorcycle and saved himself from the impact of the motorcycle. Ct. Karan Singh and Lokender stopped the motorcycle. In the meanwhile accused Mukesh @ Matka who was driving the motorcycle took out the dagger , hidden in his clothes and started threatening Ct. Lokender by showing the dagger/knife and said "humko pakadne ka anjam thik nahi hoga". Ct. Karan Singh tried to apprehend accused Mukesh @ Aman and he pelted stone towards him but he escaped from the injury. Ct. Karan Singh took the dagger from the hand of 1 . Statement recorded by IO of PW-1 as Ex.PW-1/A, Site Plan Ex.PW-1/B, Sketch of the dagger Ex.PW-1/C, Seizure memo of dagger Ex.PW-1/D, Seizure memo of stone Ex.PW-1/E, Seizure memo of motorcycle as Ex.PW-1/F, Arrest memo of accused persons as Ex.PW-1/G and Ex.PW-1/H , Search memos of accused persons as Ex.PW-1/I and Ex.PW-1/J, case property stone as Ex.P-1, Dagger as Ex.P-2and motorcycle bearing no DL6S AC 3102 as Ex.P-3.
(ii)Superdarinama of motorcycle in question as Ex.PW-2/A.
(iii) MLC of HC Manoj Kumar and Ct. Lokender as Ex.PW-3/A and Ex.PW-3/B.
(iv) FIR no 122/2010 U/s 186/353/332/34 IPC and 27/54/59 Arms Act as Ex.PW-5/A.
(v) Rukka prepared by IO as Ex.PW-6/A, Kalandra U/s 3/181 and 5/181 as Ex.PW-6/B , DD no. 31 B dated 24.08.2010 as Ex.PW-6/L and notification regarding illegal arms as Mark X.
(vi) Complaint U/s 195 Cr.P.C as Ex.PW-7/A. FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 32 accused Mukesh @ Matka . Both the accused were apprehended after great resistance. Accused Aman caught hold of collar of police uniform of PW-1 HC Manoj Kumar and told him "tumhare jaise police walo se roz npatta hun". For this reason present FIR no. 122/10 PS Prasad Nagar was registered against the accused persons. The testimony of the aforesaid prosecution witnesses is clear, unequivocal, seems to be trustworthy and inspires the confidence of the Court. Further the testimony of prosecution witnesses is duly corroborated by documentary evidence (as mentioned above )produced on record. The accused persons as well as case property Ex.P-1(Stone) , Ex.P- 2 (dagger) and Ex.P-3 (motorcycle bearin no. DL6S AC 3102) has been correctly identified by prosecution witnesses during their examination and cross examination. Ex.PW-1/A is the earlier statement/complaint of PW-1 HC Manoj Kumar wherein he narrated all the facts relating to the present case clearly. The statement Ex.PW-1/A corroborates the statement of PW-1 given in the Court at the time of prosecution evidence. Ex.PW-1/C is the sketch of the dagger/knife. Mark "X" is the copy of notification prohibiting the possession and carrying of knife of specifications provided therein. The specifications of dagger in question as spelled out in Ex.PW-1/C are squarely covered in the notification . Ex. PW-1/D is the seizure memo of dagger/knife. Ex.PW-1/E is the seizure memo of stone. Ex.PW-1/F is the seizure of the motorcycle in question. Ex.PW-1/G and Ex. PW-1/H are the arrest memo of accused persons which shows arrest of the accused persons from the spot. Ex. PW-6/B is the kalandra for commission of offence U/s 3/181 by accused Mukesh @ Matka and further shows that he was driving the motorcycle in question without valid licence at the relevant time. Ex.PW-7/A is the complaint U/s 195 Cr.P.C made by concerned ACP. Ex. PW-3/A and Ex.PW-3/B are the MLC's showing injuries of HC. Manoj Kumar and Ct. Lokender being FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 33 simple in nature. However it may be noted at this stage that in his testimony PW-4 Ct. Lokender has clearly stated that they did not sustain injuries, accused also did not sustain injuries and when they tried to apprehend the accused persons accused started pushing them but they did not sustain injury. Further Ex.PW-3/A and Ex.PW-3/B i.e. MLCs of HC Manoj and Ct. Lokender do not disclose any visible injury and hence due to this fact giving the benefit of doubt to the accused persons , the offence U/s 332 IPC is not made out.
33. Even though PW-2 Superdar Mukesh Kumar has stated in his examination that his motorcycle was taken by police officials to PS Prasad Nagar and he had handed over them the keys of his motorcycle and later on he got released his motorcycle from the Court vide superdarinama Ex.PW- 2/A. However, his aforesaid statement is in contradiction to his earlier statement given U/s 161 Cr.P.C. Further in his cross examination PW-2 stated that he did not make any call at 100 number nor made any written complaint to police or any other authority regarding taking away of his motorcycle by the police officials and when he visited the PS he did not make any complaint to the SHO concerned. In his cross examination he also stated that he was making the aforesaid statement for the first time in the court and not when his vehicle was released or in his application in superdarinama and for this reason his testimony does not seem to be reliable and trustworthy. Further the testimony of DW-1 to the effect that the accused persons were picked up by the police officials of PS Prasad Nagar who were in civil dress , from his shop on the ground of making some inquiry and later on were taken to PS and falsely implicated in the present case cannot be trusted in view of the documentary evidence placed on record by the prosecution. He had not FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 34 informed the said facts at his house. Further no complaint was made by DW- 1 regarding alleged conduct of the police officials and the said fact was not even informed by DW-1 to any relative of accused Mukesh @ Matka as stated in his cross examination.
34. In the case of "Baldev Singh & Others vs State Of H.P "on 29 April, 2017 2, the Honb'le Himachal Pradesh High Court pleased to observe that:-
It is settled law that evidence of official witnesses is not to be disbelieved or discarded merely for reason that they are official witnesses. Presumption is that every witness is impartial and independent unless proved contrary. There is no presumption for doubting credibility of official witnesses in principle. Statements of official witnesses can be basis for conviction of accused. However, before basing conviction on evidence of official witnesses, strict scrutiny with care and caution is required particularly when independent witnesses have turned hostile.
35. In case evidence of official witnesses is found cogent, reliable and credible, conviction can be based on evidence of official witnesses only.
In Yakub Abdul Razak Memon Vs. State of Maharashtra 2013 (13) SCC 1, reiterating the principle laid down in judgment reported in (1995) 4 SCC 255, the Apex Court has held as under:-
"360. In Pradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra this court upheld that:-2
Criminal Revision No. : 190 of 2008 , Date of decision : 29.04.2017.FIR no.122/10
PS Prasad Nagar State Vs. Mukesh @ Aman 35 "11...........the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony". .
10. Hon'ble Supreme Court, in Kulwinder Singh and another Vs. State of Punjab, (2015) 6 SCC 674 has held as under:-
"23. ...........When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence".
36. It is quality of evidence not quantity which matters for proving a case. Each and every witness is not necessary to be examined. Therefore, non- examination of a single person will not have adverse effect of prosecution case unless statements of witnesses examined are not found cogent and reliable or prejudice caused to accused for non-examination of the said witness is established and also accused is found incapable to examine that witness in defence for reasons beyond his control.
37. Hence, if the present case is seen the light of the observation made by the Hon'ble High Court, this Court is of the view that the prosecution in the present case has been able to prove its case against the accused persons beyond reasonable doubt so far as offence U/s 186/34, 353/34 IPC (against both accused persons) , Section 27 Arms Act and section 3/181 (qua accused FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman 36 Mukesh @ Matka only ) is concerned. As aforesaid in his testimony PW-4 Ct. Lokender has clearly stated that they did not sustain injuries, accused also did not sustain injuries and when they tried to apprehend the accused persons accused started pushing them but they did not sustain injury. Further Ex.PW-3/A AND Ex.PW-3/B i.e. MLCs of HC Manoj and Ct. Lokender do not disclose any visible injury and hence due to this fact the offence U/s 332 IPC is not made out. Consequently the accused Mukesh @ Matka and Mukesh @ Aman are acquitted for the offence U/s 332/34 IPC giving them a benefit doubt.
38. Hence, after the aforesaid discussion both accused persons namely Mukesh @ Matka and Mukesh @ Aman are convicted for the offence U/s 186/34 IPC and 353/34 IPC, while accused Mukesh @ Matka also stand convicted for the offence U/s 27 Arms Act and 3/181 Motor vehicles Act.
Judgment pronounced in open Court.
Necessary BB in terms of Section 437A CrPC furnished on behalf of both the accused persons and accepted.
Put up for order on sentence on 13.12.2019 at 02:00pm.
Digitally signed FAHAD by FAHAD UDDIN UDDIN Date: 2019.12.13 16:40:33 +0530 Announced in the open court (FAHAD UDDIN) today itself Metropolitan Magistrate-01 (Central), Tis Hazari Courts, Delhi/07.12.2019 FIR no.122/10 PS Prasad Nagar State Vs. Mukesh @ Aman