Delhi District Court
Court In State vs . Saravanan & Anr. Air 2009 Sc on 30 April, 2015
FIR No.140/09 PS : Nand Nagri
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 140/09
Under Section : 147/148/149/353/332/186/307/336 IPC
Police Station : Nand Nagri
Sessions Case No : 99/14
Unique I.D. No. : 02402R0263972009
In the matter of :-
STATE
VERSUS
1. Tony @ Ram Chander
S/o. Sh. Ved Prakash
R/o. H.No. C-2/562,
Nand Nagri, Delhi.
2. Praveen
S/o. Sh. Manohar Lal
R/o. H.No. C-2/61,
Nand Nagri, Delhi.
3. Arti
W/o. Sh. Praveen
R/o. H.No. C-2/61,
Nand Nagri, Delhi.
4. Suman
W/o. Sh. Sunil
R/o. H.No. D-3/479, Nand Nagri, Delhi.
5. Raj Kumari
W/o. Toni @ Ram Chander
R/o H.No. B-6/113 & C-2/562,
Nand Nagri, Delhi.
(Pulastya Pramachala)
Page no. 1 of 32 ASJ (Shahdara)
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FIR No.140/09 PS : Nand Nagri
6. Tinku
S/o. Sh. Jagbir
R/o D-1, Block Jhuggi,
Nera Ganda Nala,
Nand Nagri, Delhi.
7. Raju @ Pahari
S/o. Sh. Ved Prakash
R/o. C-562,
Nand Nagri, Delhi.
............Accused persons
Date of Institution : 11.08.2009
Date of Committal : 22.12.2009
Date of receiving in this Court : 17.02.2014
Date of reserving judgment : 22.04.2015
Date of pronouncement : 30.04.2015
Decision : All accused persons are convicted for
offence under Section 147 and 148 IPC.
Accused Tony is convicted for offence
under Section 186, 332 and 353 IPC.
Other accused persons are acquitted for
charges under Section 186, 332 and 353
IPC.
All accused persons are acquitted of the
charges under Section 307 and 427 IPC.
JUDGMENT
CASE SET UP BY THE PROSECUTION :-
1. On 09.05.2009, at about 10:00 PM an information was recorded in PS Nand Nagri vide DD No.37-A regarding a quarrel taken place at C-2 Chowk, Nand Nagri. ASI Raj Kumar was assigned this call through telephonic message, who along with Ct. Babu Lal proceeded to the spot of quarrel. Ct. Karamveer and HC Sulekh Chand had already reached that place and they found that accused Praveen, Arti and Tinku had formed one group and accused Toni, Raj Kumari and Raju (Pulastya Pramachala) Page no. 2 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri @ Pahari had formed other group. There were three more persons and all of them were fighting with each other. Ct. Karamveer and HC Sulekh Chand tried to stop them and in that process accused Toni threatened Ct. Karamveer to leave that place and thereafter, he hit Ct. Karamveer on his head twice with a bottle of glass. Ct. Karamveer started bleeding from his head. HC Sulekh Chand came to rescue Ct. Karamveer and sent him to hospital.
2. After reaching C-2 Block Chowk, Nand Nagri, ASI Raj Kumar found that two group of persons were attacking each other with lathis, sticks, stones and bottles. He came to know that Ct. Karamveer was sent to hospital in injured condition. ASI Raj Kumar with help of his companion police officials apprehended accused Arti, Suman, Raju @ Pahari and Raj Kumari. Accused Toni and Praveen as well as their companions fled away from the spot.
3. All the accused persons had attacked upon these police officials while they were discharging their duties. These two police officials were shifted to GTB hospital. ASI Raj Kumar met Ct. Karamveer in GTB hospital and he recorded statement of Ct. Karamveer and thereafter, he came back to the spot of incident. This time he found that one motorcycle and some other articles were burnt in front of house of Toni.
He made inquiries and came to know that Praveen and his friends had set these articles on fire. Fire brigade was called at this place to control the fire. In the meantime, he also received another information that the same culprits had indulged in arson on the road in front of house no. B-6/113. Thereafter, ASI Raj Kumar reached near house no.B-6/113 and found certain house hold articles as well as one Santro car in (Pulastya Pramachala) Page no. 3 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri burning condition. Once again with aid of fire brigade, fire was controlled. ASI Raj Kumar further came to know that Ct. Rajbir had sustained injuries in this incident, who was already shifted to GTB hospital. He prepared rukka and the FIR in question was accordingly registered under Section 147/148/149/186/307/332/336/353 IPC. In the course of investigation, all accused persons except Tony were arrested. Burnt articles and other articles were seized. Finally, police prepared chargesheet against all accused persons for offences under Section 147/148/149/186/332/336/353 IPC. Insp. Satish Sharma being SHO of PS Nand Nagri filed a complaint under Section 195 Cr.P.C. in respect of offence under Section 186 IPC. Later on, after arrest of Tony, a supplementary chargesheet was filed with addition of charge under Section 307 IPC.
4. On 20.07.2010, charges were framed against all the accused persons for offences under Section 147 IPC, Section 148 IPC, Section 307 IPC, Section 186 IPC read with Section 149 IPC, Section 332 IPC read with Section 149 IPC, Section 353 IPC read with Section 149 IPC and Section 427 IPC, to which they pleaded not guilty and claimed trial. On the same day, a separate charge was also framed for offence under Section 307 IPC against accused Toni @ Ram Chander, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE :-
5. Prosecution examined 12 witnesses in support of its case and their description and role are as follows :-
(Pulastya Pramachala) Page no. 4 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri PW Name of Role of witness Proved document/ article No. witness PW-1 HC On patrolling duty Seizure memo of stones, broken pieces Sulekh on the date of of glass, glass bottles, wooden sticks Chand incident/Injured and bamboo stick i.e. Ex.PW-1/A;
seizure memo of motorcycle i.e. Ex.PW-1/B; seizure memo of car in burnt condition i.e. Ex.PW-1/C; seizure memo of one cycle, one counter and two grills i.e. Ex.PW-1/D; disclosure statement of Raj Kumari i.e. Ex.PW-1/E; disclosure statement of Raju @ Pahari i.e. Ex.PW-1/F; brick stones, broken pieces of glass bottle having label of 'Metro Desi Sharab', four bamboo dandas, two wooden sticks (collectively) Ex.PW-1/Article-1; one burnt cycle, wooden counter and two iron grills i.e. Ex.PW-1/Article-2; one burnt motorcycle Ex.PW-1/Article-3 and Santro car Ex.PW-1/ Article-4.
PW-2 Dr. Proved MLCs of MLC of Karamvir i.e. Ex.PW-2/A, MLC
Sumit Ct. Karamveer, of Ct. Rajvir Ex.PW-2/B and MLC of HC
Kumar Ct. Rajvir and HC Sulekh Chand Ex.PW-2/C.
Sulekh Chand and
identified the
handwriting and
signatures of Dr.
Satish Chandra,
Dr. Mitesh and Dr.
Amit Jain
PW-3 Ct. He along with HC Statement Ex.PW-3/A and site plan
Karamv Sulekh Chand Ex.PW- 3/DA.
eer tried to intervene
into the matter/
Injured
(Pulastya Pramachala)
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PW-4 Ct. Accompanied Arrest memo of Tinku Ex.PW-4/A;
Babu IO/ASI Raj Kumar arrest memo of Raju Ex.PW- 4/B;
Lal to the spot personal search memo of Tinku Ex.PW-
4/C; personal search memo of Raju
Ex.PW-4/D; seizure memo of stones,
bricks, broken bottle and lathis
Ex.PW-4/E; disclosure statement of Arti
Ex. PW-4/F; disclosure statement of
Suman Ex.PW-4/G; arrest memo of
Parveen Ex. PW-4/H; personal search
memo of Praveen Ex.PW-4/I;
disclosure statement of Praveen
Ex.PW-4/J and statement under section
161 Cr.P.C. Ex.PW-4/ PA.
PW-5 W/Ct. Took personal Personal search memo of Suman
Suman search of Suman, Ex.PW-5/A, personal search of Arti
Arti, and Raj Ex.PW- 5/B and personal search of Raj
Kumari Kumari Ex.PW-5/C.
PW-6 Ashok Accompanied
Kumar IO/ASI Raj Kumar
and Ct. Babu Lal
to the spot.
PW-7 HC Tilak Duty officer, who Endorsement on rukka Ex.PW-7/A and Raj registered FIR in copy of FIR Ex.PW-7/B. this case and made endorsement on the rukka PW-8 HC Tuki Joined Ram investigation with IO/ASI Raj Kumar PW-9 Ct. Joined Rajbir investigation with IO/ASI Raj Kumar/ Injured (Pulastya Pramachala) Page no. 6 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri PW-10 Dr. Opined the nature Harish of injuries on the Raheja MLC of Ct. Rajbir and Karan veer, as simple.
PW-11 ASI Raj IO of this case Tehrir Ex.PW-11/A, site plan
Kumar Ex.PW-11/B, arrest memo of Suman
Ex.PW-11/C, arrest memo of Arti
Ex.PW- 11/D, arrest memo of Raj
Kumari Ex.PW- 11/E, arrest memo of
Toni Ex.PW-11/F, personal search
memo of Toni Ex.PW-11/G,
photocopies of seizure memos
Ex.PW-11/D-1 to Ex.PW-11/D-4 and
disclosure statement of Toni
Ex.PW-11/D-5.
PW-12 Sh. Made complaint Complaint Ex.PW-12/A
Satish under Section 195
Sharma Cr.PC
PLEA OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C.
6. All accused persons were examined under Section 313 Cr.P.C. All of them denied the allegations of their involvement in a quarrel being part of two groups.
7. Accused Tony, Raj Kumari and Raju Pahari were allegedly member of one group. Accused Tony took plea that he was falsely implicated in this case. A case was lodged by him and his family members against co-accused Praveen and police was pressurizing him to settle the dispute and to withdraw that case. He declined to do so. Police came to his house on 08.05.2009 for this purpose, but he did not accept their demand. Police again came to his house on 09.05.2009 with same demand and accused Raj Kumari told police that her brother was not (Pulastya Pramachala) Page no. 7 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri present in the house and thereafter, she closed the door, though her brother Raju was present in the house. Police entered his house and broke open the door. They falsely took away his wife Raj Kumari and her brother Raju. Later on, his house was burnt by police and the group of Praveen. Same plea was taken by accused Raj Kumari as well as accused Raju in their respective statements.
8. On the other hand, accused Praveen, Suman, Tinku and Arti took plea that they were falsely implicated and the witnesses had deposed against them out of emotions and vengeance.
ARGUMENTS OF PROSECUTION.
9. Ld. Addl. PP argued that injured persons namely PW-1 H.C. Sulekh Chand and PW-3 Ct. Karamveer had duly identified all accused persons, who indulged in quarreling with each other, using weapons like lathi, bottle of glass etc. He also argued that there was no reason for these two witnesses to make false accusations against the accused persons. He further submitted that the other witnesses i.e. PW-4, PW-6, PW-7, PW-8 and PW-11 corroborated the version of PW-1, PW-3 and PW-9. Therefore, prosecution has been able to prove its case beyond any doubt.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS.
10.As it is reflected from the facts of the case, there are two rival groups of accused persons. One group consisting of accused persons namely Arti, Suman, Praveen and Tinku, were represented by common counsel i.e. Sh. R.K. Chaudhary. The other group of accused namely Tony, Raj Kumari and Raju were represented by other defence counsel namely Sh. K.K. Vaid.
(Pulastya Pramachala)
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11. Sh. R.K. Chaudhary, Advocate argued that none of the witnesses had deposed against his clients regarding any interference in public duty of the police officials. He further argued that the sole allegation is against accused Tony, who had injured PW-3 and PW-9. He also argued that both these constables had sustained simple injuries and in any case, no offence was made out against his clients as they themselves were victim.
12.On the other hand, Sh. K.K. Vaid, Advocate argued that his clients were present at their house and the other group had come to their house, in order to take revenge. For this purpose, they had attacked on his clients. He further argued that there was no pre-plan on the part of his clients and therefore, there was no occasion to be armed with any weapon. His next argument was that accused Raj Kumari was in the advance stage of pregnancy and one PW had admitted that accused Raj Kumari had pain in stomach, due to which she was admitted to hospital by the police. Therefore, there could not be any likelihood of any active role played by accused Raj Kumari in the alleged quarrel. He also pointed out to the MLC of PW-1, stating that this MLC was not proved, because PW-1 did not say anything about getting treatment from the hospital. Even otherwise, this MLC mentions the time of occurrence of incident as two hours prior to 10:45 PM. Though, as per case of prosecution, police had received information at 09:20 PM. The second call given to the police was regarding arson at the house of his clients and therefore, there was no motive established against his clients to attack the police officials. His further argument was that none of the injured officials mentioned name of assailants before treating (Pulastya Pramachala) Page no. 9 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri doctor. PWs deposed that PW-3 was taken to hospital by a public person, but MLC of PW-3 shows that he himself had gone there. Moreover, PW-3 claimed that his clothes were stained with blood, but he did not hand over his clothes to the IO. Ld. counsel also argued that the prosecution did not prove the duty roaster of PW-1, PW-3 and PW-9, in order to prove that they were on duty. He further challenged the case of prosecution, submitting that there could not be a quarrel for second time if the police officials were already attacked by the accused and he had fled away from that place. Though, PW-11/IO deposed that when he reached the spot the quarrel was still going on, but on the other hand, PW-4 gave contrary statement to the case of prosecution, admitting that quarrel had already taken place before they reached. PW-8 deposed about one Rocky, but IO did not clarify in his statement that who was this Rocky, who had injured PW-3. None of the witnesses deposed about calling a photographer on the spot. The other injured i.e. PW-9 claimed before the Court that he was hit 03-04 times, but his MLC did not show such injuries.
FINDINGS :-
13. First of all, I would refer to the charges framed against the accused persons so that the evidence may be analyzed and discussed on the parameters of law applicable to the alleged charges.
14. It was alleged against all the accused persons that on 09.05.2009 at about 09:30 PM, they all had formed unlawful assembly with common object and intention to take revenge from each other and to cause injury and damage to property of each other and in furtherance of such common object, they committed riot being equipped with deadly (Pulastya Pramachala) Page no. 10 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri weapons, thereby committing offence punishable under Section 147 and 148 IPC.
15.It was also alleged against all accused persons that in prosecution of common object, accused Tony hit on the head of Ct. Karamveer and Ct. Rajbir with empty glass bottle with intention or knowledge that if by that act, he would have caused their death, then he would have been guilty of murder and by virtue of Section 149 IPC, all accused committed offence punishable under Section 307 read with 149 IPC.
16.It was also alleged against all accused persons that in prosecution of their common object, Ct. Karamveer, Ct. Rajbir and H.C Sulekh Chand were obstructed, while they were discharging their official duties and thus, they committed offence punishable under Section 186 IPC read with 149 IPC.
17.It was also alleged against all accused persons that in prosecution of their common object, they voluntarily caused hurt with intention to prevent or deter Ct. Karamveer, Ct. Rajbir and H.C Sulekh Chand from discharging their official duties and thus, they committed offence punishable under Section 332 IPC read with Section 149 IPC.
18. It was also alleged against all accused persons that being member of unlawful assembly and in prosecution of their common object, they used criminal force against Ct. Karamveer, Ct. Rajbir and H.C Sulekh Chand with intention to prevent them in discharging their official duties and thus, they committed offence punishable under Section 353 IPC read with Section 149 IPC.
19. It was lastly alleged against all accused that being member of unlawful assembly and in prosecution of their common object, they committed (Pulastya Pramachala) Page no. 11 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri mischief by burning and damaging cycle, Santro Car bearing no. DL-3CAP-1943 and motorcycle of the value more than Rs.50/- and thus, they committed offence punishable under Section 427 IPC read with Section 149 IPC.
20.An additional charge was framed against accused Tony @ Ram Chander alleging that on same date, time and place, he hit Ct. Karamveer and Ct. Rajbir on their head with empty glass bottles with intention or knowledge and under such circumstances that if death would have ensued, then he would have been guilty of murder and thus, he committed offence punishable under Section 307 IPC.
21.PW-1/HC Sulekh Chand, PW-3/Ct. Karamveer and PW-9/Ct. Rajbir are the star witnesses of the prosecution, in the sense that they were allegedly injured in this case, while they were performing their duties as public servant. The account of facts given by these witnesses explained the culpability of accused persons for the alleged offences. The other witnesses like PW-4/Ct. Babu Lal, PW-6/Ct. Ashok Kumar, PW-8/HC Tuki Ram and PW-11/ASI Raj Kumar had reached the spot later on, after receiving information regarding the incident. PW-11 was IO of this case.
22.Therefore, I would discuss the testimony of star witnesses of the prosecution, before I proceed further to look into the testimony of other witnesses. PW-1/HC Sulekh Chand deposed that on 09.05.2009, he and PW-3/Ct. Karamveer were on patrolling duty. They were present at 100 feet road, Nand Nagri. At about 09:20 PM, they were informed by one person about a quarrel taking place at C-2, Chowk, Nand Nagri. They reached that place and found that two groups were quarreling (Pulastya Pramachala) Page no. 12 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri with each other. One group consisted of accused Ram Chander @ Tony, Raj Kumar (wife of Tony), Raju Pahari (brother-in-law of Tony) and 3-4 other persons. Other group consisted of accused Praveen, Arti (wife of Praveen), accused Suman (sister of Praveen) and another accused Tinku. Some members of Tony group were armed with 'lathis' and they were abusing other party. On the other hand, Praveen from the other party, was threatening the group of Tony that he would not leave them, because he was falsely implicated by them in a rape case. The members of Tony group attacked upon Praveen group and they started beating with 'lathi', fist, leg and punch blows as well as with empty glass bottles. PW-1 and PW-3 tried to intervene. Accused Tony hit a bottle on the head of PW-3 two-three times, stating that "Hat ja yahan se nahi to tujhe jan se maar dunga". PW-3 started bleeding from his head and he was rescued by PW-1. PW-1 sent PW-3 to the hospital through a public person. Meanwhile, police was informed and local police as well as PCR officials reached that place. PW-11/ASI Raj Kumar reached there from Police Station-Nand Nagri. They all apprehended six accused persons namely Raju Pahari, Arti, Raj Kumar, Suman, Tinku and Praveen. Accused Tony had run away from that place along with other persons involved in that quarrel. IO/PW-11 went to GTB Hospital and after sometime, he came back on the spot. He seized various articles, which were used by both groups to attack each other and which were lying on the spot. IO also seized a burnt motorcycle as well as a burnt car and some other burnt articles like one bicycle, one counter and two grills. PW-1 identified the articles, which were seized by IO, when they were produced in the Court before him.
(Pulastya Pramachala)
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Burnt Santro car was in fact taken on superdari by accused Arti.
23.During his cross-examination on behalf of accused Tony and Raj Kumari, PW-1 deposed that his patrolling duty was from 06.00 PM to 11:00 PM. He admitted that his duty roaster or departure entry was not placed in the judicial file. He further reiterated that both parties were quarreling on the chowk, outside their house. He further deposed that all accused persons were already known to him, because he was beat officer of that area and accused Raju Pahari, Praveen and Tony were registered B.C. of that area. He denied the suggestion that local police used to demand money from Tony and due to his refusal, Tony and his wife were falsely implicated, though they were not present on the spot, at the time of occurrence. He admitted the suggestion that a rape case was pending against accused Praveen, though he did not know whether sister of Tony was prosecutrix in that case. He denied the suggestion that Praveen with his companions had attacked the house of Tony and others. He further reiterated that several glass bottles were used in that quarrel by both the parties to cause injury upon each other. He denied the suggestion that Ct. Karamveer was hit by one glass bottle in this melee. He was not sure whether accused Raj Kumari was 07 months pregnant at that time, though he admitted that Raj Kumari was admitted in GTB Hospital, due to severe abdominal pain. At the same time, he denied that Raj Kumari was forcibly lifted from her house.
24.On behalf of other set of accused persons also, he was cross-
examined by a different counsel. He further deposed that he had left Police Station on 08.05.2009, at about 05.00 PM. He reiterated that (Pulastya Pramachala) Page no. 14 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri when he reached the spot, both parties were abusing and quarreling with each other. He denied the suggestion that accused Praveen, Suman and Arti were present inside their house at the time of incident or that they were not having any weapon. He deposed that he did not see, who had set Santro car and motorcycle on fire. He could not tell specifically as to which accused was having which particular weapon, but he deposed that Tony was having glass bottle in his hand and others were having dandas and glass bottles in their hands. He denied the suggestion that accused Praveen, Arti and Suman were attacked at their house by other group of Tony.
25.PW-3/Ct. Karamveer, who had accompanied PW-1 to the spot of quarrel, also deposed that on 09.05.2009, at about 09:30 PM, one person told them about quarrel taking place at C-2, Chowk, Nand Nagri. At that time, both of them i.e. PW-1 and PW-3 were present at 100 feet road on patrolling duty. At C-2 Chowk, they found two groups quarreling with each other. The description of groups was same as given by PW-1. Accused Praveen was threatening the group of Tony that he will take revenge of being falsely implicated in a rape case. Tony and his companions were armed with 'lathi' and 'danda', who attacked upon accused Praveen and his family members. Accused Praveen and his family members also started pelting stones and bottle of glass. PW-3 and PW-1 tried to intervene and they tried to apprehend Tony, on which Tony hit a bottle of glass on his head two times with intent to kill and stating that "pichhe hat jaa nahi toh tujhe jaan se maar dunga". PW-3 started bleeding from his head and PW-1 rescued him. PW-1 sent him to GTB hospital through a public person. Both parties (Pulastya Pramachala) Page no. 15 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri i.e. all accused persons had attacked upon each other having deadly weapons in their hands and they obstructed him, while he was discharging his duty. He identified all the accused persons, who were present in the Court. Tony and Arti were exempted without any dispute to their identities. He deposed that he knew all accused persons since prior to the incident, as they were residing in his beat area.
26.During his cross-examination on behalf of Tony, Raj Kumari and Raju @ Pahari, PW-3 could not find his duty roster on the judicial file and he pointed out to complaint under Section 195 Cr.P.C. made by the SHO. He denied the suggestion that he was not present at the spot. He was not having knowledge about pregnancy of Raj Kumari or about involvement of Praveen in a rape case filed by sister of Tony. He admitted the suggestion that incident had taken place at C-2 Chowk and house of Praveen as well as Tony were situated near by the said spot. He denied the suggestion that he had received injuries on his head at some different place or that he had falsely implicated Tony, because he was involved in many criminal cases. He further deposed that he did not hand over blood stained uniform to the doctor or to the IO.
27.In his cross-examination on behalf of other accused persons, he deposed that quarrel was started by Tony and accused Praveen was threatening Tony. He further deposed that Praveen and other accused persons did not obstruct him in his official duty. He further deposed that PW-1 had also sustained injuries in the quarrel, but denied the suggestion that Praveen and his companions were not having any arms at the time of incident.
(Pulastya Pramachala)
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28.On the other hand, PW-9/Ct. Rajbir deposed that on 09.05.2009, he was on patrolling duty along with Ct. Vivek in the area of B-6 Block, Nand Nagri. At about 11:40 PM, when he reached that place, he saw that accused Tony and accused Raju @ Pahari were setting on fire a Santro Car of green colour. He and Ct. Vivek tried to stop them, but accused Tony hit an empty glass bottle on his head for 3-4 times, though other staff of the police stopped the same. He started bleeding from his head and was taken to hospital by police staff. On the other hand, Tony extended threat to him that since he had obstructed him in achieving his goal, therefore, he would kill him. This witness was not cross-examined by any of the accused persons.
29.PW-4/Ct. Babu Lal, PW-6/Ct. Ashok Kumar, PW-8/HC Tuki Ram and PW-11/ASI Raj Kumar had reached the spot after PW-3 was already injured at C-2 Chowk. According to PW-4, when they reached C-2 Chowk, two groups were quarreling. They came to know that PW-3/Ct. Karamveer had sustained injuries and was already removed to GTB hospital. IO/PW-11 went to GTB hospital, after all the accused persons except accused Tony, were apprehended by the police team. IO came back after recording statement of Ct. Karamveer/PW-3. In the meantime, IO received another call regarding incident at main road, B-6/113. He along with IO went to that place, where they found that one Santro Car was burnt. According to PW-4, Ct. Rajbir/PW-9 was present in injured condition, who told IO about the persons, who had burnt the car. According to PW-4, PW-9 informed IO that Praveen along with 2-3 associate had burnt the car and ransacked the house. However, this witness was declared hostile as he had not given statement in (Pulastya Pramachala) Page no. 17 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri accordance with his previous statement. In his cross-examination by ld. Addl. PP, he denied the suggestion that PW-1 had also sustained injuries or that Ct. Rajbir/PW-9 did not meet him at B-6 as he had already gone to GTB Hospital. In his cross-examination by defence counsels, he admitted that quarrel had already taken place prior to their reaching the spot. It is worth to mention here that PW-4 had accompanied PW-11/IO since beginning.
30.PW-6 simply deposed that he was asked by PW-11/IO to accompany them to the spot i.e. C-2 Chowk. They reached there, where some persons were rioting and those persons were apprehended by them. Accused Tony had run away and they had come to know that PW-3/Ct. Karamveer was injured in that riot and was already taken to GTB Hospital. IO went to GTB Hospital and came back after some time and then he arrested all the accused persons and conducted their personal search. Thereafter, IO seized various articles from the spot.
31. PW-8 also deposed on the similar lines, stating that he also reached C-2 Chowk, where he found a quarrel taking place between two parties. He deposed that IO apprehended all accused persons namely Praveen, Raju, Tinku, Raj Kumari, Arti and Suman. He came to know that PW-3/Ct. Karamveer had received injury, which was caused by Rocky and his brother-in-law and that Ct. Karamveer was admitted in the hospital. IO went to the hospital and obtained MLC of Ct. Karamveer. Thereafter, IO arrested all the accused persons and conducted further proceedings.
32.PW-11/IO also deposed on the similar lines that when he reached C-2 Chowk along with PW-4, he saw that two rival groups were pelting (Pulastya Pramachala) Page no. 18 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri stones upon each other. Meanwhile, other police officials also reached there and with the help of those police officials, he apprehended five persons from both the groups. PW-1 met him there, who informed him that accused Praveen and accused Tony had fled away and that PW-3 was injured, who was already taken to the hospital. He left police officials at the spot and left for hospital. In the hospital, he collected MLC and recorded statement of Ct. Karamveer. Thereafter, he came back on the spot and in the meantime, he also received information about arson in front of B-6, Nand Nagri. Thereafter, he reached that place with his staff and came to know that Ct. Rajbir had sustained injuries in the incident, who was already admitted in GTB Hospital. He also came to know that accused Tony had committed arson at that place. He again went to GTB Hospital, collected MLC of Rajbir and recorded his statement. Thereafter, he asked duty officer to send lady official at C-2, Chowk. He came back to that place and by that time, Lady Ct. Suman/PW-5 had reached that place. He prepared 'tehrir' and sent for registration of FIR through PW-4. He also prepared site plan at the instance of PW-1 H.C. Sulekh Chand and thereafter, he seized various articles from the spot and arrested all accused persons. On 08.07.2009, he arrested accused Tony, when he surrendered before the Court. He also obtained complaint under Section 195 Cr.P.C. from SHO and thereafter, filed charge-sheet in this case.
33. I would deal with the first question that whether there was an unlawful assembly formed by the accused persons? An unlawful assembly is defined in Section 141 IPC and as per this provision, if there is assembly of five or more persons with a common object to commit any (Pulastya Pramachala) Page no. 19 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri mischief or criminal trespass or other offence, then such assembly is designated as unlawful assembly. The explanation to this provision further clarifies that assembly, which was not unlawful initially, may subsequently become an unlawful assembly. If I apply the requirements of aforesaid provision to the evidence of this case, then I do find that all accused persons are to be designated as member of unlawful assembly, for the reasons that they had assembled (though in two different groups) with a common object to use criminal force against each other and to cause harm to the members of rival group. The testimonies of PW-1 and PW-3 are consistent to prove that both these groups faced each other in aggressive mood. Accused Praveen was accompanied by his family members consisting of accused Arti, Suman and Tinku. On the other hand, accused Tony was leader of other group consisting of accused Raj Kumari, Raju Pahari and some more unidentified persons. While, on one hand, accused Praveen threatened the other group led by Tony to take revenge for falsely implicating him in a rape case and to teach them a lesson, the other group of Tony attacked upon Praveen and his group members being armed with 'lathi' and 'dandas'. Thereafter, both group started pelting stones and bottles of glass on the rival group members. The moment they started doing this, they committed offence of rioting as defined in Section 146 IPC and punishable under Section 147 IPC.
34. As far as reliability and credibility of prosecution evidence is concerned, I find that the testimonies of star witnesses i.e. PW-1 and PW-3 are consistent, in respect of the facts witnessed by them after their arrival at C-2 Chowk, Nand Nagri, Delhi. I do not find any motive imputed to (Pulastya Pramachala) Page no. 20 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri these witnesses during their cross-examination, to suggest any probable reason for falsely taking names of all accused persons. Most importantly, three officials i.e. PW-1, PW-3 and PW-9 had suffered injuries of different descriptions and were also medically examined in GTB Hospital. Their MLCs were proved by PW-2/Dr. Sumit. These MLCs were not challenged by any accused persons. It is true that PW-1/H.C. Sulekh Chand did not say anything about receiving injury in this incident and about his medical examination at GTB Hospital. However, his omission to depose these facts, can be attributed to the reason that his examination-in-chief was recorded in two parts. There may be a case of loosing track of the statement, so as to forget that what remained to be deposed in the statement. It was duty of the Prosecutor to check previous examination-in-chief of this witness and to put necessary questions to him, as PW-1 was not supposed to remember that to what extent, he had narrated the facts before the Court on the previous occasion. Committing error is part of human nature and omission of PW-1 to state about any injury suffered by him can be an example of such human error.
35. It is also worth to mention here that the defence has not projected any plea that MLC prepared in the name of PW-1 was a forged document. I do not have any material to suspect any foul play on the part of doctors at GTB Hospital, to prepare MLC in the name of PW-1, without PW-1 being produced before them. PW-3 did mention in his testimony that PW-1 had also sustained some injuries. It is also borne out of testimonies of PW-1 and PW-3 that PW-1 had remained at the spot, while PW-3 was sent to the hospital. The reason is apparent from the (Pulastya Pramachala) Page no. 21 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri nature of injuries mentioned in their respective MLCs i.e. Ex.PW-2/A and Ex.PW-2/C. As per MLC Ex.PW-2/A, PW-3/Ct. Karamveer had suffered two lacerated wounds over right temporal area and abrasion over his left elbow. But according to Ex.PW-2/C, PW-1/H.C. Sulekh Chand had only abrasions on his left hand. Thus, it is well apparent that PW-1 did not suffer any severe or major kind of injury, though PW-3 did receive severe injury.
36. I do not find any doubt created by defence argument that PW-3 was shown to be produced before doctor by himself, though PW-1 and PW-3 have deposed that PW-3 was sent to hospital through a public person. It is not necessary that if a public person had accompanied PW-3 to the hospital, then his name must appear in the MLC. Though, it happens that when a public person is taken to a hospital by a police official, then as per normal course of action, the name of such police official is mentioned in the MLC. It is also worth to appreciate that PW-3 had not become unconscious or had not received such kind of injury that he was not oriented. Therefore, if PW-3 himself appeared before the doctor, then no abnormality can be found with the same.
37.Similarly, the omission on the part of PW-3 to hand-over his blood stained cloths to doctor or to the IO, is not such a material lacuna, so as to wash off his injuries.
38. The defence has pleaded that no motive was attributed to accused persons to attack the police officials. I do not find any necessity of any motive being established for the alleged act of Tony. It is well evident that PW-1 and PW-3 went ahead to intervene into the quarrel between both groups, when Tony hit on the head of PW-3 with a bottle of glass.
(Pulastya Pramachala)
Page no. 22 of 32 ASJ (Shahdara)
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There was no requirement of having an extra motive, as such act happened at the spur of moment and out of loss of control over one's good sense. In fact, I do not find any motive for PW-1 and PW-3 to make false allegations against accused Tony.
39. As far as testimony of PW-4 is concerned, I do find that he was declared hostile by the prosecution on some points i.e. regarding injury to PW-1 and regarding meeting PW-9 at B-6. However, I find that such suggestion given by the Prosecutor was actually contrary to the case of prosecution and contrary to the testimony of PW-1. PW-1 has stated that after he sent PW-3 to the hospital, local police and PCR police had reached the spot. He also deposed that PW-11/IO also came to the spot. The Prosecutor probably forgot that PW-4 had accompanied the IO to the spot and therefore, the suggestion given by the prosecutor to PW-4 that PW-1 did not meet him is found to be contrary to the case of prosecution. Even IO had taken the same stand that after reaching the spot, he met PW-1, who told him that PW-3 was injured and was already taken to the hospital. It is also to be seen that IO/PW-11 further deposed that he reached B-6, Nand Nagri along with his staff. At that time, he did not disclose the name of those police staff, though later on he took name of Ct. Ashok (PW-6) and Ct. Naresh. However, PW-6 did not state about visiting B-6, Nand Nagri along with IO. Thus, there might be a situation that IO/PW11 had taken name of wrong police staff in his testimony and in these circumstances, I find that the testimony of PW-4 is consistent with the case of prosecution and is reliable.
40. In disagreement to the contentions of defence, I do not find any significance of the fact that site plan prepared at the instance of PW-1 (Pulastya Pramachala) Page no. 23 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri was not signed by PW-1. The testimony of PW-1, PW-3 and PW-4 corroborated each other to establish the fact that all accused persons had indulged into a quarrel, due to mutual rivalry. In this quarrel, they used criminal force and by using weapon like 'lathi', 'danda' and bottles of glass. They also pelted stones and bottles on each other. When PW-1 and PW-3 tried to intervene and to apprehend accused Tony, Tony hit on the head of PW-3 with bottle of glass, thereby injuring him.
41. The testimony of PW-9 was recorded in very brief manner, shorn of necessary details. However, for such situation, it is the Prosecutor, who is to be blamed, rather than a witness, because a witness does not always know that what details are to be deposed before the Court. I also smell some foul play on the part of IO/PW-11 regarding the documents prepared by him, which shall be discussed by me in the later part of the judgment.
42.From the testimony of unrebutted testimony of PW-9, it is shown that accused Tony had hit on his head at B-6 Block, Nand Nagri, when PW-9 along with other Constable tried to stop Tony and Raju Pahari from setting a Santro car on fire. I find that no one asked from this witness that when this witness was rescued by his colleagues, then why accused Tony and Raju Pahari were not apprehended by them. PW-1, PW-3, PW-4 and PW-6 had stated that accused Tony had fled away from C-2 Chowk, though accused Raju Pahari was apprehended by police officials along with other five accused at that spot. In these circumstances, the appearance of accused Raju Pahari at B-6 Block, at a later point of time along with accused Tony does not appear to be a possible situation. Hence, I am not ready to rely upon testimony of (Pulastya Pramachala) Page no. 24 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri PW-9 regarding the persons, whom he had seen setting a Santro car on fire. It is possible that this witness took name of Tony and Raju Pahari after being aware of their involvement in the incident already taken place at C-2 Chowk.
43. As pointed by ld. counsel Sh. K.K. Vaid, PW-8 had taken name of one Rocky and his brother-in-law, who were alleged to have injured PW-3. I do not find this part of statement of PW-8 to be so significant because the first hand account was given by PW-1 and PW-3. PW-8 might have heard a wrong name, because he had admittedly not witnessed the incident in question. Therefore, such discrepancy is immaterial in nature.
44. Similarly non-examination of photographer by the IO is not fatal to the case of prosecution. It simply shows the lackadaisical attitude of the IO in preparing the chargesheet. It is worth to mention here that the photographs were placed on the record, but they were not proved, because the photographer was not cited as witness. At the same time, it is relevant to record that such omission on the part of IO, does not create any doubt over the case projected by the prosecution. Hence, this omission is found to be insignificant.
45. I am in agreement with the contention of ld. defence counsel that there could not be a second quarrel at C-2 Chowk after police officials were attacked and injured, nor do I find that such is the case of the prosecution. The case of prosecution shows that PW-1 and PW-3 had reached the spot initially, who tried to intervene, but PW-3 was injured by Tony and he was sent to the hospital. The quarrel continued, rather than taking place again and when additional police staff reached there, (Pulastya Pramachala) Page no. 25 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri they apprehended all accused persons except Tony and Pramod. However, Pramod reappeared at that place and was detained. Accused Tony had in fact absconded and later on, surrendered before the Court on 08.07.2009. Therefore, there is no contradiction in the statement of PW-4, PW-6, PW-8 and PW-11 that a quarrel was going on, when they reached the spot. One different line from PW-4 cannot change the nature of his whole testimony. This was a suggestion given to him that quarrel had already taken place prior to his reaching and he admitted the same. It is not clear that what did he understand, while admitting this suggestion, because initially he himself had deposed that when he along with IO reached there, they found two groups were quarreling with each other. It may be possible that PW-4 understood this suggestion in the context of incident relating to injury sustained by PW-3.
46. During cross-examination of IO/PW-11, it was shown to the witness that on the record he had also filed photocopies of the seizure memos of case properties, which were different from the original seizure memos proved on the record. IO could not give any explanation for two sets of seizure memos prepared by him. The photocopy of seizure memos were exhibited a Ex.PW-11/D-1 to Ex.PW-11/D-4. This scenario shows that IO had prepared seizure memos at last on two occasions. One set of seizure memos were withheld, however, he could not take care while preparing photocopies of the seizure memos. He filed photocopies of the seizure memos, which were withheld by him and placed different original seizure memos on the record. In the previous part of the judgment, I have also recorded another observation regarding omission (Pulastya Pramachala) Page no. 26 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri to mention photographer as a witness in the case, while preparing the chargesheet by the IO. Such instances reflect that IO had done some short of manipulation with the documents prepared by him and despite having opportunity, he did not explain any reason or logic behind preparing two sets of seizure memos.
47.But the question is that whether such manipulation done by the IO affects the credibility of other witnesses regarding the incident of quarrel or the credibility of case of prosecution as whole? From the over all appreciation of testimony of PW-1 and PW-3, I do not have any doubt regarding the facts deposed about quarrel between two groups comprised of accused persons. It is settled law that even a part of testimony of a witness is found to be credible and reliable, the court should appreciate the same and discard the other part of testimony. The objective of the trial is to find out the truth and if truth is proved regarding substantial offences, then the irregularities committed during investigation of the case cannot come into the way, to find guilt of the accused persons. In this respect, I would refer to the observations made by Supreme Court in State of U.P. v. M.K. Anthony, AIR 1985 SC 48, wherein Supreme Court held that :-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to (Pulastya Pramachala) Page no. 27 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer."
Same observations were made by Supreme Court in State Vs. Saravanan & Anr. AIR 2009 SC 152
48. Similarly, in Deep Chand v. State of Haryana, 1996 (3) SCC 890, it was held that :-
"Discrepancies which do not go to the root of the matter and shake the absolute version of the witnesses cannot be attached any undue importance."
49. In State of U.P. v. Anil Singh, 1988 Supp SCC 686 :1989 SCC (Cri) 48 : AIR 1988 SC 1998, Supreme Court emphasized the duty of the Court to cull out the nuggets of truth from the evidence.
50.As already observed herein above, I am satisfied about the credibility (Pulastya Pramachala) Page no. 28 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri of prosecution evidence regarding the quarrel taken place among the accused persons, therefore, I do not wish to be guided by misconduct of IO. Hence, I find all accused persons to be guilty of offence of rioting punishable under Section 147 IPC.
51.The next question I shall deal with is the culpability of the accused persons for offence punishable under Section 148 IPC. As per testimony of PW-1 and PW-3, the group of Tony was equipped with lathis and dandas. When the quarrel started between these two groups, the other group also started pelting stones as well as bottles of glass. Accused Tony is shown to be using bottle of glass to injure PW-3. As per Section 148 IPC, it is not the actual consequence, which determines the culpability of the accused persons. This provision provides that if accused is armed with deadly weapon or with anything, which used as a weapon is likely to cause death, he commits offence punishable under this provision. I do not have any doubt that a lathi or a bottle of glass can be used to cause death of a person. Both these weapons are sufficient to cause death and it depends upon how these weapons are used by the offender. If these weapons are used with great force on head of a person, then they are likely to cause death. In disagreement to the contentions of defence, I do not find necessity on the part of prosecution to explain that which particular accused was carrying what particular weapon. In an incident involving quarrel between two groups, the primary focus of the police officials remain on the objective to curb the menace i.e. to control the situation rather than to minutely observe each accused. A general account of such fact given by PWs is sufficient to prove the case of prosecution. Therefore, I find (Pulastya Pramachala) Page no. 29 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri all accused persons to be guilty of offence under Section 148 IPC as well.
52.As far as charge under Section 307 IPC is concerned, I am unable to concur with the conclusions of the prosecution. To bring in the guilt of the accused persons under this charge with the help of Section 149 IPC, first of all it was necessary to satisfy the ingredients of Section 300 IPC with only exception to the final consequence. The testimonies of PW-1 and PW-3 show that accused Tony hit PW-3 with a glass of bottle on his head without any pre meditation. He did so in the passion of heat. Therefore, there cannot be a question of having intention to cause death of PW-3. Tony hit on the head of PW-3, but he did not do so with such force, which was likely to cause his death within his knowledge. The situation would have been different, if he would have overpowered PW-3 and would have continuously hit on his head several times with all force or he would have hit him with a broken glass on the vital part of his body. In that situation a knowledge could have been imputed upon him for likelihood of a death being the consequence. However, it is not so in this case. Therefore, the assumption of guilt of the accused persons for offence under Section 307 IPC cannot be raised either against Tony or against other accused persons with the help of Section 149 IPC.
53. The evidence of the case do not prove offence punishable under Section 186 IPC against all accused persons with the help of 149 IPC. PW-1 and PW-3 deposed that they were on patrolling duty and thus, they were discharging their official duty, when one member of this unlawful assembly i.e. accused Tony obstructed them in performing (Pulastya Pramachala) Page no. 30 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri their duties and caused simple hurt to PW-1 and PW-3. Section 149 IPC provides that if an offence is committed by any member of that unlawful assembly in prosecution of that common object, which the members of that assembly knew to be likely to be committed in prosecution of that object, then every person being member of that assembly becomes vicariously liable for the offence committed by such member of that assembly.
54. In the present case, when PW-1 and PW-3 had appeared and had tried to intervene and control the situation, the other members of that assembly i.e. all accused persons except accused Tony could not have been aware about the reaction of accused Tony to the intervention of PW-1 and PW-3. The accused persons had a different common object i.e. to assault member of rival group and using force against police officials was not part of their common object. Even likelihood of criminal force being used by anyone of them against a different person, than the member of rival group could not be anticipated by other accused persons. In that situation, the other accused persons cannot be vicariously held liable for the acts of accused Tony.
55.As far as act of accused Tony is concerned, I find that evidence of PW-1 and PW-3 are sufficient to show that he not only obstructed them in performing their duties, rather he went ahead to use criminal force against them and `caused simple injuries to PW-1 and PW-3.
56.Defence took plea that duty roaster of these witnesses were not proved by the prosecution. However, at the same time, I also find that defence did not suggest to these PWs that they were not on patrolling duty nor did defence sought production of their duty roaster to challenge their (Pulastya Pramachala) Page no. 31 of 32 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.140/09 PS : Nand Nagri testimony that they were on patrolling duty at the relevant time. Therefore, such objection of defence is of no avail to accused Tony.
57.Hence, I find that the charges of offence under Section 186, 332 and 353 IPC are proved against accused Tony. Therefore, only accused Tony is found guilty for these offences.
58. The accused persons are though, charged with offence under Section 427 IPC read with Section 149 IPC, however, except for PW-9, none of the PWs have deposed about the person, who actually burnt the cycle, motorcycle, Santro car or other objects. The testimony of PW-9 was not found very reliable in respect of the involvement of accused Tony and Raju Pahari, in setting Santro car on fire. In these circumstances, it is not well established that the burnt articles/vehicles were actually burnt by any member of this unlawful assembly. I do not find it appropriate to raise presumption that these articles were burnt by some member of this assembly. Therefore, for want of concrete and reliable evidence, I find that this charge is not proved beyond all reasonable doubts against the accused persons.
59. In view of my foregoing findings and observations, all accused persons are convicted for offence under Section 147 and 148 IPC. Accused Tony is convicted for offence under Section 186, 332 and 353 IPC. Other accused persons are acquitted of the charges under Section 186, 332 and 353 IPC. All accused persons are acquitted of the charges under Section 307 and 427 IPC.
Announced in the open court (PULASTYA PRAMACHALA)
today on 30.04.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 32 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 32 of 32 ASJ (Shahdara)
Karkardooma Courts / Delhi