Delhi District Court
State vs (1) Fakru S/O Sh. Mohd. Shabbir on 1 September, 2009
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IN THE COURT OF SH. DILBAGH SINGH: ADDITIONAL SESSIONS
JUDGE 01 (E)/ KARKARDOOMA COURTS: DELHI.
Sessions Case No.23/09
Date of institution: 15.4.2009
Date on which reserve for order: 11.8.09
Date of delivery for order: 21.08.09
State v/s (1) Fakru s/o Sh. Mohd. Shabbir
R/o A253, Shastri Park near Rashidia Masjid
Delhi.
FIR NO.352/03
PS Gandhi Nagar
U/s 379/411/186/333/353/34 IPC
JUDGMENT:
1. Case of the prosecution as disclosed from report under Section 173 Cr.P.C is to the effect that on 6.12.2003, H.C. Deewan Singh was returning to P.S. after making enquiries concerning DD No.26A and when he reached near Dharampura, Gandhi Nagar, Const. Ajit Singh met him and produced two persons namely Naeem and Ashraf alongwith stolen articles which were taken into possession. Const. Ajit made a statement before him, the crux of which is being given infra.
2. Const. Ajit stated that on 6.12.2003, he was posted at P.S. Gandhi Nagar and on that day he was on patrolling duty alongwith Const. Mahesh; that at about 2 a.m. in the night, while patrolling, when they 2 reached near Geeta Gali, Dharampura, they saw that three boys were standing near a maruti car bearing registration No.DL7C8240; that on seeing them, they tried to escape; that on suspicion, he and Const. Mahesh chased them and apprehended them at Gali No.5, Dharam Pura; that Const. Mahesh apprehended accused Naeem alongwith car steerio make Philips and he apprehended accused Ashraf alongwith distributor of maruti car; that on apprehension, all the three persons started doing 'HATHAPAI" with them; that the third person gave a blow to him with some iron like object due to which he sustained injuries on his head; that third boy whose name was disclosed by his associates as Fakru managed to escape from the spot. That in the meantime, HC Deewan Singh reached at the spot and he produced two accused persons before him alongwith stolen articles. That on interrogation, accused persons disclosed that they had committed theft of the stolen articles from maruti car bearing NO.DL738240. That he was sent to SDN Hospital for his medical examination.
3. The aforesaid statement of Const. Ajit was endorsed vide Ex.PW4/A and case was got registered through Const. Bhagirath. Further investigation of this case was assigned to SI Badruddin Khan, who collected copy of FIR and rukka and reached at the spot. SI Badruddin 3 prepared the site plan of the spot at the instance of Const. Mahesh, recorded the statements of the witnesses u/s 161 Cr.P.C., arrested accused Naeem & Ashraf, recorded their disclosure statements, collected the MLC of Const. Ajit from SDN Hospital, deposited the case property in malkhana. At the instance of accused Naeem and Ashraf, he arrested accused Fakru. After conclusion of the investigation, report under Section 173 Cr.P.C. was filed.
4. Ld.M.M. after compliance of requirements of Section 207 Cr.P.C. committed the case to the Ld. Sessions Judge and it was ultimately allocated to my Ld. Predecessor.
5. My Ld. Predecessor on 01.6.2004, framed charges against the accused persons u/s 186/353/333/34 IPC, to which accused persons pleaded not guilty and claimed trial.
6. To substantiate the charge, prosecution has examined PW1 Const. Ajit Singh, PW2 Const. Mahesh, PW3 Const. Bhagirath, PW4 H.C. Deewan, PW5 Smt. Savita Jain, PW6 ASI Shugan Lal, PW7 Const. Mohod. Kaushar, PW8 ASI Yogender Singh, PW9 Dr. A.K.Kulshreshtha, PW10 Inspector Surender Singh and PW11 SI Badruddin Khan.
7. PW1 Const. Ajit Singh, PW2 Const. Mahesh, PW3 Const. 4
Bhagirath and PW4 HC Deewan have testified about the manner in which incidental & post incidental events took place.
8. PW5 Smt.Savita Jain has testified that she was the owner of maruti car bearing NO.DL7CB8240. She further testified that she did not remember the exact date, but about two years ago, she came to know that sterio of her vehicle had been stolen when the police came to her house. That she alongwith her husband went to PS and identified the sterio of her vehicle.
9. PW6 ASI Shugan Lal has testified that on 6.12.203, he recorded the FIR of this case on receipt of ruqqa around 3 a.m., sent by H.C. Deewan and brought by Const. Bhagirath. He proved copy of the FIR Ex.PW6/A.
10. PW7 Const. Mohd. Kaushar has testified that on 8.12.2003, he joined the investigation of this case with ASI Badruddin and in his presence accused Ashraf and Fakru were interrogated and their disclosure statements Ex.PW7/A and Ex.PW7/B were recorded.
11. PW8 ASI Yogender Singh has testified that on 4.2.2004, he obtained opinion of the doctor as to nature of injuries sustained by Const. Ajit Singh. He further testified that Inspector Surender Singh, SHO PS Gandhi Nagar, gave a complaint under Section 195 Cr.P.C. to 5 him. That he concluded the investigation and challaned the accused persons.
12. PW9 Dr. A.K. Kulshreshtha has proved the MLC of injured Const. Ajeet as Ex.PW9/A which was prepared by Dr. Richa Singhal.
13. PW10 Inspector Surender Singh has testified that on 6.12.2003, he was posted as SHO at PS Gandhi Nagar and on that day, Const. Mahesh and Const. Ajeet were on night patrolling duty. That he filed a complaint u/s 195 Cr.P.C. on receipt of the information through Const. Mahesh and Const. Ajit to the effect they were assaulted by one Fakru and his associates. He proved the said complaint as Ex.PW10/A.
14. PW11 SI Badruddin Khan, part IO of the case has testified about the manner in which the investigation was conducted by him. That he collected the FIR Ex.PW6/A and rukka Ex.PW4/B from duty officer and proceeded for the spot alongwith Const. Bhagirath, where H.C. Deewan Chand, Const. Mahesh and accused persons namely Naeem and Ashraf were found present. That HC Dewan Chand produced before him stereo and a car distributor which he seized vide memos Ex.PW1/A and Ex.PW1/B, prepared the site plan Ex.PW11/A, interrogated the accused persons, recorded their disclosure statements, arrested accused Ashraf 6 and Naeem vide arrest memos Ex.PW2/F and Ex.PW2/E respectively, conducted their personal searches vide memos Ex.PW2/G and Ex.PW2/H, recorded the statements of witnesses Sunita Jain, Const. Mahesh, H.C. Deewan Chand and Const. Bhagirath. He further testified that he got both the accused persons medically examined, deposited the case property in the malkhana. He further testified that at the instance of accused persons, he arrested accused Fakru vide arrest memo Ex.PW2/G, conducted his personal search vide memo Ex.PW2/D, concluded the investigation and got the accused persons challaned.
15. Statement of the accused was recorded under Section 313 Cr.P.C. in order to give an opportunity to the accused to explain the circumstances appearing in evidence against him. Accused denied the case of the prosecution in its entirety and submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he was lifted from his house by the police officials and falsely implicated in this case.
16. Arguments were heard at the bar. Ld. Defence counsel Sh. Dasa Ram, amicus curiae has argued that prosecution has failed to establish its case against the accused. He has argued that non recovery of weapon of offence is fatal for the case of the prosecution. 7
That acquittal of the accused Ashraf and Naeem entitles present accused the benefit of doubt. That when the story of the prosecution with respect to coaccused has not been believed, then the natural consequence which follows is that this accused cannot be convicted. That no public witness was joined in the investigation of the case and this goes against the case of the prosecution. That non supporting of the case by Smt. Sunita Jain strikes at the root of the case of the prosecution.
17. Ld PP on the other hand has argued that prosecution has established its case u/s 186/353/333 IPC against accused Fakru. He has argued that coaccused were acquitted in view of the fact that PW2 Ct. Mahesh had not attributed any role in his examination in chief on 05.03.05, to accused Ashraf and Naeem, whereas against this accused, PW2 has attributed a positive role. He has refuted all the arguments advanced by Sh. Dasa Ram advocate.
18. I have carefully perused the records of the case and considered the submissions. Let a discussion about the ingredients of the offence u/s 186/353/333 IPC be made first. Section 186 IPC provides the ingredients and the punishment with respect to obstructing of a public servant in discharge of public functions. It requires voluntarily 8 obstruction of any public servant in discharge of his public functions. It prescribes punishment upto three months and fine of Rs.500/.
19. Section 353 IPC is an aggravated form of section 186 IPC. It requires use of criminal force or assaulting to deter public servant from discharge of his duty. Punishment prescribed is two years and fine.
20. Sec 333 IPC is the more serious offence in this category and prescribes punishment upto 10 years and fine. It requires voluntarily causing of griveous hurt to a public servant in the discharge of his duty as a public servant or with intent to prevent the public servant from discharging of his duties as a public servant.
21. In the present case there is no dispute that PW 1 Ct. Ajeet Singh and PW 2 Ct. Mahesh were public servants and were discharging their lawful public functions. There is no dispute that Section 195 Cr.P.C. stands complied with. PW 9 Insp. Surender kumar has proved his complaint EX PW9/A and PW 10/A and in view of testimony of PW 9 dated 10.07.2009. Ld. defence counsel Sh. Dasa Ram had to concede that requirement of section 195 was complied with and ingredients of section 186/353/333 IPC stood brought on record with the rider that the same were not brought against accused Fakru. Accordingly the case of the prosecution has to be examined only from the angle that whether infliction of injuries was done by accused Fakru or not. I am 9 examining the case from this angle .
22. PW 1 Ct. Ajeet Singh who is the most material witness has testified that on the intervening night of 6th and 7th of December 2003, he was on patrolling and when he reached near Geeta Gali Dharampura, he saw that three boys were standing near the gali 'That on seeing him, they started running. That they were suspected and were chased. That they were apprehended after the chase and their names came to be disclosed as Fakru, Asraf and Naeem. This witness stated that on their apprehension they started doing hathapai with him. That accused Fakru present in court hit on frontal side of forehead (the word 'hit' has been left to be typed in 13th line from top to bottom at first page of examination of chief of this witness dated 26.10.2004). Rest of the testification concerns other accused and does not require advertence except the one sentence which I quote "all the three accused are present today in the court to whom the witness has correctly identified".
23. During crossexamination by Sh. S.S.Chaudhary PW1 has testified that he does not know as to whether it was an iron rod or not with which accused Fakru gave blow but has testified that it was an iron object. This version is in complete consonance with the version of this witness in the statement Ex.PW4/A and instead helping the defence, helps the case of prosecution. This witness testified that he was not 10 aware as to whether the iron object with which he was hit was recovered or not. This witness denied the suggestion that accused Fakru had not given him any iron article blow on his forehead. This denial makes the case of accused Fakru distinguishable from accused Naeem and Ashraf (since acquitted).
24. The above mentioned discussion about the evidence concerning accused Fakru leaves no manner of doubt that accused Fakru was involved in the commission of the offence. It was not suggested to PW1 that he was having any ill will towards accused Fakru and therefore, there were no reasons with PW1 to testify falsely against accused Fakru. The answer to question no. 26 in the statement of accused dated 11.7.09 is an afterthought as it was not put to PW1 that accused Fakru was falsely implicated by lifting him from his house and an adverse inference can be drawn against accused for giving an afterthought reply.
25. So from the testimony of PW 1 alone, it can be said that prosecution has established on record the ingredients of section 186 353 / 333 IPC. The reason as to why I have observed that ingredients of section 333 have also been brought on record is the MLC of Ct. Ajeet having been proved as Ex.PW8/A. In the alleged history it 11 stands mentioned that Ct. Ajeet was assaulted by thieves. Nature of injury has been opined to be grievous by Dr. A.K. Kulshreshta vide his endorsement dated 04.2.04. Nature of weapon used has been opined as blunt. In MLC particularly nature of weapon of offence, goes in consonance with the version of PW1 that he was hit by an iron like object. The following injuries have been opined: (1) CLW about 5 cm in length present over medial and middle third of left eye brow upto bony deep.
(2) swelling present over left upper eye lid (3) abrasion present over bridge of nose and medial angle of eye C.T Scan findings show that (t) window shows depressed fracture of left frontal bone encroaching left frontal sinus with over hanging soft tissue swelling. It also showed collection in sinus on decanted with injury area of an elevation in left orbit anterially.
26. The above mentioned injuries are corroborative of the version of PW1 and take care of the arguments of Ld. Defence Counsel to the contrary. It is well settled that when the testimony of an injured is supported by medical evidence then it has to be believed.
27. Not only this PW2 Ct. Mahesh has corroborated fully PW1. He in his testimony dated 05.3.05 has testified that accused along with 12 Naeem and Ashraf was apprehended. In the last lines of his examination in chief he has testified that Fakru caused injury on the person of Ct. Ajeet who was with him. This makes the case of accused distinguishable qua this accused visavis Naeem and Ashraf for the reason that this PW had not assigned any role to accused Ashraf and Naeem and only for this reason they were awarded benefit of doubt. During cross examination this witness testified that accused Fakru gave some hard weapon blow on the person of Ct. Ajeet. That it was made of iron. So testimony of this witness also corroborates the version of PW1 and there is no hitch in giving a finding that prosecution has established the fact that accused Fakru had given an iron object blow on the person of PW1 and had caused grievous injury to him. This constrains me to give an observation that prosecution has established its case u/s 186/353/333 IPC against accused Fakru.
28. Version of PW1 and PW2 finds support from the testimony of PW3 Ct Bhagirath as well. This witness has testified about the post events of the incident. This witness has testified that Ct. Ajeet and Mahesh had met them at Dharampura along with accused Naeem and Ashraf. During cross examination this witness has supported the 13 version of PW1 and 2 to the effect that Ct. Ajeet had sustained injuries on his head and had met them in the night around 2.00 am. He has also supported the version of PW1 and PW2 concerning sending of Ct. Ajeet to hospital in a three wheeler scooter. So from the testimony of PW3, case of the prosecution gets more strengthened.
29. PW4 HC Diwan has also supported the version of PW1. He has also testified about receiving of injury by Ct. Ajeet. He has also testified about apprehension of accused Naeem and Ashraf. He has testified that on inquiry accused Naeem and Ashraf had disclosed the name of present accused as Fakru. This version is very relevant as it was a discovery of fact coming within the ambit of section 27 of Indian Evidence Act. This witness has testified about arrest of accused Fakru on 10.12.03. During cross examination no suggestion was given to this witness that on making inquiry from Naeem and Ashraf they had not disclosed the name of third accused as Fakru. This testimony of this witness again strengthens the case of prosecution.
30. PW11 SI Badruddin has testified that accused Naeem and Ashraf were produced before him who were interrogated. He also 14 testified that they made disclosure statement. The most relevant portion of the testimony of this witness is being reproduced : 'I obtained two days PC remand of both the accused persons. At the instance of accused persons I arrested accused Fakru vide arrest memo ex.PW2/G and conducted his personal search vide memo Ex.PW2/D." This version of PW11 dated 03.4.08 is reiterated by him on 10.7.09 when he testified that accused Fakru was arrested at the instance of accused Ashraf and Naeem. During cross examination this witness testified that name of Fakru was found mentioned in the FIR of this case itself. The above going discussion of testimony of PW11 also thus brings on record the involvement of the accused in commission of offence. Testimony of PW 11 dated 10.7.09 takes care of the argument advanced by Sh. Dasa Ram that accused Fakru was not involved in the commission of offence. Merely because recovery has not taken place in pursuance to the disclosure statement of an iron object, is not a ground to discard the discovery of the fact that accused Fakru was arrested in pursuance to the disclosure statement of accused Ashraf and Naeem and at their instance. At this juncture I deem it expedient to mention that statement of Ct. Ajeet Singh has been proved as Ex.PW4/A and PW4 15 was not suggested that statement was not correctly recorded. Since the statement stands exhibited it can be read as a whole. Thus from the statement it has been brought on record that accused Fakru had been successful in escaping from the spot after their apprehension. So the argument is rejected.
31. Arguments advanced by Sh. Dasa Ram are not tenable in view of aforesaid discussion. Argument that recovery of iron rod has not been effected is not tenable as recovery of iron rod is not a sine qua non for establishment of an offence u/s 186/333/353 IPC. If the argument of Sh. Dasa Ram is upheld then many offenders will manage that recovery is not effected and will avoid punishment. It was this reason that recovery of articles was not made a sine qua non in many of the offences under IPC. So the argument is rejected.
32. The argument that two other accused have been acquitted is not tenable as I have already discussed that they were awarded benefit of doubt on the ground that PW2 had not testified about 'hathapai' in his examination in chief on the lines of PW1. Their case was also distinguishable on the ground that witness Sunita Jain had not supported the case of prosecution concerning theft of car stereo. It is 16 well settled that testimony of witness in India can be partly true and partly false. Maxim falsusin uno falsus in omnimus is not applicable in India and it is well settled that the portion of a testimony which is reliable can be made the basis of conviction. Reliance in this regard is placed on Dalleik Singh Vs State of Haryana 2008 Cr.L.J 3061 in which previous judgements of Hon'ble Supreme Court concerning identification, appreciation of evidence etc were discussed and the duty of the court to separate the grain from the dust was reiterated. I have no hesitation in placing on record that from the version of PW1 categorical role to accused Fakru stands attributed. His fleeing away from the spot, succeeded by his arrest in pursuance to the address furnished by co accused confirms the conclusion that accused Fakru was involved in the commission of the offence. No other argument was advanced.
33. Before parting with the judgment I deem it expedient to observe that accused was declared as PO on 10.08.07. Now by virtue of amendments in IPC ( section 174 A), and the first schedule of Cr PC, accused is required to be tried for commission of an offence of being declared a proclaimed offender by a Magistrate of the first class (Code of Criminal Procedure (Amendment) Act, 2005, S.42 ( c) (w.e.f 23.6.06). In these 17 circumstances, in fact SHO should have filed a separate challan against the accused for commission of offence soon after his apprehension before the court of a MM. If it has already been done so by the SHO then this direction may be ignored. Otherwise SHO shall register an FIR against the accused on account of he being a proclaimed offender and shall file a challan in the court of Ld MM. SHO is directed to collect the record concerning declaration of the accused as PO from this court and thereafter to file the challan. Ahlmad and Reader of this court shall cooperate with the SHO/IO of this case in this regard. A copy of the order be sent to SHO PS Gandhi Nagar for compliance.
34. In view of the aforesaid discussion, accused is convicted for offence punishable u/s 186/353/333 IPC. Let he be heard on the point of sentence.
Announced in open court (Dilbag Singh)
Dated: 21.08.09 Addl. Sessions Judge01(E):
Karkardooma Courts: Delhi.
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IN THE COURT OF SH. DILBAGH SINGH: ADDITIONAL SESSIONS JUDGE 01 (E)/ KARKARDOOMA COURTS: DELHI.
Sessions Case No.23/09
State v/s Fakru s/o Sh. Mohd. Shabbir R/o A253, Shastri Park near Rashidia Masjid Delhi.
FIR NO.352/03 PS Gandhi Nagar U/s 379/411/186/333/353/34 IPC ORDER ON THE POINT OF SENTENCE:
1. I have heard Ld. Counsel Sh. Dasa Ram and the convict on the point of sentence. Ld. PP has also been heard.
2. Ld. Counsel for the convict has stated that convict is 25 years of age; has no previous criminal record; is the only son and sole bread earner of the family. That convict is married and having his wife, two minor daughters and old mother who is 60 years old, to support. That the absence of convict during the trial in the present case was neither intentional nor deliberate, as convict was lodged in another case registered at P.S.Mathura for one year and he has been produced before this court in pursuance to the production warrants. That convict was motor mechanic and was earning Rs.100/ to Rs. 150/ per day. That convict be sentenced to for the period already undergone by him in J.C. Ld. counsel for the convict further submits that award of custodial sentence will ruin the family of the convict.
3. On the other hand, Ld. Public Prosecutor has submitted that offence committed by the convict is quite serious in nature and no leniency should be shown in the matter. He has also submitted that convict is involved in 22 cases.
4. I have carefully perused the record of the case and considered the submissions. Before adverting to sentencing aspect, I deem it expedient to advert to legal situation first.
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5. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, has provided apposite guidelines in this regard. In this judgment reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
6. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
7. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society and victim on the one hand and that of the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.
8. Convict in this case attacked a police official engaged in discharge of public functions. Convict fled away from the place of incident. Preventing a police official from discharge of public functions is a serious matter. Causing grievous hurt makes it more serious. These are aggravating circumstances. The submissions made by the convict and his counsel are the mitigating circumstances. Making a balance between the two, I deem it expedient to sentence the convict as follows.
9. Keeping in view the facts and circumstances discussed above, I deem it expedient to sentence the convict to undergo RI for a period of 3 months and a fine 20 of Rs. 500/ under section 186 IPC. In default of payment of fine, convict shall undergo RI for a period of one month.
10. Convict is further sentenced to undergo R.I. for a period of one year and a fine of Rs. 1000/ u/s 353 IPC. In default of payment of fine, convict shall undergo RI for a period of two months.
11. Convict is further sentenced to undergo R.I. for a period of 2 years and a fine of Rs.2000/ u/s 333 IPC. In default of payment of fine, convict shall undergo RI for a period of 3 months.
12. All the sentences shall run concurrently. Benefit of set off under section 428 Cr.P.C be given to the convict.
13. In view of the submission of the convict that he was in judicial custody in other case lodged at Distt. Mathura, when he was declared P.O., Reader of the court is directed to verify this fact. In case Reader is not in a position to verify this fact, then SHO shall verify this fact and will lodge the FIR against the accused only after verifying that convict was not in J.C. at the time when he was declared as proclaimed offender. A copy of this order be also sent to the S.H.O.
14. A copy of judgement and order on sentence be supplied to the convict free of cost. File be consigned to record room.
Announced in the Open Court (DILBAG SINGH) 1st day of September, 2009. Additional Sessions Judge :
Karkardooma Courts, Delhi.