Delhi District Court
State vs : 1- Anil Kumar @ Lakki, on 29 August, 2007
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IN THE COURT OF SH. BHARAT PARASHAR, ASJ:FTC:ROHINI:DELHI
SC NO.: 254/06
STATE VERSUS : 1- ANIL KUMAR @ LAKKI,
S/O SH. MOHAN SINGH,
R/O D-137, PEERA GARHI,
RELIEF CAMP,
PASCHIM VIHAR,
DELHI.
2- APPU BALI,
S/O SH. VIJAY BALI,
R/O H.NO.AD-5
RELIEF CAMP,
PASCHIM VIHAR,
DELHI.
3- PARDEEP @ SONU,
S/O SH. SATPAL,
R/O D-84,
RELIEF CAMP,
PASCHIM VIHAR,
DELHI.
FIR NO.: 874/04
PS : PASCHIM VIHAR
U/S : 186/353/307/34 IPC
JUDGMENT
On 23-10-2004 at about 8.30pm two constables of PS Paschim Vihar, namely, Ct. Anil Kumar and Ct. Rakesh Kumar went to District Park, Road no.30, Paschim Vihar during the course of their patrolling duty. After entering inside the park while Ct. Anil started patrolling from the left side of the park and the other constable Rakesh started patrolling from the 2 right side of the park. However, constable Rakesh saw three boys sitting in the park and as soon as he started questioning them the said three boys started grappling with him and one of them, namely, accused Pardeep @ Puchi @ Sonu took out a sharp edged weapon and gave a blow on the chest of constable Rakesh. Constable Rakesh immediately raised hue and cry and upon hearing which constable Anil rushed over to there. The said three boys however upon seeing another police official approaching over there ran away from the park. As constable Rakesh was profusely bleeding so Ct. Anil Kumar conveyed the information about the incident to the police station and finally constable Rakesh was first removed to Global Hospital, Paschim Vihar and from thereto Maharaja Aggarsen Hospital, Punjabi Bagh. The torn uniform of constable Rakesh along with his undershirt (banyan) were taken into possession by the doctors and constable Rakesh was admitted in ICU over there. On the statement of constable Anil, a case for the offence U/S 186/353/307/34 IPC was registered at PS Paschim Vihar and investigation in the matter was taken up by SI DP Kajala. Constable Rakesh had however identified one of the said three boys to be accused Pardeep, who was a known bad character of the area.
Thereafter, on 23-10-04 itself said accused Pardeep was apprehended by Ct. Saroj Kumar and Ct. Kartar Singh from Shani Baazar near District Park after he robbed one other person also of his valuables. 3 Accused Pardeep Kumar allegedly made a disclosure statement admitting his involvement in the present incident. From his possession, a surgical blade was also recovered. He was accordingly arrested in this case and the surgical blade which he claimed to have used in assaulting constable Rakesh Kumar was also taken into possession. Thereafter, police custody remand of accused Pardeep Kumar was obtained and he then led the police party to Piragarhi Relief Camp and got arrested two of his other accomplices in the present incident, namely, Anil Kumar @ Lakki and Appu Bali from in the said relief camp. They both also allegedly made disclosure statements admitting their involvement in the present case and were accordingly arrested in this case. Both of them were produced in muffled face before the court and sent to judicial custody and where they were arrayed for TIP. During the course of TIP as was held on 16-11-04 both the accused persons, namely, Anil Kumar @ Lakki and Appu Bali were identified by constable Rakesh Kumar and constable Anil Kumar as being among the said three boys. Thus, upon completion of necessary further investigation challan was prepared and was filed in the court for trial.
Upon committal of the case to the court of sessions, charge for the offence U/S 186/353/307/34 IPC was framed against all the three accused persons by the then ld. Predecessor of this court. However, all the three accused persons pleaded not guilty to the charge and claimed 4 trial.
Prosecution thereafter in order to prove its case examined twelve witnesses.
PW1 constable Anil Kumar was the complainant and allegedly an eye witness of the incident. In his deposition, he proved the complaint Ex.PW1/A lodged by him with the police and also reiterated the averments made therein besides identifying the three accused persons being the assailants of constable Rakesh Kumar.
PW4 Ct. Rakesh Kumar was the injured himself. He too reiterated the prosecution story in his deposition besides stating that all the three accused persons had assaulted him in the district park on the impugned date of incident.
PW3 Ct. Saroj Kumar had apprehended accused Pardeep soon after the alleged incident when he further robbed one Ram Naresh in the Shani Baazar near District Park. After apprehending accused Pardeep he was handed over to ASI Pritam Raj.
PW2 ASI Pritam Raj had arrested accused Pardeep in the said other case of robbery registered at PS Paschim Vihar vide FIR No.875/04. Later on, he handed over the custody of accused Pardeep along with surgical blade recovered from his possession and a copy of the disclosure statement which accused Pardeep allegedly made stating about his involvement in the present incident, to SI-DP Kajala, the IO of the present 5 case.
PW5 Ct. Vasudev had gone to the Disctric Park along with SI DP Kajala upon receipt of information about the incident on the night of 23-10-2004. They had thereafter removed Ct. Rakesh initially to Global Hospital and thereafter to Maharaja Aggarsain Hospital.
PW7 Ram Naresh was the person, who was robbed by accused Pardeep in the Shani Baazar and soon thereafter when accused Pardeep was arrested by Ct. Saroj and Ct. Kartar Singh.
PW8 Dr. Bhupender Aggarwal had medically examined injured Ct. Rakesh at Maharaja Aggarsain Hospital vide his MLC Ex.PW8/A and he further opined the nature of injuries on his person to be dangerous in nature.
PW9 HC Vijender Singh was the duty officer, PS Paschim Vihar, who had recorded the FIR Ex.PW9/A in the present case.
PW10 HC Krishan Pal was also the duty constable at PS Paschim Vihar on 23-10-04, who had recorded the departure entry of Ct. Anil Kumar and Ct. Rakesh Kumar for their patrolling duty in their beat vide DD No.44B Ex.PW10/A. PW11 Jagjit Singh was the then ACP, Punjabi Bagh, who had filed a complaint U/S 195 Cr.PC before the court Ex.PW11/A pertaining to the present incident.
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PW12 SI DP Kajala was the IO of the case. In his deposition, he reiterated the investigation as carried out by him besides proving the various documents/memos prepared by him during the course of investigation.
PW6 Ct. Kartar Singh had accompanied IO/SI DP Kajala in the investigation of the present case. He corroborated his testimony in material particulars.
All the three accused persons in their statements U/S 313 Cr.PC however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. They however refused to lead any evidence in their defence.
I have heard ld. APP and ld. Counsel Sh. AS Baath for all the three accused persons.
It was submitted by learned defence counsel that the prosecution has miserably failed to prove guilt of the accused persons beyond shadows of all reasonable doubts. It was submitted that the MLC of Ct. Rakesh Kumar which was initially prepared at Global Hospital has not been either placed or proved on record by the prosecution. It was also stated that even no doctor from the Global Hospital was examined. The medical record qua the injury of Ct. Rakesh was thus stated to have been not properly proved. It was further stated that the accused persons were already well known to the police officials and thus the process of 7 carrying out their TIP was a complete farce. It was further submitted that admittedly the belt of injured Ct. Rakesh Kumar was not seized and this fact goes to show that he was not on duty at the relevant time. It was also stated that the opinion qua the surgical blade recovered from the possession of accused Pardeep viz a viz the injuries sustained by Ct. Rakesh Kumar was not obtained by the IO and this fact thus clearly gives a fatal blow to the case of the prosecution. It was further stated that PW2 ASI Pritam Raj and PW3 Ct. Saroj Kumar have contradicted each other qua the arrest of accused Pardeep. It was further stated that the very recovery of surgical blade from the possession of accused Pardeep has also not been proved by the prosecution as even PW7 Ram Naresh has not supported the case of the prosecution in this regard. It was also stated that the injuries which were sustained by Ct. Pardeep on his body were not found to be co-relating with the cut on his uniform. The prosecution was thus stated to have miserably failed in proving its case against all the three accused persons. All the accused persons were thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that the testimony of Ct. Anil and Ct. Rakesh clearly proves the case of the prosecution beyond shadows of all reasonable doubts. It was also submitted that as accused Pardeep was already known to the prosecution witnesses so there was no necessity of 8 identifying him again and as regards the other two accused persons it was stated that they were clearly identified by both the witnesses during the course of their TIP. The prosecution was thus stated to have been successful in proving its case against all the three accused persons. They were thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that not only I find the testimony of the prosecution witnesses examined to be cogent, convincing and reliable but I have been also unable to find any circumstance in their cross examination which may favour the accused persons or may lead me to disbelieve their testimonies. PW4 Ct. Rakesh specifically stated that accused Pardeep along with his two other accomplices had assaulted him with some sharp edged weapon. He also claimed to have identified one of them as accused Pardeep being already known to him as he was a bad character of the area. This fact of identifying accused Pardeep was disclosed to Ct. Anil Kumar by Ct. Rakesh Kumar at the spot itself even before he was removed to the hospital. Accordingly, Ct. Anil Kumar in his complaint Ex.PW1/A itself disclosed about the name of accused Pardeep as being involved in the present incident. The veracity of this statement of Ct. Anil Kumar has not been disputed by any of the three accused persons in his cross examination. No such question or suggestion to the contrary was put either to PW1 constable Anil Kumar or to PW4 Ct. 9 Rakesh Kumar and especially to PW9 HC Vijender Singh, the duty officer. Even PW12-IO/SI DP Kajala was also not cross examined on this aspect of the matter. At this stage, it will be also worthwhile to mention that the plea of defence which has been taken in the cross examination of the various prosecution witnesses by learned defence counsel has also been changing with every prosecution witness examined. While to Ct. Anil Kumar, it was suggested by learned defence counsel that the accused persons have been falsely implicated in this case at the instance of SI Balwan Singh. However, no such question or suggestion was at all put to PW4 Ct. Rakesh, the injured and he was merely suggested that he has wrongly identified the accused persons or that the accused persons were not his assailants. Thereafter to PW9 HC Vijender Singh, the duty officer, it was suggested that the FIR has been written at the dictation of PW12- IO/SI DP Kajala. However, thereafter in the cross examination of PW12- IO/SI DP Kajala it was merely suggested to him that the accused persons have been falsely implicated in this case as they could not pay him the money.
Besides the aforesaid wavering nature of plea of defence taken in the cross examination of the prosecution witnesses it will be also worthwhile to mention that nothing was suggested to any of the police officials as to on what account they will like to falsely implicate the present three accused persons in the offence in question. This fact all the 10 more gets reinforced when it stands clearly proved on record that Ct. Rakesh Kumar indeed sustained the said injury on the said day. Thus, there is no reason as to why Ct. Rakesh Kumar will like to falsely implicate the present three accused persons while allowing the actual assailants to escape away.
Coming to the various contentions raised by learned defence counsel, I may state that though some medical treatment record of Global Hospital ought to have been placed by the IO along with the charge sheet but his mere failure to do so cannot result in a conclusion whereby to even throw overboard the medical record prepared by Maharaja Aggarsain Hospital also. In fact, the MLC Ex.PW8/A prepared at Maharaja Aggarsain Hospital clearly mentioned that patient has already received some treatment at Global Hospital. It was nowhere suggested to PW8 Dr. Bhupender Aggarwal, who had medically examined injured Ct. Rakesh at Maharaja Aggarsain Hospital that the MLC prepared by him was a false or fabricated document. Thus, from the testimony of PW1 Ct. Anil Kumar, PW4 Ct. Rakesh and PW8 Dr. Bhupender Aggarwal, the injuries sustained by Ct. Rakesh Kumar in the present incident stands amply proved on record. Moreover, from the mere fact that the official belt of Ct. Rakesh was not taken into possession by the IO, it cannot be concluded that he was not on duty at the relevant time. Moreover, PW10 HC Krishan Pal, who entered the witness box to prove the departure entry 11 of Ct. Anil Kumar and Ct. Rakesh Kumar from the police station on 23-10- 04 for their patrolling duty was not put any question or suggestion to dispute the veracity of the said DD entry. Thus, his testimony clearly proves that both Ct. Anil Kumar and Ct. Rakesh Kumar were on official duty and were undertaking patrolling in the said district park area which incidentally fell in their beat area.
As regards the recovery of impugned surgical blade from the possession of accused Pardeep though the same has been stated to by PW2 ASI Pritam Raj and PW3 Ct. Saroj Kumar but on account of failure on the part of IO to obtain any opinion qua it from the doctor viz-a-viz the injuries sustained by constable Rakesh, the prosecution has certainly failed to prove that the said surgical blade was the weapon of offence used in the present case. However, this failure on the part of the IO in even not sending the said surgical blade to FSL for obtaining any opinion qua any blood stains if found to be existing on it or viz a viz the injuries sustained by Ct. Rakesh Kumar or the cut on his clothes cannot itself lead to a conclusion whereby to throw the entire prosecution case overboard.
It is well settled that owing to carelessness or negligence of an Investigating Officer, the prosecution case cannot be made to suffer if the overall facts & circumstances of the present case speaks otherwise about its truthfulness and veracity. It was observed in the case DHANRAJ SINGH @ SHERA & ORS. VS. STATE OF PUNJAB AIR 2004 SC 1920 that if the 12 carelessness or negligence of an investigating officer in investigating a case is relied upon so as to throw overboard, the entire prosecution case then it will amount to playing into the hands of such an investigating officer.
In the case RAM BALI VS. STATE OF UP AIR 2004 SC 2329 also it was observed by the Hon'ble SC that mere failure or omission or negligence on the part of IO cannot affect credibility of prosecution version.
In the case ZAHIRA HABIBULLA H. SHEIKH AND ANOTHER VS. STATE OF GUJARAT AND OTHERS , AIR 2004 SC 3114 , it was observed that it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective and the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty".
In the present case accused Pardeep was already known to both Ct. Anil and Ct. Rakesh Kumar and was thus rightly identified by them during the course of their deposition in the court. The two other co- accused persons, namely, Anil Kumar and Appu Bali were not only identified by both the constables during the course of their judicial TIP during the course of investigation but they also identified them at the time 13 of their deposition in the court. The identity of the three accused persons thus being the assailants of Ct. Rakesh stands well proved by the prosecution beyond shadows of all reasonable doubts. The contention of learned defence counsel that for one single blow the three accused persons cannot be held responsible is also without force. The facts & circumstances of the present case clearly suggest that all the three accused persons, who were sitting in the park probably with some bad intention which is evident from the fact that upon being questioned by a police official they immediately tried to confront him and thereafter ran away from there, had formed a common intention at the spur of the moment to resist any attempt by Ct. Rakesh Kumar to either question them or to apprehend them. Certainly to make inquiries from suspected persons found in the area during the course of their patrolling duty was a part of duty of Ct. Rakesh Kumar. The three accused persons thus obstructed Ct. Rakesh Kumar, a public servant in the discharge of his such public functions. Thereafter, in furtherance of their common intention they also assaulted Ct. Rakesh Kumar by means of a sharp edged weapon causing danger injuries on his person of such a nature that had Ct. Rakesh died in pursuant to the said injuries then they all three would have been liable for his murder.
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I accordingly hereby hold accused Anil Kumar @ Lakki, Appu Bali and Pardeep guilty of the offence under Section 186/353/307/34 IPC and convict them thereunder. Announced in open court today i.e. on 29-8-07. (BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI COURTS:DELHI 15 FIR NO.: 874/04 PS : PASCHIM VIHAR U/S : 186/353/307/34 IPC 29-8-07 Pr. Addl. PP for the State.
All accused are present in JC along with ld. Counsel Sh. AS Baath.
Vide my separate detailed judgment dated 29-8-07 accused persons, namely, Anil Kumar @ Lakki, Appu Bali and Pardeep @ Sonu have been convicted of the offence under Section 186/353/307/34 IPC.
Arguments on Sentence have been heard today at the request of learned counsel.
Vide my separate detailed order, order on sentence has been announced.
File be consigned to record room.
Announced in the open court on 29-8-07.
(BHARAT PARASHAR) ASJ:FTC:ROHINI:DELHI 16 IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI SC NO.: 254/06 STATE VERSUS :ANIL KUMAR @ LAKKI ETC.
FIR NO.: 874/04 PS : PASCHIM VIHAR U/S : 186/353/307/34 IPC ORDER ON SENTENCE Vide my separate detailed judgment dated 29-8-07 accused Anil Kumar @ Lakki, Appu Bali and Pardeep @ Sonu have been convicted for the offence U/S 186/353/307/34 IPC .
I have heard ld. APP for the State and learned defence counsel Sh. AS Baath for all the convict persons on the point of sentence.
It has been submitted that all the three convict persons are of young age i.e. Convict Pardeep is aged about 24 years, convict Anil Kumar is aged about 23 years and convict Appu Bali is aged about 19 years. It was further submitted that they have been facing trial since 2004. It was also stated that while convict Pardeep and Anil have almost remained in jail for about three years, the other convict Appu Bali has also remained in jail for a considerable period of time during the course of trial. It was also submitted that all the convict persons have not been convicted in any other case till date. A lenient view was thus prayed for.
On the other hand, ld. APP strongly prayed for imposition of a 17 severe sentence of imprisonment keeping in view the nature of allegations against them and especially the fact that a police official was attacked by the present convict persons. The convict persons were thus prayed to be sentenced to a severe punishment.
I have carefully perused the record.
Keeping in view the overall facts & circumstances of the present case, coupled with the submissions made besides the young age of the three convict persons, I am of the considered opinion that the interest of justice will be suitably met if the three convict persons, namely, Anil Kumar @ Lakki, Appu Bali and Pardeep @ Sonu are sentenced to rigorous imprisonment for a period of three months for the offence U/S 186/34 IPC. It is ordered accordingly.
As regards the offence U/S 353/34 IPC, they are sentenced to rigorous imprisonment for a period of two years and to pay a fine of Rs.3,000/- each. In default of payment of fine, the convict persons shall further undergo simple imprisonment for a period of three months each.
As regards the offence U/S 307/34 IPC, I sentence all the three convict persons to rigorous imprisonment for a period of three years each and to pay a fine of Rs.3,000/- each. In default of payment of fine, the convict persons shall further undergo simple imprisonment for a period of three months each.
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Benefit of Section 428 Cr.PC shall be given to all the three convict persons.
It is further directed that all the substantiative period of sentences of imprisonment shall run concurrently.
A copy of the Judgment as well as that of Order on Sentence be given free of costs to all the convict persons and another copy be attached with their jail warrants.
File be consigned to Record.
Announced in the open court on 29-8-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI 19