Delhi District Court
State vs . Mohd. Khizar & Anr. on 28 January, 2012
State Vs. Mohd. Khizar & Anr.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 63/2011
State Vs. : 1. Mohd. Khizar
S/o Mohd. Asgar
R/o H.No. 2150, Kucha Dakshini
Rai, M.P. Street, Dariyaganj,
Delhi.
2. Mohd. Arish
S/o Mukhtyar Hussain
R/o H. No. 2220, Kucha
Challan, Dariyaganj, New Delhi
FIR No. 180/2006
P.S. H. N. Din
U/s 186/333/353/279/34 IPC & 3/181 MV Act.
Date of Institution : 08/12/2006
Date when arguments
were heard : 17/01/2012
Date of Judgment : 28/01/2012
SC No. 63/2011 1/36
State Vs. Mohd. Khizar & Anr.
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
Ct. Vijender Singh (PW4), a constable of Traffic Police was on duty at Tilak Marg Circle alongwith SI (then ASI) Ram Mehar (PW5) and Ct. Gambhir (PW6) from 8am on 11.03.06 at Mathura Road, Zoo red light near Sundar Nagar, New Delhi. At about 6.40pm, while aforesaid traffic police officials were on duty, a Wagon R Car No. DL3CR3390 of red colour came from side of Dr. Subhramanyam Bharti Marg in a fast speed driven by accused Mohd. Khizar having on side seat accused Mohd. Arish. Said Wagon R Car jumped the red light signal. Ct. Vijender (PW4) gave signal to said Wagon R Car to stop as the traffic on the other side had started operating. Accused Mohd. Khizar drove said car and after crossing the red light, stopped it. Ct. Vijender (PW4) coming from the front side of the said Wagon R Car moved towards the driver side of said car to check the driving license of the driver Mohd. Khizar but then accused Mohd. Khizar drove the said Wagon R Car in a SC No. 63/2011 2/36 State Vs. Mohd. Khizar & Anr.
fast speed, negligently and hit Ct. Vijender (PW4) who fell on the bonnet of the said Wagon R Car but yet accused Mohd. Khizar did not stop the said car and put it in top gear. Ct. Vijender (PW4) with great difficulty balanced himself and held the bonnet of the said car from both sides and raised noise, "bachao bachao". After moving the said Wagon R Car to 200 yards, emergency brakes were applied by accused and the vehicle was given a jerk to make Ct. Vijender (PW4) fall but yet Ct. Vijender (PW4) did not fell down from the said vehicle. Again accused Mohd. Khizar moved the car on the Mathura Road in a fast speed and when said vehicle reached opposite Sundar Nagar then accused Mohd. Arish said, " ise niche gira do" and he tried to get the hands of Ct. Vijender (PW4) removed from the both sides of the bonnet of said car and in the process by his hands was able to make Ct. Vijender (PW4) leave the right hand from the bonnet and Ct. Vijender (PW4) with the aid of his left hand was able to hang on the said vehicle. Again, the said accused took emergency brakes of vehicle, yet Ct. Vijender (PW4) did not fell down and in the meanwhile his companions came from the back by taking lift from the other vehicles and with the aid of other vehicles SC No. 63/2011 3/36 State Vs. Mohd. Khizar & Anr.
got the Wagon R Car stopped, alighted Ct. Vijender (PW4) from the bonnet with the aid of public. Accused Mohd. Khizar and Mohd. Arish with said vehicle were apprehended. SI Harbir Singh (PW13) with Ct. Vinay (PW11) reached the spot on receiving the call vide DD No. 23A. SI Harbir Singh (PW13) recorded statement Ex. PW4/A of Ct. Vijender (PW4), made endorsement Ex. PW13/A and sent Ct. Vinay (PW11) to PS for getting the FIR registered. Ct. Vinay (PW11) gave the tehrir to HC Ami Chand, Duty Officer who recorded the FIR under Section 186/333/353/279 IPC. Ct. Vijender (PW4) was sent by SI Harbir Singh to AIIMS for medical treatment before sending the tehrir and he also obtained the MLC of said constable with opinion about nature of injuries sustained as grievous. Accused were arrested. Matter was investigated.
2. On completion of investigation, charge sheet for offences under Section 186/333/353/34 IPC, 279 IPC and 3/181 M.V. Act was filed against the accused persons.
3. After completing the requirements under Section 207 SC No. 63/2011 4/36 State Vs. Mohd. Khizar & Anr.
Cr.P.C., case was committed to the court of Sessions, though apparently inadvertently charge was framed on 22/04/09, under Sections 186/333/353/34 IPC by the Ld. ACMM against accused though Section 333 IPC was exclusively triable by Court of Session. CHARGE
4. Charge for offences under Section 279 IPC; 186/34 IPC; 353/34 IPC and 333 IPC was framed against both the accused persons by my Ld. Predecessor on 18.05.10 to which they pleaded not guilty and claimed trial. Against accused Mohd Khizar, charge for offence under Section 3/181 M.V. Act, was also framed by my Ld. Predecessor on 18.05.10 to which he pleaded not guilty and claimed trial. WITNESSES:
5. To connect the accused with the offences charged, prosecution has examined in all 13 witnesses namely Dr. Tej Prakash Sinha (PW1); Dr. Alok Mittal (PW2); Dr. Avinash Kumar (PW3); Ct. Vijender Singh (PW4); SI Ram Mehar (PW5); Ct. Gambhir (PW6); HC Shoorveer (PW7); Sh. Shadi Lal (PW8); Sh. Mukhtar Hussain SC No. 63/2011 5/36 State Vs. Mohd. Khizar & Anr.
(PW9); HC Ami Chand (PW10); Ct. Vinay Kumar (PW11); Sh. D.P. Verma, the then DCP, Traffic, New Delhi (PW12) and SI Harbir Singh (PW13).
STATEMENTS OF ACCUSED:
6. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
7. Accused Mohd Khizar stated that they were standing on the Zoo red light, a little bit ahead of stop line and when they moved forward after the green light, Ct. Vijender asked them to stop the car and was trying to fine for red light jump and said constable said that challan was for Rs. 3,000/; that they guys have crossed the red light. Accused Mohd Khizar further stated that he told him that they did not jump the red light and he asked him about the challan and he said that had it been a red light jump, it should not be more than Rs. 100/; said constable said that we are not the one who SC No. 63/2011 6/36 State Vs. Mohd. Khizar & Anr.
is going to teach him about the law and then it went for the argument. Accused Mohd Khizar further stated that said constable asked him for bribe and then when they denied it, said constable asked them to step out of the car and started abusing them and they were also beaten up by said constable and then they were taken to the PS Nizamuddin. Accused Mohd Khizar further stated that Ct. Vijender never got hurt and that the car was never examined mechanically; the police officials had damaged the car and not the public and no CAT Ambulance came there.
8. Accused Arish Ahmed @ Mohd Arish stated that they were present with the red colour WagonR car and they did not jump the red light; the car was just a little bit ahead of the stop line; mechanical inspection of the car was not got done. Accused Arish Ahmed @ Mohd Arish further stated that no CAT Ambulance came at the spot.
Both accused denied to lead defence evidence.
SC No. 63/2011 7/36
ARGUMENTS
9. I have heard the arguments of Ld. Addl. PP for the State, the defence counsels, the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
10. Ld. Addl. PP argued that the testimonies of material eye witnesses namely injured Ct. Vijender Singh (PW4); SI (then ASI) Ram Mehar (PW5) and Ct. Gambhir (PW6) are consistent regarding the main purport of put forth prosecution case about the sequence of occurrence in respect of jumping of red light by WagonR car driven by accused Md. Khizar and when Ct Vijender (PW4) in his discharge of duty stopped the WagonR car of Md. Khizar then not only he was obstructed in discharge of his such duty but was also assaulted, criminal force was used upon him to deter him from his duties as the WagonR car moved ahead by accused Md Khizar driving it and resulting into fall of Ct Vijender (PW4) upon the bonnet of the said car and while he was holding the bonnet of said car with both his hands, with full grip, accused Mohd Arish tried to dislodge him from SC No. 63/2011 8/36 State Vs. Mohd. Khizar & Anr.
the car by giving him fist blows and after said vehicle moved at few hundred meters it was got stopped by the accompanying police officials of Ct Vijender (PW4) namely SI (then ASI) Ram Mehar (PW5) and Ct Gambhir (PW6) with the aid of passersby/public persons and in the said occurrence grievous hurt was caused to Ct Vijender (PW4) while accused Mohd Khizar was so driving the WagonR car without valid licence. Ld. Addl. PP for the State also argued that the then DCP Traffic, Sh D.P Verma (PW12) has proved his complaint under Section 195 Cr.P.C and has prayed for conviction of the accused persons.
11. Ld. Counsels for the accused argued that accused persons were not hardened criminals; were having no need to flee away and there was also no need for Ct Vijender (PW4) to put his life in danger as during those days the home delivery of challan of traffic violation was functional; despite availability, no public witness has been cited nor examined; it were the police officials at the place of occurrence who demanded bribe just because the accused had stopped the car few steps ahead of stop line and on refusal of the SC No. 63/2011 9/36 State Vs. Mohd. Khizar & Anr.
accused, not only accused were beaten but their car was also damaged and they were falsely implicated in this case. It has also been argued that the testimonies of material witnesses viz. PWs 4,5,6 as well as IO/SI Harbir Singh (PW13) embody different version, are in contradiction due to which their testimonies cannot be relied upon to convict the accused persons. Ld. Defence Counsels have prayed for acquittal of the accused. It was admitted by Ld. Defence Counsel for the accused Md. Khizar in the course of arguments that at the time of occurrence while driving said car Mohd. Khizar was not having any driving licence with him.
12. The case of prosecution primarily hinges upon the testimonies of material witnesses namely injured/victim Ct Vijender (PW4); the eye witness SI (then ASI) Ram Mehar (PW5), Ct Gambir (PW6); the investigating officer SI Harbir Singh (PW13), Ct Vinay Kumar (PW11) who accompanied IO/SI Harbir Singh (PW13).
13. In "State of Gujarat v. Raghunath Vamanrao Baxi,"AIR 1985 SUPREME COURT 1092, it was held that SC No. 63/2011 10/36 State Vs. Mohd. Khizar & Anr.
"In appreciating oral evidence, in criminal cases, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter. Where the witness is found to be partly truthful or to spring from tainted sources, the court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a court is not entitled to reject the evidence of a witness merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating agencies. For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. It is extremely unfair to a witness to reject his evidence by merely giving him a label."
14. In "Karamjit Singh v. State"AIR 2003 SUPREME COURT 1311, it was also held that there is no principle of law that without corroboration by independent witnesses testimony of police witnesses cannot be relied upon ; presumption that person acts honestly applies as much in favour of police personnel as of other person ; it is thus not proper judicial approach to distrust and suspect SC No. 63/2011 11/36 State Vs. Mohd. Khizar & Anr.
them without good grounds.
15. HC Shoorveer (PW7) has brought on record copy of duty chitta register Ex PW7/A in terms of which Ct Vijender (PW4); SI (then ASI) Ram Mehar (PW5) and Ct. Gambhir (PW6) were on duty on 11/3/2006 at Shershah Road Mathura Road. Also, HC Shoorveer (PW7) has brought on record the copy of DD No. 5, dated 11/03/2006 as Ex PW7/B in terms of which Ct Vijender (PW4) departed from Tilak Marg Circle at 7.45 am for the official duty of arrangement for Vigyan Bhawan with direction to report for his duty at his point. Accordingly, the version of Ct Vijender (PW4) to be on duty as traffic police constable at the place of occurrence at the time of occurrence is borne out of Ex PW7/A and Ex PW7/B, aforesaid and proved accordingly.
16. When read as a whole, I find that testimonies of aforesaid material witnesses Ct. Vijender Singh (PW4); SI (then ASI) Ram Mehar (PW5) and Ct. Gambhir (PW6) inspire confidence on material counts. So far as the narration of sequence of occurrence is SC No. 63/2011 12/36 State Vs. Mohd. Khizar & Anr.
concerned relating to the core of presented case of prosecution viz., (1) accused Mohd Khizar driving WagonR car no. DL3CR3390 from Subramaniam Bharti Marg side, having jumped red light traffic in rash and negligent manner; (2) as soon as Ct Vijender (PW4) approached towards the car, aforesaid and was in front, then accused Mohd Khizar had moved the car and as a consequence Ct Vijender (PW4) was hit by the car and fell on the bonnet of the car, caught hold of bonnet with full grip; (3) thereafter the driver of the said WagonR car namely accused Mohd Khizar having moved the car ahead and accused Mohd Arish having tried to dislodge Ct Vijender (PW4) from the bonnet of said car, regarding which Ct Vijender (PW4) stated that accused Arish gave him fist blows but still he (PW4) did not leave the bonnet; (4) after the aforesaid Maruti WagonR had moved at considerable distance, then the same was got stopped by the police officials with the aid of persons in other vehicles; the testimonies of aforesaid material witnesses Ct. Vijender Singh (PW4); SI (then ASI) Ram Mehar (PW5) and Ct. Gambhir (PW6) inspire confidence and appear trustworthy. SC No. 63/2011 13/36
17. Of course, there are certain variations, some discrepancies emanating out of the testimonies of aforesaid material witnesses Ct. Vijender Singh (PW4); SI (then ASI) Ram Mehar (PW5); Ct. Gambhir (PW6) as well as SI Harbir Singh (PW13) in respect of their versions being different on the aspects of writing work done at spot; reaching of police party at the spot; injuries on the body of injured, whether or not blood came out from the person of injured Ct Vijender (PW4); the vehicle used in removing injured to hospital and recording of the statement of the prosecution witnesses.
18. SI (then ASI) Ram Mehar (PW5) testified that he had never done duty at police station and had only appeared before the court 4/5 times, that too in cases related to traffic violation. All these aforesaid material witnesses PW4,PW5 and PW6 were examined on 27/09/2011 i.e more than five and half years later to the occurrence. Though initially SI (then ASI) Ram Mehar (PW5) fumbled in his examinationinchief saying when the car of accused was stopped, they all had went to police station Hazarat Nizamuddin; the injured constable had sustained injuries in his hand including the palm. SC No. 63/2011 14/36
When cross examined by Ld. Addl. PP for the State, SI (then ASI) Ram Mehar (PW5) admitted that SI Harbir Singh (PW13), IO with staff had arrived at the spot, recorded statement of Ct Vijender (PW4); that he (PW5) had taken lift from other vehicle and had reached the place where WagonR car was got stopped; an ambulance took injured Ct Vijender (PW4) to AIIMS for treatment and that they had not gone immediately to police station. Also in the course of cross examination by Ld. Defence Counsel, SI (then ASI) Ram Mehar (PW5) elicited that he had sat on the pillion seat of two wheeler scooter and reached near WagonR car within 3/4 minutes, at the place where it was stopped ahead.
19. Ct Gambhir (PW6), though has corroborated the testimony of injured Ct Vijender (PW4) but could not tell the number of the offending car and stated that he could not identify the said car as he had not paid any attention towards the number of the car. Yet, Ct Gambhir (PW6) after five and half years of occurrence had testified in corroboration in all other material aspects to the version of prosecution regarding the car of accused having jumped the red light SC No. 63/2011 15/36 State Vs. Mohd. Khizar & Anr.
at the time of occurrence, the car of accused being stopped on giving signal and while Ct Vijender (PW4) was in the process of going towards the said car, it was moved ahead and its speed was increased, falling of Ct Vijender (PW4) on the bonnet of the car; the car was moved and sped away by the accused persons, who were identified by faces, though not by names by Ct Gambhir (PW6) in the court in the witness box. Also Ct Gambhir (PW6) testified that Ct Vijender (PW4) sustained fracture in his hand.
20. Dr Tej Prakash (PW1) was partly examined, not cross examined so his incomplete statement cannot be read in evidence.
21. Dr. Avinash Kumar (PW3) has proved MLC No. 31200, dated 11/03/2006 of Ct Vijender (PW4) as Ex PW3/A prepared by Dr Rakesh Ranjan as said doctor had left the AIIMS hospital, his present whereabouts were not known and PW3 identified writings and signatures of Dr Rakesh Ranjan.
22. Aforesaid MLC Ex PW3/A finds mention of 11/03/06 at SC No. 63/2011 16/36 State Vs. Mohd. Khizar & Anr.
21.05 hours as the date and hour of arrival of Ct Vijender (PW4) in AIIMS Casualty, brought by Ct Vinay (PW11). Also is mentioned in Ex PW3/A about the alleged history to be RTA today night, hit by car and Ct Vijender (PW4) complaining pain in right index finger while being conscious and oriented. Xray of chest and right index finger were advised.
23. Dr Alok Mittal (PW2) has proved the Xray report Ex PW2/A of Ct Vijender (PW4) prepared by Dr Pooja as said doctor had left the services of hospital and her present whereabouts were not know and Dr Alok Mittal (PW2) had identified her signatures and writing. As per said Xray report Ex PW2/A, injured Ct Vijender (PW4) had sustained fracture on right first metacarpal bone. Dr. Alok Mittal (PW2) further clarified that the metacarpal bone is situated in the hand. In terms of aforesaid fracture in right metacarpal bone of injured Ct Vijender (PW4), the injury in MLC Ex PW3/A was opined as grievous.
24. Sh D.P Verma (PW12), the then DCP Traffic has filed SC No. 63/2011 17/36 State Vs. Mohd. Khizar & Anr.
complaint under Section 195 Cr.P.C as Ex PW12/A alongwith chargesheet for commission of offences under Sections 186/353/279/34 IPC and 3/181 M.V Act by the accused persons.
25. In 2008 CRI. L. J. 3061 , "Dalbir Singh v. State of Haryana", Hon'ble SUPREME COURT held that " Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar.
The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of SC No. 63/2011 18/36 State Vs. Mohd. Khizar & Anr.
evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC
460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of SC No. 63/2011 19/36 State Vs. Mohd. Khizar & Anr.
Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be cateogrised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
26. Of course in evidence there is discrepancy regarding the date of the occurrence testified as 13/03/06 by PW4 instead of actual date 11/03/06 as argued by Ld. Defence Counsel. The discrepancies in evidence of aforesaid material witnesses, elicited by Ld. Defence Counsel including that of the date of commission of offence, apparently are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror and giving of the said imaginary details on the spur of the moment, perhaps also being over awed by the Court atmosphere and the piercing cross examination. The injured PW4 was candid while stating the entire sequence of occurrence,elicited above. SC No. 63/2011 20/36
27. Also, the discrepancies, afore elicited, emanating from testimonies of material witnesses Ct Vijender Singh (PW4); SI Ram Mehar (PW5) and Ct Gambhir (PW6) are of trivial nature, not touching to the core and basic version of the prosecution case in respect of (1) accused Mohd Khizar driving WagonR car no. DL3CR3390 from Subramaniam Bharti Marg side, having jumped red light traffic in rash and negligent manner; (2) as soon as Ct Vijender (PW4) approached towards the car, aforesaid and was in front, then accused Mohd Khizar had moved the car and as a consequence Ct Vijender (PW4) was hit by the car and fell on the bonnet of the car, caught hold of bonnet with full grip; (3) thereafter the driver of the said WagonR car namely accused Mohd Khizar having moved the car ahead and accused Mohd Arish having tried to dislodge Ct Vijender (PW4) from the bonnet of said car, regarding which Ct Vijender (PW4) stated that accused Arish gave him fist blows but still he (PW4) did not leave the bonnet; (4) after the aforesaid Maruti WagonR had moved at considerable distance, then the same was got stopped by the police officials with the aid of persons in other vehicles. Also the elicited aforesaid discrepancies in SC No. 63/2011 21/36 State Vs. Mohd. Khizar & Anr.
testimonies of material witnesses by no way corrode the credibility of these material witnesses in respect of test on aforsaid material counts. The variance in afore elicited discrepancies can be very well said to be having arisen on account of recording of testimonies after five and half years of occurrence as it is not expected of the witnesses to reproduce the details of sequence of occurrence in vivid details as replay of tape recorder or video recording of the occurrence. The substantial version of prosecution about afore elicited core facts of the prosecution has been proved by Ct Vijender Singh (PW4); SI Ram Mehar (PW5) and Ct Gambhir (PW6).
28. At the stated time and date of occurrence accused Mohd Khizar was driving WagonR car at the place of occurrence. Ct Vijender Singh (PW4); SI Ram Mehar (PW5) and Ct Gambhir (PW6) have proved that accused Mohd Khizar had jumped the red light signal. Ct Vijender Singh (PW4); SI Ram Mehar (PW5) and Ct Gambhir (PW6) have also proved that as soon as Ct Vijender Singh (PW4), on traffic police duty, approached towards the car, aforesaid and was in front, then accused Mohd Khizar had moved the car and SC No. 63/2011 22/36 State Vs. Mohd. Khizar & Anr.
as a consequence Ct Vijender Singh (PW4) was hit by the car and fell on the bonnet of the car. Ct Vijender Singh (PW4) has also proved that he had caught hold of the bonnet with the full grip but yet accused Mohd Khizar moved the car ahead. It is also proved by Ct Vijender Singh (PW4) that while in such process of moving of car ahead, accused Mohd Arish gave fist blows to hanging Ct Vijender Singh (PW4) at bonnet of the car and tried to dislodge Ct Vijender Singh (PW4) and in the said process the Ct Vijender Singh (PW4) sustained fracture in his right hand.
29. By testimonies of aforesaid material witnesses Ct Vijender Singh (PW4); SI Ram Mehar (PW5); Ct Gambhir (PW6) and SI Harbir Singh (PW13), it is proved on record that accused Mohd Khizar was so driving the WagonR car no. DL3CR3390 without any valid driving licence and had even jumped the red light. The driver of mechanically propelled vehicle is under bounden duty to observe all necessary care and caution while so driving and to obey traffic rules and light signals to not to endanger human life. Oblivious to such duty while driving WagonR car, accused Mohd Khizar even SC No. 63/2011 23/36 State Vs. Mohd. Khizar & Anr.
jumped the red light, endangered the human life, so was criminally negligent. When, on duty, police traffic constable Vijender Singh (PW4) approached the car driven by accused Mohd Khizar, instead of coming out of said car, after stopping it on the road side and obeying the command of law from officials of traffic police, the accused Mohd Khizar moved the car ahead. Consequent was the car striking Ct Vijender Singh (PW4), resulting in constable Vijender Singh (PW4) falling upon the bonnet of the car. It was fortunate for Ct Vijender Singh (PW4) that he had caught hold of bonnet with full grip and he could avoid some dangerous injuries, though in the process he sustained fracture in his right hand.
30. Medical evidence, elicited herein above, also corroborates the cause of fracture in the right hand of Ct Vijender Singh (PW4) and thus a grievous injury. Such injuries were sustained by Ct Vijender Singh (PW4) when he was on duty and doing duty at the spot but was obstructed in discharge of his such duty and criminal force was used to deter him from his duty.
31. Sharing of common intention on the part of accused SC No. 63/2011 24/36 State Vs. Mohd. Khizar & Anr.
Mohd Arish with co accused Mohd Khizar is apparent on face of record and proved, beyond doubt. Ct Vijender Singh (PW4) had testified that after he had come upon the bonnet, car driven by accused Mohd Khizar was being moved ahead, then accused Mohd Arish sitting by the side of driver accused Mohd Khizar had tried to dislodge him from the car for which he (accused Arish) gave him fist blows with the intention of making Ct Vijender Singh (PW4) fall down on the road. Mere non joining of independent witnesses to corroborate the versions of Ct Vijender (PW4), SI (then ASI) Ram Mehar (PW5) and Ct Gambhir (PW6) will not entitle any of the accused acquittal, since it would be extremely unfair to Ct Vijender (PW4); SI (then ASI) Ram Mehar (PW5) and Ct Gambhir (PW6) to reject their evidence in toto, merely giving them a label of being police officers and interested in the success of the prosecution. Testimonies of Ct Vijender (PW4); SI (then ASI) Ram Mehar (PW5) and Ct Gambhir (PW6) are found to be truthful on material facts, corroborated by medical evidence and do not spring from tainted sources. Even the accused do not deny their presence at the scene of crime, even it is admitted that accused Mohd Khizar was so driving SC No. 63/2011 25/36 State Vs. Mohd. Khizar & Anr.
WagonR car without valid driving licence on said date, time and place. Putting up the feeble plea of demand of bribe by the traffic police officials, does not lend any credence to defence put forth as no such kind of complaint had been made in writing to any of the authorities concerned, so it cannot find favour with the Court. There are no good grounds to distrust and suspect the versions of Ct Vijender (PW4); SI (then ASI) Ram Mehar (PW5) and Ct Gambhir (PW6) on material counts, aforesaid. Their testimonies appear to be intrinsically reliable, cogent and trustworthy on material counts. Mechanical inspection report Ex PW8/A of WagonR car no. DL3CR3390; of Sh Shadi Lal (PW8), retired foreman of DTC embodies mention of fresh damages on the car inter alia as, (1) scratches and dent on bonnet; (2) scratches on front side mudguard and fenner; which corroborate the version of Ct Vijender Singh (PW4). Sh Mukhtar Hussain (PW9), father of accused Mohd Arish gave reply Ex PW9/B to notice under Section 133 MV Act, Ex PW9/A stating that accused Mohd Khizar was driving WagonR car DL3CR3390 at the time of incident. Applications Ex PW13/DA and Ex PW13/DB were moved by IO/SI Harbir Singh (PW13) to the SC No. 63/2011 26/36 State Vs. Mohd. Khizar & Anr.
Chief Medical Officer, AIIMS for the medical examination of accused persons, where there is mention on both applications by examining doctor at 12/56 am and 12/55 am of 12/03/2006 that no external injuries were seen. No evidence contrary to Ex PW13/DA and Ex PW13/DB has been led on record to prove that accused had sustained injuries, as alleged.
32. Aforesaid discussions lead me to the conclusion that the prosecution has been successful in proving its case against the accused persons, beyond reasonable doubt. Accordingly, accused Mohd Khizar is held guilty and convicted for the offences under Sections 279 IPC; 186 IPC read with Section 34 IPC; 353 IPC read with Section 34 IPC; Section 333 IPC read with Section 34 IPC and Section 3/181 Motor Vehicles Act. Also, accused Mohd Arish is held guilty and convicted for the offences under Sections 186 IPC read with Section 34 IPC; 353 IPC read with Section 34 IPC and 333 IPC read with Section 34 IPC. Let they be heard on the point of sentence.
Announced in the open court (GURVINDER PAL SINGH)
on date 28/01/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 63/2011 27/36
State Vs. Mohd. Khizar & Anr.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 63/2011
State Vs. : 1. Mohd. Khizar
S/o Mohd. Asgar
R/o H.No. 2150, Kucha Dakshini
Rai, M.P. Street, Dariyaganj,
Delhi.
2. Mohd. Arish
S/o Mukhtyar Hussain
R/o H. No. 2220, Kucha
Challan, Dariyaganj, New Delhi
FIR No. 180/2006
P.S. H. N. Din
U/s 186/333/353/279/34 IPC & 3/181 MV Act.
ORDER ON SENTENCE:
Having convicted accused Mohd Khizar for the offences under Sections 279 IPC; 186 IPC read with Section 34 IPC; 353 IPC SC No. 63/2011 28/36 State Vs. Mohd. Khizar & Anr.
read with Section 34 IPC; Section 333 IPC read with Section 34 IPC and Section 3/181 Motor Vehicles Act and accused Mohd Arish for the offences under Sections 186 IPC read with Section 34 IPC; 353 IPC read with Section 34 IPC and 333 IPC read with Section 34 IPC, I have heard the Ld. Addl. PP for the State, Ld. Counsels for the convicts, the convicts and have perused the record.
2. Both accused/convicts were arrested in the intervening night of 11th and 12, March, 2006, were produced in the court on 12/03/2006 and were sent to jail on that day. Both accused were enlarged on bail on 27/03/2006. Pursuant to conviction vide separate judgment, both convicts/accused were sent to jail on 28/01/2012, where they are till date.
3. Ld. Counsels for the convicts have prayed for lenient view for the convicts submitting that at the time of commission of the offences, the convicts were young boys of age 19 years; at that time and even today both convicts have not been involved in any other criminal case, they have clean antecedents and were victims of SC No. 63/2011 29/36 State Vs. Mohd. Khizar & Anr.
circumstances. Ld. Counsels for the convicts have prayed that convicts may be enlarged on probation or else fine may be imposed.
4. Convict Mohd Arish is stated to be presently of age 25 years, unmarried having in his family parents, two younger brothers and sister; engaged in export business of silk fabric; Commerce Graduate having no history of litigation, to be married after two months since presently engaged.
5. Convict Mohd Khizar is stated to be of age 24 years, unmarried having in his family parents and younger unmarried sister, giving earnings to his family earned from the occupation of Technical Support Officer with Convergys at Gurgaon, having done graduation i.e BCA. Convict Mohd Khizar submitted that his career will be ruined/black listed if he will be sent to jail further.
6. Ld. Addl. PP for the State prayed for awarding of the maximum permissible sentence to the convicts saying convict Mohd Khizar was criminally negligent, did not obey the command of law, SC No. 63/2011 30/36 State Vs. Mohd. Khizar & Anr.
dragged public servant Ct Vijender Singh (PW4) on bonnet of the Maruti WagonR car, driven without licence and in said process convict Mohd Arish gave fist blows to Ct Vijender Singh (PW4) hanging on the bonnet of the car with intent to cause fall of Ct Vijender Singh (PW4) and the acts of the convicts were with intent to prevent or deter Ct Vijender Singh (PW4) from discharging his duties as public servant, force was used upon the person of Ct Vijender Singh (PW4) and grievous injuries were caused to Ct Vijender Singh (PW4) since he sustained fracture in right metacarpal bone.
7. Of course, the convicts were of age around 19 years at the time of occurrence. Admittedly, convict Mohd Khizar was driving the Maruti WagonR car no. DL3CR3390 without any valid licence. At the scene of crime, convict Mohd Khizar drove the car and jumped the red light signal having on his side co accused Mohd Arish. Convict Mohd Khizar was oblivious to his duty of observing necessary care and caution while driving i.e., not to endanger human life, to obey traffic rules. Driving the WagonR car without licence, SC No. 63/2011 31/36 State Vs. Mohd. Khizar & Anr.
convict Mohd Khizar jumped the red light, endangering the human life of other users of the road. When the traffic police constable Vijender Singh (PW4) approached the car driven by convict Mohd Khizar, instead of coming out of the said car, after stopping it on the road side and obeying the command of law from officials of traffic police, convict Mohd Khizar moved the car ahead. Consequently the car struck Ct Vijender Singh (PW4), resulting in fall of Ct Vijender Singh (PW4) on the bonnet of the car. Said car was moved ahead by convict Mohd Khizar. In the process, convict Mohd Arish gave fist blows to Ct Vijender Singh (PW4) hanging on the bonnet of the car with intent to cause his fall. It was fortunate for Ct Vijender Singh (PW4) that he had caught hold of the bonnet with full grip, lest he would have fallen from the moving car and he may have sustained some dangerous/fatal injuries. Yet, Ct Vijender Singh (PW4) sustained fracture of metacarpal bone in his right hand, grievous injury.
8. The cases of road rage are increasing day by day in present society. Young blood in veins would not entitle driving a SC No. 63/2011 32/36 State Vs. Mohd. Khizar & Anr.
mechanically propelled vehicle without licence. Not only parents, but the motor vehicle owners also need to take care that no motor vehicle is handed to any unlicensed driver, nor such an unlicensed person is to be permitted to drive the motor vehicle. Yet, after driving car negligently, convict Mohd Khizar with his companion Mohd Arish, sharing common intention, caused grievous hurt to Ct Vijender Singh (PW4), the public servant on duty in traffic police. Enlarging such convicts on probation is passe part not made out.
9. There is no material on record of any previous conviction or involvement of any of the convicts in any other criminal case. Sending convicts behind bars for several years will ruin their careers and future prospects for their sole criminal act committed in their prime youth. I have seen glimpses of remorse writ large on the faces of convicts and and even spelt out by them in the course of hearing on sentence.
10. Having regard to the age, character and antecedents of the convicts, in present set of facts and circumstances, I accordingly SC No. 63/2011 33/36 State Vs. Mohd. Khizar & Anr.
sentence the convicts as under:
(1) Convict Mohd Khizar is sentenced for offences under Sections (a) 279 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 1,000/ and in default of payment of fine, to undergo simple imprisonment of one month; (b) 186 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 500/ and in default of payment of fine, to undergo simple imprisonment of 15 days; (c) 353 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 5000/ and in default of payment of fine, to undergo simple imprisonment of three months; (d) section 333 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 10,000/ and in default of payment of fine, to undergo simple imprisonment of six months and (e) Section 3/181 Motor Vehicles Act to period of imprisonment equal to period of detention undergone and fine of Rs.
500/ and in default of payment of fine, to undergo simple imprisonment of 15 days.
(2) Convict Mohd Arish is sentenced for the offences SC No. 63/2011 34/36 State Vs. Mohd. Khizar & Anr.
under Sections (a) 186 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 500/ and in default of payment of fine, to undergo simple imprisonment of 15 days; (b) 353 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs 5000/ and in default of payment of fine, to undergo simple imprisonment of three months and (c) 333 IPC read with Section 34 IPC to period of imprisonment equal to period of detention undergone and fine of Rs. 10,000/ and in default of payment of fine, to undergo simple imprisonment of six months.
11. In the event of non deposit of fine, the sentences of simple imprisonment shall run consecutively. The other sentences imposed on convicts shall ran concurrently. Benefit of section 428 Cr.P.C. be given. Period of imprisonment undergone by convicts shall be reduced from the period of sentence for which Superintendent Jail be directed accordingly. Copies of the judgment and the order on sentence be given to the convicts free of cost and immediately. Reader to prepare conviction warrants accordingly.
SC No. 63/2011 35/36
12. On recovery of the fine imposed, Rs 25,000/ out of it shall be paid to injured/victim Ct Vijender Singh (PW4) after expiry of period of appeal or subject to orders of Appellate court, in case appeal is preferred, whichever occurs later.
File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 30/01/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 63/2011 36/36