Delhi District Court
State vs . (1) Dinesh @ Atish @ Sudhir on 7 July, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 67/2011
Unique Case ID: 02404R0286812006
State Vs. (1) Dinesh @ Atish @ Sudhir
S/o Ved Prakash
R/o J1/53, Budh Vihar, PhaseI,
Sultanpuri, Delhi.
(Convicted)
(2) Ishwar @ Jaggi
S/o Jaswant
R/o S8, Mangolpuri, Delhi.
(Since Expired)
FIR No. : 496/2006
Police Station : Mangolpuri
Under Section : 186/353/307/34 IPC
25/27/54/59 Arms Act.
Date of committal to Sessions Court : 11.10.2006
Date on which orders were reserved : 05.06.2012
Date on which judgment pronounced : 05.07.2012
JUDGMENT
Brief Facts:
(1) As per the allegations, on 20.7.2006 at about 2:15 PM near Mangol Puri, Railway Station, by the side of boundary wall, the accused Dinesh @ Atish @ Sudhir and Ishwar @ Jaggi (since State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 1 of 47 expired), in furtherance of their common intention, voluntarily obstructed HC Sushil Kumar, Ct. Rajbir Singh and Ct. Ramphal, in discharge of their public functions. It is alleged that both the accused Dinesh @ Atish @ Sudhir and Ishwar @ Jaggi (since expired) used criminal force upon HC Sushil Kumar, Ct. Rajbir Singh and Ct.
Ramphal, with intention to prevent them from discharging their official duties as public servants. It is further alleged that on 20.7.2006 at about 2:15 PM at the aforesaid place the accused Dinesh @ Atish @ Sudhir fired at HC Sushil Kumar by country made pistol which pistol was recovered from his possession without any permit or license. It is also alleged that on 20.7.2006 at about 2:15 PM at the aforesaid place the accused Ishwar @ Jaggi fired at Ct. Rajbir by country made pistol which pistol was recovered from his possession without any permit or license.
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 20.07.2006 on receipt of DD No.16 SI R. K. Maan along with Ct. Rakesh reached at the spot i.e. Mangol Puri Railway Station near boundary wall where they met HC Sushil and Ct. Rajbir along with Ishwar @ Jaggi (since expired). Ct. Rajbir handed over one desi katta and one live cartridge to SI R. K. Maan allegedly recovered from the accused Ishwar @ Jaggi. Ct. Rajbir also handed over another a desi katta to State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 2 of 47 SI R. K. Maan allegedly recovered from the accused Dinesh @ Aatish. SI R. K. Maan recorded the statement of HC Sushil vide who informed him that on 21.07.2006 at about 1:45 PM he along with HC Rajbir reached near Veer Kanwar Singh Marg, ST Road along with Ct. Ramphal during patrolling duty where one secret informer informed him (ASI Sushil) that two dreaded criminals / badmash of the area namely Dinesh @ Atish and and Ishwar @ Jaggi (since expired) were sitting on the road coming from the side of the Mangol Puri Railway Station having arms with them and might commit some robbery in the area. HC Sushil further informed the SI R. K. Maan and thereafter he along with Ct. Rajbir and Ct. Ramphal reached at the spot through the factory area and there secret informer pointed towards Dinesh @ Atish and Ishwar who were sitting behind the bushes. According to HC Sushil he requested 2 - 3 passer byes to join the raiding party but none agreed and thereafter at about 2:15 PM, he HC Sushil (now ASI) came from the side of Railway Station while Ct. Rajbir and Ct. Ramphal came from another side and they exhorted both the accused persons to come out from behind the bushes after raising their hands but in the meantime one of the accused fired upon him (HC Sushil) from a country made pistol on which he (HC Sushil) saved himself by lying on the ground and the said boy was overpowered by Ct. Ramphal who disclosed his name as Ishwar @ Jaggi. The complainant HC Sushil (now ASI) has State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 3 of 47 further told the Investigating Officer that the accused Dinesh @ Atish also tried to fire upon Ct. Rajbir but he was overpowered by Ct. Rajbir by catching hold of his hand as a result of which he could not fire and in the meantime Ct. Rajbir snatched the katta from his hand but the accused Dinesh @ Atish pushed Ct. Rajbir and tried to flee by jumping over the broken wall when he (ASI Sushil) ran after him (Dinesh @ Atish) and challenged him to stop, he (Dinesh @ Atish) threatened him not to come near him or else he would slashed himself with a blade by saying mere pass mat aana verna me apne aap ko blade maar loonga. Despite the same, ASI Sushil overpowered him but by that time he (Dinesh @ Atish) slashed himself with a blade on his head and chest. According to the complainant HC Sushil (now ASI), one country made pistol and one more live cartridge of 12 bore was recovered from the possession of accused Ishwar @ Jaggi. Thereafter, on the basis of the statement made by HC Sushil Kumar, rukka was prepared, FIR was registered and both the accused Dinesh @ Atish @ Sudhir and Ishwar @ Jaggi were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(3) Charges under Sections 186/353/307 read with Section 34 Indian Penal Code and under Sections 25/27/54/59 Arms Act, were State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 4 of 47 settled against the accused Dinesh @ Atish @ Sudhir, to which he pleaded not guilty and claim trial.
EVIDENCE:
(4) In order to discharge the onus upon it, the prosecution has examined as many as thirteen witnesses:
Medical Evidence:
(5) PW1 Dr. Binay Kumar has deposed that on 20.07.2006 he was posted as a Medical Officer in Casualty in Sanjay Gandhi Memorial Hospital, Mangolpuri and on that day patient Dinesh @ Sudhir S/o Ved Prakash, aged 21 years male was brought by Ct.
Rampal for medical examination with the alleged history of self inflicted wound as told by patient himself. According to the witness, on local examination following injuries were found on the patient : Two fresh incised wound of 4 cm x 1cm x 0.5cm and 2.5 cm x 0.25 cm x .5 cm over flexor aspect of right wrist joint.
Three fresh incised wound over the left fore arm of 4 cm x 0.75 cm x .5cm, 4cm x 0.25 cm and 4cm x 0.2cm x 0.25 cm.
Four fresh incised wound of varying length x .25cm x .25 cm over front of chest.
State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 5 of 47 Four fresh incised wound of 5cm x .25 cm x .25 cm x.
25 cm over occipital region, 5cm x 0.25 cm x 0.25 cm. Over the right temporo parital region of scalp. Two fresh incise wound of 7cm x .5cm x.5cm, 8cm x 2.5 cm x 2.5 cm over left fronto parital region.
Superficial incised wound (horizontally placed) over the abdomen.
(6) Witness has further deposed that in his opinion, the nature of injuries was simple caused by sharp weapon and injuries may be produced by self. According to him the MLC Ex.PW1/A was prepared by him and his report on the same is marked point A to B which bears his signatures at point X. (7) During his crossexamination by Ld. Defence Counsel, witness has deposed that he does not remember whether the patient was wearing clothes or not at the time of medical examination. He also does not remember whether the clothes of patient were taken into possession by the police in his presence. Witness has further deposed that there is possibility that patient might be held by someone and other persons inflicted injuries on him. Forensic Evidence:
(8) PW5 V. R. Anand, Sr. Scientific Officer (Ballistic) FSL, Rohini, has deposed that on 08.08.2006 two sealed parcels were State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 6 of 47 received in the office of FSL and same were marked to him for examination. According to him, he found the seals intact as per FA letter. Witness has further deposed that parcel No. 1 was opened by breaking the seal and it was found to contain one country made pistol of 12 bore marked Ex.F1 and one 12 bore cartridge marked as Ex.A1 and one 12 bore cartridge case Ex.EC1. According to him Parcel No. 2 was opened and it was found to contain one country made pistol of .315 inch bore marked Ex.F2 and one 8 mm /.315 cartridge marked as Ex.A2. According to him he examined the weapons and cartridges and he found that country made pistol Ex.F1 and F2 were in working condition and test fire was conducted successfully.
Witness has further deposed that 12 bore cartridge mark A1 was alive and can be fired through 12 bore fire arm, 8mm / .315 inch cartridge mark Ex.A2 was alive and can be fired through .315 inch bore fire arm. According to him 12 bore cartridge case Ex.EC1 was a fired cartridge, the 12 bore cartridge Ex.A1 and one 12 bore cartridge from the laboratory stock were test fired through country made pistol of 12 bore mark Ex.F1 and the test fired cartridge were marked as TC1 and TC 2 respectively.
(9) Witness has further deposed that the cartridge A2 was test fired through the country made pistol .315 inch bore Ex.F2. According to him the individual characteristic of firing pin marks State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 7 of 47 present on evidence fired cartridge case marked Ex.EC1 and on the test fired cartridge case mark TC1 and TC2 were examined and compared under the comparison microscope model Leica DMC and were found identical, hence Ex.EC1 has been fired through the country made pistol 12 bore mark Ex.F1. According to him the Ex.F1 and F2/A1 and A2 and EC1 are fire arms / ammunition as defined under the Arms Act and he prepared his detailed report and same is Ex.PW5/A signed by him at point A with seal impression. (10) In his crossexamination by Ld. Defence Counsel, witness has denied the suggestion that he mechanically prepared the report or that he does not conducted the test fire and prepared the report at the instance of the investigating officer or that he was deposing falsely. Police Witnesses:
(11) PW2 ASI Madan Lal has deposed that on 20.07.2006 he was performing the duty as Duty Officer from 5 PM to 1AM and on that day SI R.K. Mann sent a rukka through Ct. Rajbir Singh on the basis of which he registered the case FIR No. 496/06, U/s 186/353/307/34 IPC and 25/27/54/59 Arms act which is in his handwriting. Witness has also brought the original FIR, carbon copy of same is Ex.PW2/A. Witness has further deposed that he made his endorsement on the rukka which is Ex.PW2/B and after registration of the case he handed over the original rukka and carbon copy of FIR State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 8 of 47 to Ct. Rajbir. In his crossexamination by Ld. Defence Counsel, the witness has deposed that Ct. Rajbir took the rukka to police station at about 5:50 PM and it took him 1 hour and 15 minutes in recording the FIR. Witness has denied the suggestion that he was deposing falsely.
(12) PW3 Ct. Ganga Swaroop has deposed that on 20.07.2006 he was posted at Police Post Sanjay Gandhi Memorial Hospital, Mangolpuri as a DD writer and on that day, he made the departure entry of HC Sushil Kumar, Ct. Rajbir and Ct. Ramphal in daily diary register and an entry was made by him at serial No. 14.
Witness has also brought the original daily diary register, photocopy of the same is Ex.PW3/A. Witness has further deposed that at 2:50 PM duty constable Raja Ram informed him from the hospital that Dinesh @ Aatish @ Sudhir was admitted in the hospital by Ct. Ramphal and he made the DD entry No. 16 in daily diary register, photocopy of the same is Ex.PW3/B. The witness has not been cross examined on behalf o the accused and the entire testimony has gone uncontroverted.
(13) PW4 HC Rajbir Singh has deposed that on 20.07.2006 he was posted at Police Station Mangolpuri as constable and on that day he along with HC Sushil Kumar and Ct. Ramphal were on patrolling duty in the area. According to him at about 1.45 PM they reached at Vir Kunwar Singh Park, ST road. Witness has further State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 9 of 47 deposed that one secret informer came there and informed to HC Sushil Kumar that two bad desperate criminals namely Ishwar @ Jaggi and Dinesh @ Aatish were present at road in between to Mangolpuri Railway Station upto main road and they had intention to commit crime and having weapons. According to him on that information, they reached by the side of the road through factory depot along with secret informer and secret informer pointed out the place i.e. boundary wall which was situated on the road from Pagdandi to Railway Station. Witness has further deposed that both the boys were sitting there and investigating officer asked two three passersby to join the raiding party. According to him after disclosing them about the secret information they did not join them due to lapse of time, thereafter they proceeded towards the boys at about 2:15 PM and HC Sushil Kumar took the way from railway station side whereas he along with Ct. Ramphal proceeded through the road towards the boundary wall. Witness has further deposed that they saw both the boys were sitting the bushes by the side of the boundary wall and HC Sushil Kumar asked both the boys to surrender by raiding their hands in loud noise. According to him on the other side they uttered same words and in the meantime, one of the boys took out a country made pistol and fired towards HC Sushil. Witness has further deposed that HC Sushil saved himself by ducking and Ct. Ramphal caught hold the boy who fired but the second boy tried to State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 10 of 47 fire on his side, but he caught hold his hand and snatched his country made pistol. According to him that boy pushed him and ran away towards the boundary wall side on which he fell down on the ground and HC Sushil Kumar ran away behind the boy who tried to ran away and jumped the boundary wall, but the said boy threatened HC Sushil that he will inflict injury himself by the blade, but HC Sushil reached there. According to him in the meantime that boy himself inflicted injury on the hands, head and chest by the blade. Witness has further deposed that he was apprehended and brought at the spot by HC Sushil Kumar and he told his name as Dinesh @ Aatish whereas other boy told his name Ishwar @ Jaggi. Witness has also correctly identified both the accused who were present in the court. According to him on formal search of the accused Ishwar @ Jaggi one live cartridge of 12 bore recovered from his possession whereas country made pistol was already taken into possession and one country made pistol and live cartridge were recovered from accused Dinesh. Witness has further deposed that accused Dinesh was taken to Sanjay Gandhi Memorial Hospital for his medical examination by Ct. Ramphal and in the meantime, SI R.K. Mann and Ct. Rakesh Kumar reached at the spot. According to him, HC Sushil handed over country made pistol and live cartridge to the investigating officer which was recovered from the accused Ishwar @ Jaggi and on loading the country made pistol that empty cartridge was recovered. State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 11 of 47 Witness has further deposed that the Investigating officer prepared sketch of weapon and cartridge and in the meantime, Ct. Ramphal along with accused Dinesh reached the spot. According to him, the sketch of the country made pistol and two cartridges is Ex.PW4/A and case property was turned into parcel and sealed with the seal of RK and taken into possession vide memo Ex.PW4/B. (14) Witness has further deposed that investigating officer also prepared the sketch of the country made pistol and one live cartridge and same is Ex.PW4/C and it was also turned into a cloth parcel and sealed with the seal of RK and seized vide memo Ex.PW4/D. According to him, the investigating officer recorded statement of HC Suhil Kumar, prepared the rukka and sent through him for registration of the FIR, thereafter he went to police station and after getting the case registered came to the spot and handed over the copy of FIR and rukka to investigating officer. Witness has further deposed that the investigating officer also prepared site plan at the instance of HC Sushil and both the accused persons were arrested vide memo Ex.PW4/E and Ex.PW4/F and their personal search was conducted vide memo Ex.PE4/G and Ex.PW4/H. According to him accused Ishar @ Jaggi fired on the person of HC Sushil whereas accused Dinesh @ Aatish tried to fire on him but he snatched his loaded country made pistol.
State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 12 of 47 (15) Witness has further deposed that both the accused were brought at police post and then interrogated and they made their disclosure statement vide Ex.PW4/I and Ex.PW4/J, thereafter investigating officer recorded his statement. According to him accused persons were confined to lock up and the case property was deposited with MHC (M) by the investigating officer. Witness has also correctly identified the case property i.e. country made pistol having the body of brass and wooden butt and barrel of iron along with a empty cartridge as the same which was recovered in loaded condition from accused Dinesh. The country made pistol is Ex.P1 and cartridge is Ex.P2. Witness has also correctly identified country made pistol having wooden strips on butt and is of iron along with two empty of red color as the same which was recovered in loaded condition from the possession of accused Ishwar @ Jaggi and one live cartridge was recovered from his possession and one empty was recovered at the time of unloading of country made pistol. The country made pistol is Ex.P3 and empty cartridge is Ex.P4 collectively.
(16) In his cross examination by Ld. Defence Counsel, witness has deposed that they had recorded a common departure entry vide DD No.14 at PP Sanjay Gandhi Hospital when they left the police post for patrolling the area at 1.00 PM and has voluntarily added that there was no separate entry on his behalf. Witness has denied the State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 13 of 47 suggestion that the place where the secret information was received is a thickly populated area and remains crowded through out the day and has voluntarily added that it is an open area. According to him he was not carrying his wireless set during the patrolling and he did not possess a mobile phone at that time and therefore he was not carrying any mobile phone. Witness has admitted that both the accused were previously known to him and has voluntarily added that they were Bad Characters (BCs) of the area. Witness has further deposed that he does not recollect if he had remained involved in the investigation of any of the cases against the accused Dinesh. Witness has admitted that the place from where he had seen the accused he could also be visible and has voluntarily added that the accused did not have their attention towards them. Witness has admitted that they were all (himself, HC Sushil and Ct. Ramphal) were in uniform and it was possible for the accused to see them and run away and has voluntarily stated that accused did not have their attention towards them. Witness has further deposed that HC Sushil did not note down the names and addresses of the public persons who were asked to join the proceedings and had not issued any notice in writing to those passers byes to join the proceedings. (17) According to him the blade with which Dinesh @ Aatish had slashed himself had been thrown by him in the bushes and could not be traced and the site plan was prepared by the Investigating State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 14 of 47 officer in his presence but he had not signed the same as witness. Witness has further deposed that Investigating officer had shown the bushes where the accused were initially sitting and also the bushes where the accused Dinesh @ Aatish had thrown the blade but he is unable to tell whether the said bushes and the boundary wall over which the accused Dinesh had jumped has been shown in the site plan by the Investigating officer. The witness was shown the site plan marked Mark X which does not indicate any bushes or the boundary wall. Witness has denied the suggestion that the entire story has been concocted regarding the bushes behind which accused were noticed and also about the bushes where the alleged blade was thrown by the accused Dinesh @ Aatish. Witness has admitted that after the accused Dinesh slashed himself, he was bleeding profusely but he does not recollect whether the blood from the wounds of accused Dinesh fell on the ground and his clothes did not contained any blood stains and has voluntarily added that there were blood stains on the clothes of HC Sushil. Witness has further deposed that HC Sushil did not take the blood stained clothes of accused into possession and Investigating Officer had not placed any mark of identification or mentioned the case particulars on the alleged seized kattas. According to him they finally left the spot at about 8.00 PM and he took the rukka at about 5.30PM and returned back at the spot at about 6.45 PM. Witness has further deposed that no public persons State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 15 of 47 had joined the proceeding after the apprehension of the accused persons. Witness has denied the suggestion that all the memos and documents were prepared in the police station later on. Witness has denied the suggestion that signatures of accused were taken on the blank papers and forms which were later on converted into various memos and documents including the alleged disclosure statements. (18) Witness has further deposed that the crime team was not called at the spot in his presence and he does not recollect if Investigating Officer had lifted any stains of gun powder from the hands and clothes of accused Ishwar @ Jaggi. He does not recollect if the clothes of the accused Ishwar @ Jaggi were seized by the Investigating officer. Witness has denied the suggestion that he had not joined the investigations as deposed or that accused were not apprehended in the manner as deposed. Witness has further denied the suggestion that nothing was recovered from the possession of the accused or that the entire incident has been manipulated and concocted to falsely implicate the accused persons in the present case. Witness has denied the suggestion that the accused persons were wrongly confined and later falsely implicated in the present case. Witness has denied the suggestion that he was deposing falsely.
(19) PW6 HC Surender is a formal witness who has deposed by way of affidavit (in terms of provisions of Section 296 Cr.PC) State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 16 of 47 which is Ex.PW6/1 bearing his signatures at point A and B. Witness has proved the documents i.e. entry in register No. 19 vide number 6008, copy of which is Ex.PW6/A, entry in register No. 21 vide number 242/21/06, copy of which is Ex.PW6/B and acknowledgment of FSL is Ex.PW6/C. (20) In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that exhibits were not deposited with him as deposed. Witness has admitted that he had copied the contents of seizure memo in column No. 4 or that there are no initials of him at the bottom of column number four where the entry is closed or that there are no initial of ASI Dinesh Chandra in column number 7. According to him he cannot tell the time when the exhibits were deposited with him in the malkhana. Witness has denied the suggestion that the entires in register No. 19 are manipulated or that the same are ante dated and ante time at the instance of the investigating officer or that he was deposing falsely. (21) PW7 Ct. Raja Ram, a formal witness has deposed by way of affidavit (in terms of provisions of Section 296 Cr.PC) which is Ex.PW7/1 bearing his signatures at point A and B. During his cross examination by Ld. Defence Counsel, witness has denied the suggestion that they kept a register in the hospital pertaining to the messages passed on to the police station about any incident or report received. Witness has further deposed that his statement was State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 17 of 47 not recorded by the investigating officer in the present case. Witness has denied the suggestion that he had not passed on the information as deposed by him on 20.07.2006 or that he has been planted in the present case as a witness to prove the case of the prosecution or that he was deposing falsely.
(22) PW8 B. K. Singh, Addl. DCP has deposed that on 27.12.2007 he was working as Addl. DCP, Outer District, Delhi, and his subordinate staff had submitted the case file including the report U.s 173 Cr. P.C., statement of prosecution witnesses U/s 161 Cr. P.C. the seizure memo, ballastic report and other relevant documents pertaining to the present case before him. According to him, he had gone through the same and on being satisfied he had accorded Sanction U/s 39 of Arms Act to prosecute the accused Dinesh @ Atish @ Sudhir and Ishar @ Jaggi for the offence U/s 25 Arms Act vide Ex.PW8/A. In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that the documents as aforesaid were not placed before him or that he did not apply his mind and accorded the sanction in a routine and mechanical manner. (23) PW9 ASI Dinesh Chandra has deposed that on 08.08.06 he was posted at Police Station Mangol Puri as ASI and on that day, on the directions of investigating officer he was handed over two sealed pulandas duly seal with the seal of RKM by the MHCM and and FSL form. According to him, one pullanda contained a desi State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 18 of 47 katta / country made fire arm, live cartridge and used cartridge and the second pullanda also contained a country made pistol and one live cartridge which he took to FSL vide RC No. 242/21/06 which he deposited in the FSL Rohini. Witness has further deposed that he obtained the receipt from FSL and handed over the same to the MHC(M) on the same day and Investigating officer recorded his statement. In hiscross examination by Ld. Defence counsel, witness has deposed that he received the pullanda at about 10.00AM which he deposited in the FSL at about 11.30 AM. Witness has denied the suggestion that the pullandas were tampered by the Investigating officer while they were in his possession. Witness has denied the suggestion that he was deposing falsely at the instance of the Investigating officer.
(24) PW10 HC Pramod Kumar has deposed that as on date he is posted as SO to ACP Sultanpuri. Witness has brought record pertaining to the proceedings U/s 195 Cr. PC conducted by the then ACP Sh. Kumar Gyanesh. According to him the original complaint bearing No. 3017/ACP/Sultan Puri dated 09.09.2006 is Ex.PW10/A bearing the signatures of ACP Sh. Kumar Gyanesh at point A which he identify on the basis of official record maintained in their office. The copy of the dispatch entry is Ex.PW10/B. In his cross examination by Ld. Defence counsel, witness has admitted that as per the entry only three papers were dispatched to SI R. K. Mann. State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 19 of 47 (25) PW11 ASI Sushil has deposed that on 21.07.2006 he was posted as Head Constable at Police Station Mangol Puri and on that day he alongwith Ct. Ramphal and Ct. Rajvir were patrolling in the area. According to him at about 1.45 PM when they reached near Veer Kanwar Singh Marg, ST Road where one secret informer met them and told them that Ishwar @ Jaggi (since deceased) and Dinesh @ Aatish who are the dreaded criminals of the area were sitting on the road coming from the side of Mangol Puri Railway Station and were having arms and they might commit some robbery in the area. Witness has further deposed that thereafter he alongwith the other police staff and informer reach at the spot through the factory area where secret informer pointed out towards the accused persons who were sitting behind the bushes. According to him, he asked 34 public persons to join the proceedings after briefing them about the circumstances but none agreed, then he briefed the police official accompanying him and instructed them that he would come from the side of railway station and they should proceed from the side of the road where they were standing and would overpower both the accused. Witness has further deposed that when he came from the side of railway station and noticed two boys sitting in the bushes on this he exhorted them to come out after taking up their hands. According to him both the constables also instructed the accused persons to surrender and in the meantime one of the accused fired State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 20 of 47 upon him from his country made pistol. Witness has further deposed that he saved himself by lying on the ground and the said boy was overpowered by Ct. Ramphal. According to him the other boy tried to fire upon Ct. Rajbir who was overpowered by Ct. Rajbir by catching hold of his hand as a result of which he could not fire and Ct. Rajbir snatched the katta from his hands, thereafter the said boy pushed Ct. Rajbir and tried to flee by jumping over the broken wall but he ran after him after instructing Ct. Ramphal and Ct. Rajbir to hold the boy had fired upon him. Witness has further deposed that he ran after this boy and asked him to stop but the said boy threatened him and asked him not to come near him or else he would slash himself with a blade. "mere paas mat aana verna main apne aap ko blade maar loonga." despite which when he overpowered him the said boy slashed himself with a blade on his head and chest but he still managed to hold him and brought him out of the boundary wall. Witness has further deposed that he thereafter interrogated both the accused and on inquiry came to know the name of the first boy who had been apprehended by him as Ishwar @ Jaggi S/o Jaswant Singh R/o S8, Mangol Puri (since deceased) and the name of the second boy who had slashed himself as Dinesh @ Aatish S/o Ved Prakash R/o I53, Budh Vihar, Delhi. According to him the search of both the accused were carried out and from the right pocket of the pant of accused Ishwar @ Jaggi one live cartridge of 12 bore State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 21 of 47 was recovered. Witness has further deposed that the accused Dinesh @ Aatish was immediately sent to Sanjay Gandhi Hospital through Ct. Ramphal and he also instructed Ct. Ramphal to give the information at the police post at Sanjay Gandhi Hospital. (26) According to HC Sushil, in the meanwhile SI R. K. Mann alongwith Ct. Rakesh came to the spot and he handed over the Katta and the live cartridge recovered from the accused Ishwar @ Jaggi and also the katta recovered from the accused Dinesh @ Aatish. He has stated that thereafter SI R. K. Mann recorded his statement Ex.PW11/A. Witness has further deposed that he thereafter prepared the khakas of both the kattas as well as the cartridges after checking the same and he had found a used cartridge in the chamber of the katta which he had seized from Ishwar @ Jaggi. The khakas are Ex.PW4/A and Ex.PW4/C. According to him he thereafter converted both the fire arms alongwith the ammunitions into pullandas and sealed the same with the seal of RKM. According to him thereafter he prepared the seizure memos of the kattas which are Ex.PW4/B and Ex.PW4/D and SI R. K. Mann thereafter converted his statement into a rukka and handed over the same to Ct. Rajbir for taking the same to the police station for registration of the FIR. (27) Witness has further deposed that Ct. Rajbir returned after about one hour alongwith copy of FIR and original rukka which he handed over to SI R. K. Mann after which SI R. K. Mann arrested State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 22 of 47 both the accused vide memos Ex.PW4/E and Ex.PW4/F and conducted their personal search vide memo Ex.PW4/G and Ex.PW4/H. According to him both the accused were interrogated and their disclosure statements were recorded by SI R. K Mann vide Ex.PW4/I and Ex.PW4/J, thereafter they returned to the police station and the Investigating officer deposited the case property in the malkhana and recorded his statement. Witness has further deposed that he was thereafter sent alongwith Ct. Rajbir and Ishwar to Sanjay Gandhi Hospital for getting the medical examination of accused Ishwar @ Jaggi conducted and after the medical examination of the accused Ishwar conducted he was confined in the lock up. Witness has correctly identified the accused Dinesh @ Aatish in the court. (28) Witness has identified the case property i.e country made pistol having a body of brass and wooden butt and barrel of iron alongwith an empty cartridges as the same as recovered from the accused Dinesh @ Aatish which is Ex.P1 and cartridge Ex.P2. Witness has further identified country made pistol wooden strips on butt and is of iron alongwith two empty cartridges of red colour as the same as recovered from the accused Ishwar @ Jaggi. The katta Ex.P3 and the cartridge is Ex.P4.
(29) In leading questions put by Ld. APP for the State, witness has admitted that the date of incident was 20.07.2006 and has voluntarily added that his statement was recorded on intervening State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 23 of 47 night of 20/21.07.2006 (30) In his cross examination by Ld. Defence Counsel, witness has deposed that he recorded the departure entry vide DD No.14 at PP Sanjay Gandhi Hospital, when he left the police post for patrolling the area at 1.00PM. Witness has denied the suggestion that the place where the secret information was received is a thickly populated area and remains crowded through out the day. Witness has denied the suggestion that he was carrying his wireless set during the patrolling. Witness has admitted that he was carrying his mobile phone and Ct. Ramphal and Ct. Rajbir were also having their mobile phones. The witness further clarified that he was not sure about Ct. Ramphal and Ct. Rajbir. According to him he had not informed the SHO or any senior official at Police Station about the receipt of secret information received by him nor he converted the secret information into writing. Witness has admitted that both the accused were previously known to him and has voluntarily added that they were the Badmaash of the area. Witness has further deposed that he had never remained involved in the investigation of any of the cases against the accused. Witness has admitted that the place from where he had seen the accused he could also be visible and has voluntarily stated that the accused were sitting behind the bushes. Witness has admitted that they were all (himself, Ct. Rajbir and Ct. Ramphal) were in uniform. Witness has further deposed that before his State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 24 of 47 exhortation the accused had not seen them and therefore the question of their trying to run away on seeing them does not arise. Witness has denied the suggestion that he was deposing falsely to this effect and it was possible to accused to see them and run away from the alleged spot after noticing them in uniform. Witness has further deposed that he had not noticed the names and addresses of the 34 public persons who were asked to join the proceedings and he had not issued any notice in writing to those passers bye to join the proceedings. According to him the blade with which Dinesh @ Aatish had slashed himself had been thrown by him in the bushes and therefore could not be seized and he had tried to trace the said blade in the bushes but could not trace out the same. Witness has further deposed that the site plan was prepared by the Investigating officer at his instance and in his presence but he had not signed the same as the witness. According to him he had shown to the Investigating officer the bushes where the accused were initially sitting and also the bushes where the accused Dinesh @ Aatish had thrown the blade and he cannot tell whether the said bushes has been shown in the site plan by the Investigating officer but when the witness was shown the site plan Mark X, it did not indicate any bushes and the witness admitted that the site plan did not indicate the broken wall over which the accused had jumped. Witness denied the suggestion that the entire story has been concocted regarding the bushes behind which accused State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 25 of 47 were noticed and also about the bushes where the alleged blade was thrown by the accused Dinesh @ Aatish. Witness has admitted that after the accused Dinesh slashed himself, he was bleeding profusely. Witness has denied the suggestion that the blood from the wounds of accused Dinesh fell on the ground and voluntarily explained that it only soaked his clothes. According to him, his clothes did not contain any blood stains and voluntarily explained that he had saved himself. Witness has further deposed that he did not take the blood stained clothes of accused into possession. According to him, the Investigating Officer had not placed any mark of identification or mentioned the case particulars on the alleged seized kattas and they finally left the spot at about 8.30PM. Witness has further deposed that Ct. Rajbir took the rukka at about 5.30PM and returned back at the spot at about 6.30PM and no public persons had joined the proceeding after the apprehension of the accused persons. Witness has denied the suggestion that all the memos and documents were prepared in the police station later on. Witness has denied the suggestion that signatures of accused were taken on the blank papers and forms which were later on converted into various memos and documents including the alleged disclosure statements. (31) Witness has further deposed that the crime team was not called at the spot or that the Investigating Officer had not lifted any stains of gun powder from the hands and clothes of accused Ishwar State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 26 of 47 @ Jaggi. According to him the clothes of accused Ishwar @ Jaggi were not seized by the Investigating officer. Witness has denied the suggestion that he had not joined the investigation as deposed or that accused were not apprehended in the manner as deposed. Witness has further denied the suggestion that nothing was recovered from the possession of the accused or that the entire incident has been manipulated and concocted to falsely implicate the accused persons in the present case. Witness has denied the suggestion that the accused persons were wrongly confined and later falsely implicated in the present case.
(32) PW12 Kumar Gynaesh, Addl. DCP has deposed that on 09.09.2006 he was posted as ACP Sultanpuri and on that day SI R.K. Mann had put up the relevant record regarding the present FIR No. 496/06 pertaining to the accused Dinesh @ Atish and Ishwat @ Jaggi and after going through the statements of complainant and other witnesses, seizure memo and documents,he was satisfied that there was sufficient evidence against Dinesh @ Atish and Ishwar to prosecute both of them U/s 186/353/307/34 IPC and section 25/54/59 Arms Act. According to him he thereby accorded the consent to prosecute the said accused in respect of the above offences and the complaint U/s 195 Cr. P.C. is Ex.PW10/A. (33) In his cross examination by Ld. Defence Counsel, witness has deposed that SI R.K. Mann had filed an application before him State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 27 of 47 for according the sanction U/s 195 Cr. P.C against the accused Dinesh and Ishwar. According to him the entire case file was attached along with the application and has voluntarily added that the application specifically did not mention the details of the documents attached. Witness has further deposed that he was aware about the previous involvements of the accused and has voluntarily added that they were desperate criminals of the area. Witness has denied the suggestion that the report has been prepared by him on the asking of SI R.K. Mann or that he had accorded the sanction in a mechanical manner without application of mind or that he was deposing falsely. (34) PW13 SI R. K. Mann has deposed that on 20.07.2006 he was posted as Chowki Incharge, Sanjay Gandhi Hospital and on that day on receipt of DD No.16 which is Ex.PW13/A, he alongwith Ct. Rakesh reached at Mangol Puri Railway Station near Chaar Diwari / boundary wall. According to him there he met HC Sushil alongwith Ct. Rajbir alongwith accused Ishwal @ Jaggi and he handed over to him the accused Ishwar @ Jaggi alongwith one desi katta and one live cartridge and informed him that it was recovered from accused Ishwar @ Jaggi. Witness has further deposed that Ct. Rajbir also handed over to him a desi katta and told him that it was recovered from Dinesh @ Aatish who had been taken to Sanjay Gandhi Hospital by Ct. Ram Phal since at the time of his apprehension Dinesh slashed himself and he recorded the statement of HC Sushil State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 28 of 47 which is Ex.PW11/A. According to him, he thereafter prepared the khakas of both the kattas as well as the cartridges after checking the same and on checking he found a used cartridge in the chamber of the katta which HC Sushil had seized from Ishwar @ Jaggi. Witness has further deposed that in the meanwhile the accused Dinesh @ Aatish was brought back by Ct. Ramphal and the khakas are Ex.PW4/A and Ex.PW4/C. According to him, he thereafter converted both the fire arms alongwith the ammunitions into pullandas and sealed the same with the seal of RKM and also prepared the seizure memos of the kattas which are Ex.PW4/B and Ex.PW4/D, he thereafter thereafter converted the statement of HC Sushil into a rukka and handed over the same to Ct. Rajbir for taking the same to the police station for registration of the FIR. Witness has further deposed that in the meanwhile they tried to search for the blade with which Dinesh @ Aatish had slashed himself but could not locate the same. He thereafter proceeded to interrogate both the accused and in the meanwhile Ct. Rajbir returned to the spot alongwith copy of FIR and original rukka which he handed over to him after which he arrested both the accused vide memos Ex.PW4/E and Ex.PW4/F and conducted their personal search vide memo Ex.PW4/G and Ex.PW4/H. Witness has further deposed that he prepared the site plan at the instance of HC Sushil which site plan is State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 29 of 47 Ex.PW13/B. According to him both the accused were interrogated and their disclosure statements were recorded by him vide Ex.PW4/I and Ex.PW4/J he then sent accused Ishwar @ Jaggi to Sanjay Gandhi Hospital through HC Sushil and Ct. Rajbir for his medical examination. Witness has further deposed that thereafter they returned to the police station and the he deposited the case property in the malkhana and recorded the statements of the witnesses and relieved them. According to him after Ishwar was brought back to the police station, he was put in the lock up and both the accused persons were produced before the Ld. Illaqa Magistrate on the next day. Witness has further deposed that on 08.08.2006 he directed ASI Dinesh to take the exhibits from the MHC(M) and to deposit the same in the FSL, Rohini. According to the witness on 09.09.2006 he appeared before the ACP, Sultanpur Sh. Kumar Gyanesh and obtained the complaint U/s 195 Cr. P. C. which is Ex.PW10/A and after recording the statement of the various statements he prepared the charge sheet and filed the same in the court. Witness has correctly identified both the accused persons who were present in the court. He has also correctly identified the case property i.e. country made pistol having a body of brass and wooden butt and barrel of iron alongwith an empty cartridges as the same as recovered from the accused Dinesh @ Aatish which is Ex.P1 and cartridge is Ex.P2. Witness has also correctly identified country made pistol wooden State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 30 of 47 strips on butt and is of iron alongwith two empty cartridges of red colour as the same as recovered from the accused Ishwar @ Jaggi. The katta is Ex.P3 and the cartridge is Ex.P4.
(35) In his cross examination by Ld. Defence counsel, witness has deposed that he does not recollect if he had lodge his arrival / Wapsi entry in the police station. Witness has admitted that both the accused were previously known to him and has voluntarily added that they were Bad Characters of the area. According to him he had never remained involved in the investigation of any of the cases against the accused. Witness has further deposed that he had requested 34 persons to join the proceedings regarding arrest and search of the accused but they refused but he cannot tell the names and addresses of the public persons who had refused to join the proceedings and he did not give any notice in writing to the public persons to join the proceedings. He has deposed that the site plan was prepared by him at the instance of HC Sushil and he does not recollect if he had shown the bushes where the accused were initially sitting and also the bushes where the accused Dinesh @ Aatish had thrown the blade and the broken boundary wall from where Dinesh tried to escape but when shown the site plan Ex.PW13/B which did not indicate any bushes or broken wall, the witness admitted that he did not place any mark of identification. He has also admitted that he did not mention the case particulars on the alleged seized kattas and State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 31 of 47 has voluntarily added that he had only put the particulars on the pullanda. Witness has further deposed that they finally left the spot at about 9.00PM. Ct. Rajbir took the rukka at about 5.30PM and returned back at the spot at around 7.00 PM. Witness has denied the suggestion that all the memos and documents were prepared in the police station later on. He has denied the suggestion that the signatures of accused were taken on the blank papers and forms which were later on converted into various memos and documents including the alleged disclosure statements. According to the witness the crime team was not called at the spot and he did not lift any stains of gun powder from the hands and clothes of accused Ishwar @ Jaggi. According to him the clothes of accused Ishwar @ Jaggi and Dinesh were not seized by him and the uniform of HC Sushil was not having any blood stains therefore he did not seize the same. Witness has denied the suggestion that he had not joined the investigation as deposed or that accused were not apprehended in the manner as deposed. Witness has further denied the suggestion that nothing was recovered from the possession of the accused or that the entire incident has been manipulated and concocted to falsely implicate the accused persons in the present case. Witness has denied the suggestion that the accused persons were wrongly confined and later falsely implicated in the present case.
State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 32 of 47 Statement of Accused and Defence Evidence:
(36) After completing the prosecution evidence, statement of accused Dinesh @ Atish @ Sudhir was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied. According to him, he is innocent and has been falsely implicated by the police. He has stated that nothing was recovered from his possession and the alleged desi katta has been planted by the police to falsely implicate him. The accused has further stated that the police officials forcibly obtained his signatures on some blank papers which were later on converted into various memos including his disclosure statement.
FINDINGS:
(37) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae for the accused. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(38) In so far as the identity of the accused is concerned, at the very outset I may observe that both the accused Dinesh @ Atish and Ishwar @ Jaggi were BCs of the area and were previously known to the local police officials. During trial the accused Ishwar @ Jaggi State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 33 of 47 had expired and proceedings against him stand abetted. In so far as the accused Dinesh @ Atish @ Sudhir is concerned, he has been correctly identified by HC Rajbir (PW4), ASI Sushil (PW11) and IO / SI R. K. Maan (PW13), in the court. In this background, I hold that the identity of accused Dinesh @ Atish @ Sudhir stands established.
Allegations against the Accused:
(39) The case of the prosecution is that the accused Dinesh @ Atish and Iswhar @ Jaggi were the BCs of the area and local badmash. On 20.7.2006 a secret information was received by HC Sushil that two desperate criminals of the area were sitting on the road coming from the side of the Mangol Puri Railway Station having dangerous weapons and intended to commit some crime in the area. On receipt of this information, HC Rajbir (PW4), HC Sushil (PW11) and HC Ramphal reached the spot through the factory area side where the secret informer pointed towards both the accused who were sitting behind the bushes. HC Sushil (PW11) asked 2 to 3 passer byes to join the raiding party but none agreed. Thereafter without wasting time HC Rajbir (PW4) and HC Sushil (PW11) along with Ct. Ramphal proceeded through the road towards the boundary walls and HC Sushil (PW11) exhorted the accused persons to come out from behind the bushes after raising their hands in the air but in State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 34 of 47 the meantime the accused Ishwar @ Jaggi immediately took out a country made pistol and fired towards HC Sushil who saved himself by lying on the ground and at the same time the accused Ishwar @ Jaggi was overpowered by Ct. Ramphal. The second boy i.e. the accused Dinesh @ Atish @ Sudhir also took out a country made pistol and tired to fire at Ct. Rajbir but he was overpowered by Ct.
Rajbir by catching hold of his hand as a result of which he (accused Dinesh) could not fire and in the meantime Ct. Rajbir snatched the katta from his hand. Thereafter, accused Dinesh @ Atish pushed Ct. Rajbir and tried to flee by jumping over the broken boundary wall but ASI Sushil ran after him (Dinesh @ Atish) and exhorted to stop but he (Dinesh @ Atish) threatened him (ASI Sushil) not to come near him or else he would slash himself with a blade by saying mere pass mat aana verna me apne aap ko blade maar loonga but despite that ASI Sushil manged to apprehend him but by that time he (Dinesh @ Atish) slashed himself with a blade on his head and chest. On formal search, one country made pistol and one more live cartridge of 12 bore was recovered from the possession of accused Ishwar @ Jaggi whereas one country pistol and live cartridge was recovered from the accused Dinesh @ Atish from which pistol he could not fire as it was snatched by HC Rajbir. Thereafter, the accused Dinesh @ Atish was taken to Sanjay Gandhi Memorial Hospital by HC Ramphal. In this regard, the testimony of HC Rajbir State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 35 of 47 (PW4) and HC Sushil (now ASI) (PW11) is most relevant. They both have corroborated each other on all material aspects. (40) Ld. Amicus Curiae for the accused has vehemently argued that the entire story has been created by the police only to justify the illegal detention of the accused Dinesh @ Atish who was already detained by the police. He has argued that the accused had been subjected to custodial torture and in order to save themselves the police officials have created the entire incident. (41) I have considered the submissions made before me. The arguments put forwarded by the Ld. Amicus Curiae is devoid of any merit. The MLC of the accused Dinesh @ Atish which is Ex.PW1/A shows that all the injuries are simple in nature and have been caused by sharp edged weapon. Though in his crossexamination, Dr. Vinay Kumar (PW1) has stated that there is a possibility that the patient might behold by someone and other persons inflicted injuries on him, but this does not appears to be probable and correct. The nature of injuries, depth of the injuries and the places where it was inflicted, all confirms that they are self inflicted and could not have been made by any second person, as alleged by the Ld. Amicus Curiae. The accused is a desperate criminal with large number of criminal cases against him and is BC of the area.
(42) The combined reading of the testimonies of HC Rajbir (PW4) and ASI Sushil (PW11) shows that they have corroborated State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 36 of 47 each other on all material aspects. Though it is evident that no public person was joined at the time of the apprehension of the accused, despite prior information, yet the explanation forthcoming from the witnesses is satisfactory. The police witnesses have duly explained that before reaching the spot they had asked 23 public persons to join the proceedings but none agreed. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State, 2000 VIII AD (Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State, AIR 1989 SC 696, where it was held by the Hon'ble Court that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. In the present case, there is no reason to disbelieve testimony State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 37 of 47 of police officials regarding recovery of the fire arm at the spot of incident along with the live cartridge from the possession of accused Dinesh @ Atish. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khimavs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State, 2010 III AD (Delhi) 133.
(43) Applying the aforesaid settled law to the present case it is evident that both the accused were the Bad Characters of the area and it is natural that no person would involve himself in any proceedings concerning to the accused who are desperate criminal and hence there is no reason to doubt the version given by HC Rajbir (PW4) and ASI Sushil (PW11). The fact that HC Sushil, Ct. Rajbir and Ct. Ramphal were on patrolling duty has been duly established as evident from the departure entry made at Sl. No. 14 on 20.7.2006 State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 38 of 47 copy of which is Ex.PW3/A and the accused has failed to bring on record any evidence to controvert the same same. Though, the accused in his statement under Section 313 Cr.PC has stated that he has been falsely implicated, yet he has failed to examine any witness nor he has been able to explain the injuries received by him. In view of the aforesaid, I hereby hold that it stands established that after the accused were challenged by HC Rajbir (PW4), ASI Sushil (PW11) and Ct. Ramphal who were on official duty, the accused Dinesh @ Atish and Ishwar @ Jaggi obstructed them while Dinesh @ Atish tried to fire towards HC Rajbir though before he could fire HC Rajbir snatched the fire arm from his had. Further, the recovery of the fire arm at the spot of incident along with the live cartridge from the possession of accused Dinesh @ Atish has been duly proved. It also stands established that the accused Dinesh @ Atish showed this firearm to HC Sushil (now ASI) in order to threaten him and also to prevent him from discharging his official duties. However, it does not stand established that he (Dines @ Atish) had fired upon HC Sushil in order to kill him, though the recovery of the fire arm which the accused had used for showing to HC Sushil for threatening him stands established.
(44) In so far as the charges under Section 307 Indian Penal Code against the Dinesh @ Atish is concerned, the testimony of HC Rajbir (PW4) is completely vague. He has simply stated that the State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 39 of 47 accused tried to fire towards his side. From the evidence on record, it only stands established that the accused Dinesh @ Atish had a fire arm in his possession which he showed to HC Sushil but before he could fire from it, the same was snatched from his hand by HC Sushil. He has not specified what was the direction on which the accused had pointed the fire arm or towards which part of his body. It is only the use of this fire arm by showing it for purposes of threatening HC Sushil which stands established. Therefore, under the given circumstances, benefit of doubt is being given to the accused Dinesh @ Atish who is liable to be acquitted of the charges under Section 307 Indian Penal Code.
(45) Therefore, I hold that the accused Dinesh @ Atish is liable for the offence under Section 186/353 read with Section 34 Indian Penal Code and also under Section 25/27/54/59 Arms Act. Complaint under Section 195 Cr.PC:
(46) The Sanction under Section 195 Cr.PC which is Ex.PW10/A has been duly proved by PW12 Kumar Gyanesh, Addl.
DCP who has testified that on 9.9.2006 he was posted as ACP Sultanpuri and after applying his mind and after going through the relevant records containing FIR, statement of complainant and other witnesses, he was satisfied that there was sufficient material to prosecute the accused Dinesh @ Atish and Ishwar @ Jaggi for the State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 40 of 47 offences under Section 186/353/307/34 and Section 25/54/59 Arms Act, and therefore he filed the complaint u/s 195 Cr.PC against them. He has in his crossexamination clarified that he was already aware about the previous involvement of both the accused they being the desperate criminals of the area and he has filed the complaint on the basis of the record placed before him. This being the background, I am satisfied that complaint has been filed by ACP / competent officer after due application of mind in accordance with law. Sanction under Section 39 Arms Act:
(47) The Sanction under Section 39 Arms Act to prosecute the accused Dinesh @ Atish has been accorded by the competent officer the then Addl. DCP Sh. B. K. Singh who has been examined as PW8.
He has proved the Sanction under Section 39 Arms Act accorded by him which is Ex.PW8/A after due application of mind. Medical Evidence:
(48) Dr. Binay Kumar (PW1) from Sanjay Gandhi Memorial Hospital has proved the MLC of the accused Dinesh @ Atish Ex.PW1/A showing the following injuries:
Two fresh incised wound of 4cm x 1cm x 0.5cm and 2.5 cm x 0.25 cm x .5 cm over flexor aspect of right wrist joint.
State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 41 of 47
Three fresh incised wound over the left fore arm of 4 cm x 0.75 cm x .5cm 4cm x 0.25 cm and 4cm x 0.2cm x0.25 cm.
Four fresh incised wound of varying length x .25cm x .25 cm over front of chest.
Four fresh incised wound of 5cm x .25 cm x .25 cm x.
25 cm over occipital region, 5cm x 0.25 cm x 0.25 cm. Over the right temporo parital region of scalp. Two fresh incise wound of 7cm x .5cm x.5cm, 8cm x 2.5 cm x 2.5 cm over left fronto parital region.
Superficial incised wound (horizontally placed) over the abdomen.
(49) The perusal of the MLC shows that the accused Dinesh @ Atish had been brought to the hospital on 20.7.2006 at about 2:45 PM by Ct. Ramphal with alleged history of self inflicted wounds with blade as told by the accused himself. The injures have been opined to be simple in nature. PW1 Dr. Binay Kumar has himself proved the MLC and has deposed that on the basis of the nature, size, place and depth of the injures, they appeared to be self inflicted. Even this court has observed that the place, depth and nature of the injuries indicate that they are all selfinflicted and not inflicted by State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 42 of 47 another person. Had the accused been in Police Custody, it is not possible for him to have been in possession of a blade or to inflict these injuries. It is this factum of selfinflicted injuries on body of the accused which lends credibility to the story put forward by the prosecution particularly keeping in view the criminal background of accused Dinesh @ Atish.
FSL Report:
(50) The FSL report Ex.PW5/A has been proved by PW5 V. R. Anand, Sr. Scientific Officer (Ballistic) who has deposed that the 8 MM / .315 inch cartridge was live and can be fired through .315 inch bore fire arm. He has further proved that .315 inch bore pistol Ex.P1 recovered from the accused Dinesh @ Atish was a fire arm and the 8 MM / .315 inch cartridge was ammunition, as defined in Arms Act, and the test fire was conducted successfully establishing that it was in working order. This being the background, I hold that the accused Dinesh @ Atish is liable for the offence under Section 25/27/54/59 Arms Act.
FINAL CONCLUSION:
(51) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 43 of 47 which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(52) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused Dinesh @ Atish @ Sudhir stands established and proved. (coaccused Ishwar @ Jaggi already expired). It stands established that on the date of incident i.e. 20.7.2006 a secret information was received by HC Sushil (PW11) that two desperate criminals of the area were sitting on the road State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 44 of 47 coming from the side of the Mangol Puri Railway Station having dangerous weapons and intended to commit some crime in the area. It stands established that on receipt of this information, HC Rajbir (PW4), HC Sushil (PW11) and HC Ramphal reached the spot where the secret informer pointed towards both the accused who were sitting behind the bushes. It also stands proved that on seeing the both the accused, HC Sushil (PW11) challenged them to come out from behind the bushes but in the meantime the accused Ishwar @ Jaggi took out a country made pistol and fired towards HC Sushil who saved himself by lying on the ground and at the same time the accused Ishwar @ Jaggi was overpowered by Ct. Ramphal. It also stands established that the accused Dinesh @ Atish @ Sudhir also took out a country made pistol and tired to fire at Ct. Rajbir but in the meantime he was overpowered by Ct. Rajbir by catching hold of his hand as a result of which the accused Dinesh could not fire but the accused Dinesh @ Atish tried to flee from the spot by jumping over the broken wall. It also sands established that in the meantime ASI Sushil ran after him and asked him to stop but the accused Dinesh @ Atish threatened ASI Sushil not to come near him or else he would slashed himself with a blade by saying mere pass mat aana verna me apne aap ko blade maar loonga and thereafter slashed himself with a blade on his head and chest before he could be apprehended by HC Sushil. It stands proved that one country pistol and live State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 45 of 47 cartridge was recovered from the accused Dinesh @ Atish. (53) The intention and knowledge as contemplated under the provisions of Section 299 and 300 Indian Penal Code are not made out and hence I hold that the prosecution has miserably failed to prove and substantiate the necessary ingredients of the offence under Section 307 Indian Penal Code against the accused Dinesh @ Atish Sudhir. Further, the use of firearm i.e. country made pistol by the HC (ASI) Sushil by the accused Dinesh @ Atish has not been proved beyond doubt but the fact that the accused Dinesh @ Atish was in possession of this fire arm which he showed to HC Sushil with which he threatened him in order to prevent him from discharging his official duties, stands established.
(54) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial and forensic evidence on record and the witnesses of the prosecution have been State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 46 of 47 able to built up a continuous link.
(55) In view of the above, I hereby hold that in so far as the allegations under Section 307 Indian Penal Code are concerned, the same has not been proved by the prosecution beyond reasonable doubt for which benefit of doubt is being given to the accused Dinesh @ Atish @ Sudhir who is hereby acquitted of the same. However, the prosecution has been able to prove and substantiate the allegations against the accused Dinesh @ Atish of having voluntarily obstructed the police officials i.e. public servants namely HC Rajbir, ASI Sushil and Ct. Ramphal while discharging their public duties; having used criminal force on the police party in the execution of their duty or prevent or deter them from the lawful discharging their duties as public servants and also of having firearms and hence the accused Dinesh @ Atish @ Sudhir is hereby held guilty of the offence under Section 186 read with 353 Indian Penal Code and also under Section 25/27/54/59 of Arms Act, for which he is accordingly convicted.
(56) Be listed for arguments on sentence on 6.7.2012.
Announced in the open court (Dr. KAMINI LAU) Dated: 05.07.2012 ASJ (NW)II: ROHINI State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 47 of 47 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 67/2011 Unique Case ID: 02404R0286812006 State Vs. Dinesh @ Atish @ Sudhir S/o Ved Prakash R/o J1/53, Budh Vihar, PhaseI, Sultanpuri, Delhi. (Convicted) FIR No. : 496/2006 Police Station : Mangolpuri Under Section : 186/353/307/34 IPC 25/27/54/59 Arms Act. Date of conviction : 05.07.2012 Arguments heard on : 06.07.2012 Date of Sentence : 07.07.2012 APPEARANCE: Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State. Convict Dinesh @ Atish in Judicial Custody with Sh.Aseem Bhardwaj, Advocate/ Amicus Curiae. ORDER ON SENTENCE:
Vide separate detailed judgment dated 05.07.2012, the convict Dinesh @ Atish @ Sudhir has been held guilty for the offence under Section 186 read with 353 Indian Penal Code and State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 48 of 47 also under Section 25/27/54/59 of Arms Act. He has been acquitted of the charges under Section 307 Indian Penal Code.
As per the allegations, on 20.7.2006 at about 2:15 PM near Mangol Puri, Railway Station, by the side of boundary wall, the convict Dinesh @ Atish @ Sudhir along with his associate Ishwar @ Jaggi (since expired), in furtherance of their common intention, voluntarily obstructed HC Sushil Kumar, Ct. Rajbir Singh and Ct. Ramphal, in discharge of their public functions. It is alleged that both Dinesh @ Atish @ Sudhir and Ishwar @ Jaggi, used criminal force upon HC Sushil Kumar, Ct. Rajbir Singh and Ct. Ramphal, with intention to prevent them from discharging their official duties as public servants. It is further alleged that on 20.7.2006 at about 2:15 PM at the aforesaid place the convict Dinesh @ Atish @ Sudhir fired at HC Sushil Kumar by a country made pistol, which pistol was recovered from his possession without any permit or license. It is also alleged that on 20.7.2006 at about 2:15 PM at the aforesaid place the accused Ishwar @ Jaggi (since expired) also fired at Ct. Rajbir by country made pistol which pistol was recovered from his possession without any permit or license.
On the basis of the testimonies of the various witnesses examined by the prosecution, particularly Ct. Rajbir Singh (PW4) and ASI Sushil (PW11), vide separate detailed judgment dated 05.07.2012, the convict Dinesh @ Atish @ Sudhir has been held State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 49 of 47 guilty for the offence under Section 186 read with 353 Indian Penal Code and also under Section 25/27/54/59 of Arms Act, for threatening HC Sushil with a fire arm. He has been acquitted of the charges under Section 307 Indian Penal Code.
Heard arguments on the point of sentence. The convict Dinesh @ Atish @ Sudhir is 25 years old, unmarried, 7th pass a driver by profession. He is having a family comprising of aged father who is doing a private job, mother who is house wife and two younger brothers. He has already remained in judicial custody for Nine Months and Nine Days. Apart from the present case, he is also involved in other cases whose details are as under:
1. FIR No. 386/02 under Section 457/380/411 IPC, Police Station : Mangolpuri.
2. FIR No. 130/02 under Section 457/380/411 IPC, Police Station : Mangolpuri.
3. FIR No. 5/03 under Section 25/54/59 Arms Act and Section 411/34 IPC, Police Station : Vikaspuri.
4. FIR No. 45/02 under Section 25/54/59 Arms Act, Police Station : Mangolpuri.
5. FIR No. 666/03 under Section 399/402 IPC, Police Station : Mangolpuri.
6. FIR No. 685/03 under Section 25/54/59 Arms Act and Section 307/34 IPC, Police Station: Mangolpuri. State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 50 of 47
7. FIR No. 335/03 under Section 307 IPC, Police Station : Mangolpuri.
8. FIR No. 418/03 under Section 349/397/34 IPC, Police Station : Mangolpuri.
9. FIR No. 655//03 under Section 307/34 IPC, Police Station : Mangolpuri.
10. FIR No. 652/04 under Section 379/411/34, Police Station : Mangolpuri.
11. FIR No. 130/05 under Section 25/54/59 Arms Act, Police Station : Saraswati Vihar.
12. FIR No. 66/05 under Section 398/407 IPC, Police Station : Brahmpuri, Meerut, U.P.
13. FIR No. 67/05 under Section 25/54/59 Arms Act, Police Station : Brahmpuri, Meerut, U.P.
14. FIR No. 167/05 under Section 307/34 IPC, Police Station : Mangolpuri.
15. FIR No. 175/06 under Section 25/54/59 Arms Act, Police Station : Mangolpuri.
16. FIR No. 431/2006, under Section 307/120B/34 IPC Police Station Mangolpuri.
Ld. Amicus Curiae has vehemently argued that keeping in view the young age of the convict any harsh view would be detrimental not only to the convict but also the his family. He State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 51 of 47 requests that a lenient view be taken against the convict. On the other hand the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convict keeping in view the seriousness of the allegations involved. He has argued that the convict is a habitual offender, involved in large number of cases and having no respect for law and therefore does not deserve any leniency.
I have considered the rival contentions. Keeping in view the previous criminal record of the convict, it is evident that he is a habitual criminals having a large number of criminal involvements against him. It is writ large that the convict does not hesitate to take law into hand and threatens the law enforcement agencies with self injury and is hence not entitled to any leniency. I hold that undue sympathy shown to the convict to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society. I, therefore, award the following sentence to the convict Dinesh @ Atish @ Sudhir:
(i) For the offence under Section 186 Indian Penal Code, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Three Months.
(ii) For the offence under Section 353 Indian Penal Code, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Two Years and fine to the tune of State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 52 of 47 Rs. 1,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
(iii) For the offence under Section 25/27/54/59 Arms Act, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Four Years and fine to the tune of Rs. 5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
All sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost and another be attached along with his jail warrant. File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 07.07.2012 ASJ (NW)II: ROHINI State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 53 of 47 State Vs. Dinesh @ Atish & Anr. FIR No. 496/2006 PS Mangolpuri 7.7.2012 Present: Addl. PP for the State. Convict Dinesh @ Atish in JC with Sh. Aseem Bhardwaj, Advocate / Amicus Curiae.
Vide separate detailed order, the convict Dinesh @ Atish @ Sudhir has been sentenced as follows:
(i) For the offence under Section 186 Indian Penal Code, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Three Months.
(ii) For the offence under Section 353 Indian Penal Code, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Two Years and fine to the tune of Rs. 1,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.
(iii) For the offence under Section 25/27/54/59 Arms Act, the convict Dinesh @ Atish @ Sudhir is sentenced to Rigorous Imprisonment for a period of Four Years and fine to the tune of Rs. 5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month. State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 54 of 47
All sentences shall run concurrently. Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost and another be attached along with his jail warrant.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ/NWII, Rohini/7.7.2012 State Vs. Dinesh @ Atish @ Sudhir, FIR No. 496/06, PS Mangolpuri Page 55 of 47