Delhi District Court
Chhotu & Ors vs . State Of Maharashtra, Wherein It Is ... on 7 March, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 06A/12/12
Unique Identification No. 02404R0047642012
State
Versus
Pravesh @ Pinku @ Suraj
Son of Sh. Ajab Singh
R/o Vill Rithani, PS Partopur
District Meerut, U.P.
FIR No. 85/01
PS -Sultanpuri
U/s. 174A of IPC.
Date of Decision: 06/03/2012
Date of Order on Sentence: 07/03/2012
ORDER ON CHARGE
07/03/2012
Present: Ld APP for State
Convict in person with counsel.
Heard on the point of sentence.
Ld defence counsel has contended that convict is a poor person, aged
about 29 years old. He is married and is having wife and old aged mother to
support. He is employed in mobile network tower and having a meagre income.
SC No. 06A/12 1/14
Ld defence counsel has further contended that convict remained in
custody from 03/03/01 to 27/04/2001, 24/12/2002 to 01/12/2006 and from
30/01/12 till today i.e. about four years and two months and eight days. so a
lenient view may be taken.
Convict Parvesh has been convicted for offence u/s 174A of IPC,
which is punishable with imprisonment, which may extent to three years or with
fine or with both.
Accordingly, under such facts and circumstances, after considering the
age, antecedents and Character of the convict, sentence of three years SI is
imposed on him u/s 174A of IPC.
Benefit of section 428 of Cr.PC be given to convict.
.
Announced in Open Court on (Virender Kumar Goyal)
dated 7th of March , 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
SC No. 06A/12 2/14
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 06A/12/12
Unique Identification No. 02404R0047642012
State
Versus
Pravesh @ Pinku @ Suraj
Son of Sh. Ajab Singh
R/o Vill Rithani, PS Partopur
District Meerut, U.P.
FIR No. 85/01
PS -Sultanpuri
U/s. 307/34 of IPC & 25 of Arms Act
Date of institution of the case: 09/02/2012
Date of Decision: 06/03/2012
JUDGMENT
In brief, case of prosecution is that accused Pravesh, son of Ajab Singh was declared proclaimed offender in case FIR No. 85/01, U/s. 307/34 of IPC of PS Sultanpuri, on 23/03/2009.
Accused was arrested U/s. 41.1 Cr.P.C and was produced before learned Metropolitan Magistrate on 30/01/2012.
As case FIR No. 85/01 was already committed to the Court of Session, accordingly, Kalandara was also committed to the Court of Session on 30/01/2012 and was received on 09/02/2012.
SC No. 06A/12 3/14
Arguments heard on charge for offence U/s. 174A of IPC. Charge U/s. 174A of IPC is framed, to which, the accused pleaded guilty and has stated that he does not want to claim trial.
I have heard Ld. APP for State and learned defence counsel for accused.
Accused Pravesh remained absent in case FIR No. 85/01 from 22/02/2008. NBWs were issued, which were received back unexecuted with the report that accused had left the given address. Thereafter, process U/s. 82/83 Cr.P.C. was issued and proclamation was also published in the newspaper. After recording the statement of process server, accused Pravesh was declared proclaimed offender on 23/03/2009.
Proceedings of NBWs and process U/s. 82/83 Cr.P.C. have not been challenged by the accused in any manner. Rather, he has admitted his guilt. Accordingly, in view of plea of guilt of accused, he is convicted for the offence U/s. 174A of IPC.
Announced in Open Court on (Virender Kumar Goyal)
dated 6th of March , 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
SC No. 06A/12 4/14
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 06A/12
Unique Identification No. 02404R0047642012
State
Versus
1. Parvesh @ Pinku @ Suraj
S/o Sh. Ajab Singh
R/o Village Rithani S Parta Pur
District Meerut UP. And
R/o Deep Vihar, Vaishali, 115/C, Delhi.
2. Manoj @ Vinod
S/o Shiv Prasad
R/o D4/317, Sultanuri, Delhi
FIR No. 85/01
PS - Sultan Puri
U/s. 307/34 of IPC & 25. Arms Act.
Date of institution of the case: 09/02/2012
Arguments heard on: 21/02/2012
Date of reservation of order: 29/02/2012
Date of Decision: 07/02/2012
JUDGMENT
This case was registered on the statement of one Vikas u/s 307/34 of SC No. 06A/12 5/14 IPC and u/s 25 and 27 of Arms Act.
During investigation, rough site plan of place of occurrence was prepared. Knife and live cartridges alongwith clothes, which were left behind by accused persons were taken into possession. Photographs of place of occurrence were conducted and crime team report was collected. MLC of injured was also collected. Accused Manoj and Parvesh were arrested in some other case, wherein they made disclosure statement, of this case and were arrested in this case. They pointed out the place of occurrence. Accused both refused to join the TIP.
On completion of investigation, charge sheet was filed u/s 307/34 of IPC and u/s 25 and 27 of Arms Act against accused Manoj and Parvesh, which was committed to the Court of Sessions on 26/07/2003 and was received on 29/08/2003. Charge was framed against accused Parvesh u/s 304/34 of IPC and u/s 25 of Arms Act, to which he pleaded not guilty and claimed trial. Accused Manoj was declared proclaimed offender during proceedings.
To prove its case, prosecution has examined PW1 to PW13 in all and on completion of evidence of prosecution, statement of accused was recorded, wherein he has denied the case of prosecution and has stated that he was called in the PS Sultanpuri by police officials and shown to some public persons and he was planted in this case. He does not know anything about the case and has been falsely implicated, in this case.
I have heard Ld APP for State and counsel for accused and have gone through the material facts placed on record and evidence adduced.
This case was registered on the statement of one Vikas, who has SC No. 06A/12 6/14 stated that he was working in Sunrise Communication as a helper. On 22/01/01, at about 7.00 pm, he was present at the shop with Jitender Kumar and another helper Vishal. At that time, three boys came aged about 2022 years and one of them stated that they were sent by one Dharampal from karala and asked to insert the card in the mobile phone . All these boys were looking like bad elements from their appearances. Earlier also small thefts had taken place in the shop, so complainant become suspicious about those boys and went to owner Jitender Kumar and told him that he was suspecting those boys and asked him to engage those boys in talks and meanwhile he will inform the police.
Complainant Vikas has further told that as and when he started moving from the shop, those boys became suspicious and they started moving from the shop. Jitender tried to stop them, but two of them caught hold Jitender and third boy stabbed Jitender with a knife. When complainant Vikas tried to intervene, then one of the boy took out a katta and pointed the same on him and complainant snatched it immediately, due to which katta opened and cartridges from the same fell down. Said person hit the handle of katta on the head of Vikas, so he become unconscious. Meanwhile another helper informed the police and those three boys fled away from there. At that time, Jitender caught hold one of them, but he could only be able to caught hold the upper clothes of the said boy.
Before the court, complainant Vikas has been examined as PW5. He has deposed the same facts as of the statement that those boys came at the shop, one of the person stated that they had come from village Karala sent by one Dharampal for the purpose of getting a simcard. PW5 has identified the accused SC No. 06A/12 7/14 Parvesh as one of those boys, who entered in the shop. PW5 Vikas has further deposed the same facts as told to the police and has identified his signature on the statement Ex.PW5/A. Ld defence counsel has contended that in the cross examination, PW5 has contradicted with his statement Ex.PW5/A as in his statement given to the police, PW5 has stated that Vishal slipped away to inform the police, whereas in the cross examination, he has stated that Vishal had run away from the spot due to fear. They raised alarm and when he regained consciousness, he saw 67 persons collected at the spot.
Ld defence counsel has further contended that identity of the accused is also in dispute because PW5 Vikas has stated in the cross examination that before 17/03/2001, they came to know that police officials had apprehended the accused of this case, so they reached to the Court to identify them. Ld defence counsel has further contended that PW5 Vikas has not identify accused Parvesh before the court as the person, who had stabbed Jitender with a knife nor as a person, who took out katta, but has stated that accused Parvesh caught hold Jitender at the time of incident , so merely holding Jitender is not attributing any offence against Parvesh.
PW3 is Jitender Mathur. He has stated that he was dealing in business of mobile phones and running a shop by name of Sunrise communication at Kanjhawala road, Begum Pur. On 22/01/01, at about 7.00 pm, he was sitting at his shop. Vikas and Vishal, his employees were also present at the shop. At that time, three boys aged about 20 years entered the shop. The said persons appeared to be shady and not genuine customers. Vikas told him to keep the SC No. 06A/12 8/14 aforesaid three boys busy in conversation and he shall inform the police. As Vikas proceeded to go from the shop, the aforesaid three persons got cautious. They tried to stop the aforesaid three persons. PW3 has identified accused Parvesh, as one of those boys. PW3 further told that accused Parvesh held him and one of the other accused had taken out a knife and the third person had taken otu a country made pistol. There was a scuffle. Accused having the possession of country made pistol fired towards Vikas. When he was caught by accused Parvesh, he was inflicted with stab injury with a knife in possession. They tried to catch the person in possession of knife, but he was given knife blows by him. He had received stab injuries beneath the eye on face and other parts of the body. The shirt of the accused, whom he tried to catch came in his hand. Other clothes of the accused had also come off in the scuffle.
PW3 Jitender has identified the jacket as Ex.P1, blue shirt as Ex.P2, woolen sweater (Jarsi) as Ex.P3 and piece of vest as Ex.P4, before the court belonging to the accused persons.
Ld defence counsel has contended that PW5 has not stated that fire was made, but PW3 has stated that fired was made, so contradiction is material one and witnesses cannot be relied upon, in any manner.
In the cross examination PW3 Jitender Mathur has stated that he came to know that name of the accused persons, when accused was shown to him in the court on 17/03/2001.
Ld defence counsel has further contended that PW3 has stated in the cross examination that he did not raise alarm and public persons had not gathered at the spot, which shows that no such incident had taken place and if knife and SC No. 06A/12 9/14 katta were taken out by those persons who came, then it is highly improbable that no alarm was raised by them.
Ld defence counsel has further contended that in the cross examination, PW3 Jitender had voluntarily stated that he had suffered 16 injuries on his body wherein according to the statement Ex. PW5/Aof the Vikas, one of the boy had stabbed Jitender Mathur, so this contradiction is also material one as neither Vikas has stated to the police nor before the court that several knife blows were given to Jitender Mathur, owner of the shop.
Another witness is PW10 Vishal . He has also deposed the same facts as of other witnesses, but has exaggerated the facts and has contradicted in some manner to the extent that the person, who was having country made pistol, pointed the same on the tample of Jitender. This fact has not been deposed by PW3 Jitender Mathur or PW5 Vikas. PW10 Vishal has further deposed that other person who was having open knife extended threat to kill Jitender and the other person, who was empty hand armful Jitender from behind. These facts have also not been deposed either by PW3 or by PW5.
PW10 has also deposed that the person having knife in his hand caused injuries to Jitender with an intention to kill, which is also not deposed by PW3 or by PW5. PW10 has further deposed that he had seen blood oozing out from the injuries sustained by Jitender on his face, chest, belly etc, which is also not deposed by PW3 or PW5. Blood stains clothes have not been taken into possession of injured Jitender nor any blood was lifted from the spot. So there is no corroboration to this fact that blood started oozing out from the injuries sustained by Jitender .
SC No. 06A/12 10/14
PW10 Vishal has further stated that neither his statement was recorded by police nor his signatures were obtained on any paper, so he has been cross examined by Ld APP wherein he has denied the suggestion of Ld APP that accused Parvesh present in the Court is the same person, who had caught hold Jitender and was having open knife in his hand, which had fallen on floor during scuffle and these facts had been stated by him before the police. PW10 has also been confronted with his statement Ex.PW10/A. PW10 has also identified the clothes of one of the accused, knife, live cartridges etc as Ex.P1 to P6 in all.
Even the suggestion given to PW10 Vishal by Ld APP contradicted to the case of prosecution because PW5 Vikas neither told to the police nor PW3 and PW5 deposed before the Court that accused Parvesh was also having knife in his possession, when he caught hold the Jitender, which had fallen on floor during scuffle, so the contradiction is material one, which rendering the witness to be unreliable.
Ld defence counsel has contended that in view of the deposition of PW3 Jitender Mathur, PW5 Vikas and PW10 Vishal, identity of accused Parvesh is doubtful and the same has not been proved beyond reasonable doubts as PW10 has not supported the case of prosecution regarding the identity of accused Parvesh as the same person, who had caught hold PW3 Jitender from behind at the time of incident.
PW7 is Surender Mathur. He has deposed that on 21/02/2001, he was present at his shop, when he came to know that his uncle's son Jitender was stabbed. He reached there and took him to Braham Shakti hospital and got him SC No. 06A/12 11/14 admitted there. He was referred to Jaipur Golden Hospital from there, after given first aid. PW7 is a witness of formal nature.
According to PW11 SI Pradeep Kumar, on 22/01/2001, he was posted at PS Sultanpuri. On that day, copy of DD no.67B was assigned to him by the duty officer, copy of which is Ex.PW11/A and on receipt of the same, he alongwith Ct Ramesh Kumar went to Shop of Sunrise Communication, Begumpur and noticed some blood spots lying on the floor of the shop, one live cartridge was also lying on the chair, one buttondar Knife was also lying near the gate of the shop and besides the above, some clothes having blood stains were also lying in front of the shop. They came to know that injured was taken to Braham Shakti Hospital at Pooth Kalan so he left PW6 Ct Ramesh at the spot to guard the scene of crime. Thereafter, he went to Braham Shakti hospital and collected the MLC of the injured Jitender Mathur, who was admitted there and was reported unfit for the statement.
PW11 has further deposed that one witness Vikas was found present in the hospital. He recorded his statement Ex.PW5/A, on which he made his endorsement Ex.PW11/B and sent the rukka to PS for registration of the case through Ct Kuldeep, who had arrived in the hospital with the injured. PW11 has further deposed that from the hospital, he reached at the spot and inspected the spot and got the same photographed. Crime team was also summoned on the spot and they inspected the scene of crime. Dog squad had also accompanied the crime team and they also got the spot smelled by the dog but no lead was provided by the dog.
PW11 has further deposed that thereafter he prepared the site plan SC No. 06A/12 12/14 Ex.PW11/C. In the mean time Ct Kuldeep reached at the spot alongwith rukka and copy of FIR and handed over the same to him. He prepared the sketch of knife vide Ex.PW11/D and sealed in a parcel with the seal of PK. He also lifted the live cartridges and sealed the same with the seal of PK. The blood stained clothes were also sealed by him in a parcel with the seal of PK and all these articles were taken into possession vide memo Ex.PW6/A. PW11 has further identified one jacket as Ex.P1, one blue shirt as Ex.P2, one woolen jersy as Ex.P3, and one vest Ex.P4, buttondar knife as Ex.P5 and live cartridges as Ex.P6.
PW1 is HC Jai Bhagwan Sharma. He has stated that on 22/01/01, he was posted as Duty Officer at PS Sultanpuri from 4.00 pm to 12.00 midnight and at about 9.45 pm, he received rukka from Ct Kuldeep, which was sent by PW11 SI Pradeep and on the basis of the same, he registered the FIR of this case. PW1 has also produced the original FIR register, copy of which is Ex.PW1/A. This witness has not been cross examined by Ld defence counsel, in any manner. So, his testimony is unrebutted and unshaken.
PW2 has also deposed the same facts as of PW11 and has stated that he had handed over the MLC of the injured to the IO, who recorded statement of injured Jitender and made his endorsement and prepared rukka. IO handed over the rukka to him for registration of the case at PS Sultanpuri and he accordingly reached at the PS and after getting registered the case, came back at the spot and handed over the copy of FIR and rukka to IO.
Ld defence counsel has further contended that both PW2 and PW11 have contradicted each other as PW11 has stated that rukka was prepared on the SC No. 06A/12 13/14 statement of Vikas, whereas PW2 has stated that injured Jitender gave his statement and rukka was prepared on his statement, so the investigation seems to be tainted one and it is doubtful whether the rukka was taken by PW2 Ct Kuldeep Singh from the hospital for getting registered the case.
According to the cross of PW2 Kuldeep, he received the information about the incident through public and he reached at the spot and took the injured to the hospital between 77.30 pm. Ld defence counsel has contended that according to PW7 Surender Mathur, he removed he injured to Braham Shakti hospital and he has not stated that any police official was also present whereas PW2 has stated that he removed injured to the hospital and 45 persons were with the injured, so the witnesses cannot be relied upon.
Ld defence counsel has further contended that according to PW1 HC Jai Bhagwan, PW2 Ct Kuldeep came to him at about 9.45 pm, whereas Ct Kuldeep has stated that he reached at the PS at about 9.15 pm, which shows that the rukka was not sent by SI Praveen as deposed by witnesses nor it was taken by PW2 to PS for getting registered the case.
PW4 is Inderpal. He has stated that on 22/01/01, he was working as photographer at shop and was called by the IO at the spot where he took photographs from different angles. He had produced the negatives before the court, which was Ex.PW4/110 and positives as Ex.PW4/1120.
PW6 is Ct Ramesh Chand. He is a witness to the proceedings and has deposed the same facts as deposed by PW11 SI Pradeep Kumar and he has identified the identified the case property as Ex.P1 to Ex.P6, before the Court. SC No. 06A/12 14/14
Regarding the arrest of accused persons, PW11 SI Pradeep Kumar has deposed that on 15/02/2001, injured Jitender was discharged from the hospital and he recorded his statement. On 03/03/2001, accused Manoj Kumar (PO) was arrested in FIR no. 223/2001, PS Sultanpuri and in that case, he made disclosure statement pertaining to this case. Copy of his disclosure statement is Ex.PW8/A and after interrogation, he was arrested in this case vide memo Ex.PW11/E. Accused Manoj had also disclosed the name of other coaccused namely Ramesh and Bittoo and at his instance accused Parvesh was arrested, in this case vide memo Ex.PW11/F and his personal search was taken vide memo Ex.PW11/G. Both the accused pointed out the place of incident vide pointing out memo Ex.PW11/H. PW11 has further deposed that it was revealed that accused Manoj was having one knife, which was used by him in the incident. However despite best efforts, the said knife could not be recovered. Accused Manoj and Parvesh were produced before the Court and an application for conducting TIP of both these accused persons was moved, which was assigned to Sh. D.S. Sidhu, the then Ld MM. Both the accused Parvsh and Manoj refused to take part in TIP, thereafter both were remanded to JC. PW11 has further deposed that on 17/03/2001, when both accused were produced before the Court, they were identified by witnesses namely Vikas, Jitender and Vishal. PW11 has further deposed that he obtained the opinion of doctor regarding the nature of injury and on completion of investigation, he prepared the challan.
PW112 is Sh. D.S.Sidhu, Retired MM. He has proved the TIP proceedings conducted by him of accused Manoj and Parvesh, vide application SC No. 06A/12 15/14 Ex.PW12/A. Both the accused refused to join the TIP proceedings and it was recorded vide Ex.PW12/B and copy of the same was given to IO vide application Ex. PW12/C, vide order of Ld MM Ex.PW12/C1.
Ld defence counsel has further contended that on 03/03/01, both accused Manoj and Parvesh refused to join the TIP and adverse inference could be drawn against them, so there was no need for identification of accused on 17/03/2001, by the witnesses in the Court when accused was produced, before the Court, which shows that accused was shown to the witnesses and PW3 and PW5 have identified accused Parvesh, before the Court on the basis of the same.
To prove the nature of injuries sustained by injured Jitender, PW8 Dr, Sudip Kumar has been examined, who has stated that on 22/01/2001, he has examined Jitender Mathur, who was brought by Surender Mathur with alleged history of stab injuries at 7.15 pm, by some unknown person.
Ld defence counsel has contended that this itself is contradicting the deposition of PW2, who has stated that he had removed injured Jitender Mathur to the hospital in between 7 to 7.30 pm. Ld defence counsel has further contended that if PW2 Ct Kuldeep had removed the injured to hospital, then certainly his name should have been appeared in the MLC.
According to PW8 Dr. Sudip Kumar, Jitender Mathur was sustaining 5 injuries in all, which is neither corroborating with the cross examination of PW3 Jitender Mathur, who has deposed that he had sustained 16 injuries in all nor the same is corroborating with the deposition of PW10 Vishal, who has stated that Jitender Mathur sustained several injuries on his face, chest and belly, because according to PW8 Dr. Sudip Kumar, Jitender Mathur had sustained injuries mid SC No. 06A/12 16/14 face and left ear and there is no injury on the belly nor PW5 told to the police or before the court that scuffle had also took place, so witnesses cannot be relied upon.
In view of the above discussion, identity of accused Parvesh is doubtful as PW3 Jitender Mathur and PW5 Vikas have identified him but PW10 Vishal has not identified him as the same person, who had caught hold injured Jitender. So the contradictions appearing in the deposition of PW3 Jitender Mathur and PW5 Vikas regarding the manner and the activities of the persons, who came in the shop, are material one. It is not corroborated whether accused Parvesh was having a knife with him or not. It is also not corroborated whether only accused Parvesh had caught hold injured Jitender or or any other boy had caught hold injured Jitender. Admittedly, no act has been deposed against accused Parvesh in causing injuries to Jitender and it is also not corroborated that accused Parvesh was having knife in his hands at the time of incident, so I am not inclined to believe PW3 Jitender Mathur and PW5 Vikas in respect to the incident and involvement of accused Parvesh to the extent that he was having common intention while he caught hold to cause injuries to Jitender Mathur with knife, by other person.
Mere common intention is not sufficient to held guilty a person unless and until, he acted in any manner, in furtherance of the incident. In support of his contentions, Ld defence counsel has relied upon 1997 VII AD SC 427 titled as Chhotu & Ors Vs. State of Maharashtra, wherein it is held that " if really accused was sharing the common intention of the other three to commit the murder to assault the deceased with the knife he was allegedly carrying, he is, SC No. 06A/12 17/14 therefore, entitled to at least the benefit of reasonable doubt."
Ld defence counsel has further contended that even it is held in 1999 VII AD (SC) 787 titled as Ramashish Yadav & Ors Vs. State of Bihar that if two of the accused persons caught hold the deceased and other two inflicted the injuries, then the two accused persons who caught hold , could not be convicted u/s 302/34 of IPC.
Ld defene counsel has further relied upon on 1 (2001) CCR 302 (SC) titled as Suresh & Anr vs State wherein it has been held that "who only keeps common intention in his mind, but does not do any act at the scene , cannot be convicted with the aid of section 34 of IPC."
I have gone through the same and the judgments relied upon are applicable to the facts and circumstances of the present case and accused Parvesh cannot be held guilty for the offence u/s 307 of IPC with the help of section 34 of IPC. Accordingly, accused Parvesh is acquitted for the offence u/s 307 of IPC read with section 34 of IPC.
Announced in Open Court on dated on 7th March, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 06A/12 18/14 SC No. 06A/12 19/14