Delhi District Court
Sh. Nirmal Kant Goel vs Sh. Joginder Kumar Heera on 2 April, 2007
IN THE COURT OF SH. LOKESH KR. SHARMA:MM:DELHI
Complaint Case no. 6145/06
Sh. Nirmal Kant Goel
S/o Late Sh. Madan Gopal
56-12B, (M-2), Gali no.1,
Industrial Area, New Rohtak Road
Anand Parbat, New Delhi ...Complainant/Petitioner
Versus
Sh. Joginder Kumar Heera
S/o Sh. Roshan Lal
R/o TP-108, Pitampura, Delhi
Office:-50/12-B, (M-2)
Gali no.1, Industrial Area
New Rotak Road, Anand Parbat
New Delhi.
Sh. Prince
S/o above mentioned Sh. Joginder Kumar Heera
R/o TP-108, Pitampura, Delhi.
Sh. Ache Lal
workman of the above mentioned Joginder Kumar
Heera, i.e the respdt. No/Accused no.1,
R/o 50-12-B, (M-2), Gali no.1, Industrial Area,
New Rohtak Road, Anand Parbat, New Delhi.
SI N. C. Thakur
P.S. Anand Parbat,
Investigating Officer of case FIR no.105,
dated 22.4.2000, under Sec.325 IPC,
PS Anand Parbat, Delhi.
Inspector C. L. Jatav
the then SHO PS Anand Parbat
New Delhi.
Inspector V. S. Meena
the new/present SHO PS Anand Parbat
New Delhi.
Sh. Uday Sahay
DCP/West District
Office Rajouri Garden
Delhi.
Sh. Ajay Raj Sharma
Commissioner of Police
Police Headquarters
I. P. Estate, New Delhi.
3-4, muscle men/henchmen of
the above mentioned respondent/
accused no.1, Sh. Joginder Kumar
Heera. ... Respondents/accused.
ORDER ON SUMMONING:-
1. The complainant has filed the present complaint against the accused
persons for taking an action under Sec. 147/148/149/307/452/506 IPC against
accused no.1 to 3 as well an action under Sec. 177/217/218/420/468/471/120B
IPC against accused no.4, accused no.5 and accused no.6 and also an action
against accused no.7 and accused no.8 for failure on their part to deliver justice
to complainant despite being legally bound to do so instead of several repeated
reminders and complaints.
2. Briefly the facts that had given rise to the filing of the present
complaint are succinctly given here as under:-
3. Complainant is a tenant of a small portion measuring about 150 sq.
feet in premises number 50/12B, (M-2), Gali no.1, Industrial Area, New rotak
Road, Anand Parbat, New Delhi under Smt. Santosh Rani Heera W/o Late Sh.
Roshan Lal Heera R/o PP-82, Pitampura, Delhi who also happens to be the
mother of accused no.1. The said premises was stated to have been taken on
rent by the complainant about 14 years prior to the date of institution of the
present complaint and rent was subsequently raised to Rs.500/- per month and
complainant was stated to be in constant and continuous possession of the said
premises where he was carrying on the business of manufacturing of fasteners
on a very small scale under the name and style of M/s Aggarwal Auto Industry.
The complainant's wife was also stated to be running a small factory just
opposite to the factory of the complainant at premises no.50/17,C-1, Gali no.1,
Industrial Area, New Rohtak Road, Anand Parbat, New Delhi under the name
and style of M/s Goel Fasteners.
4. Accused no.1 was stated to be 'Dada' of the area and was indulged
in creating all sorts of mischiefs and nuisance along with his muscle men/
henchmen and was threatening the petitioner with dire consequences in order to
harass and torture him so that petitioner would vacate the said factory premises
under his possession. Despite the requests made by complainant to accused
no.1 that since his mother was the sole and exclusive owner of the said premises
and he was not authorized to act in any manner whatsoever on her behalf,
accused no.1 never desisted himself in indulging into such acts and in the first
week of March 2007, accused no.1 along with his neighbour one Jasbir Singh
approached the complainant and threatened him to vacate the said rented
premises within a week otherwise he was stated to have eliminated the entire
family of the complainant. Complainant made a written complaint regarding the
said incident to the SHO PS Anand Parbat on 7.4.2000 apprehending therein a
great danger and threat to his life and property as well as lives of his family
members.
5. On 8.4.2000 at about 7.45 pm when complainant was present at his
factory with one customer namely Sh. Tajinder Kumar S/o Late Sh. Om Prakash,
R/o RG-8, Pocket-B, Janta Flats, Raghubir Nagar, New Delhi-27 as well as the
foreman of his factory Sh. Pramod Kumar @ Pappu S/o Sh. Ram Lubhaya
Rattan R/o F-1/278, Sultanpuri, Delhi-41, then the accused no.1 holding an iron
road in his hands along with his son i.e accused no.2 and his workman Achey Lal
i.e. Accused no.3 and three or four other muscle men came into factory premises
of complainant and accused no.1 shouted to his accomplices 'AAJ GOEL KO
JAAN SE MAAR DO'. After this, accused no.1 caught hold off the petitioner by
scarf of his neck, while the others caught hold of his hands/body and started
giving him full-blooded fists and leg blows and accused no.1 hit the iron rod on
the left side of the petitioner's temple with full force with an intention to kill him as
a result of which the petitioner sustained injuries on the left eye , left ear, left
temple on the left side of the chest and other parts of his body and the petitioner
fall down on the ground. Assuming him to be dead, they all left the factory. The
complainant was thereafter taken to DDU hospital. On 9.4.2000 at about 3.00
pm, the entire episode was narrated by the complainant to SI N. C. Thakur of PS
Anand Parbat, IO of the case who apparently noted down the same on paper
and obtained signatures of complainant without any date. The complainant
remained in hospital for about three days and was discharged on 11.4.2000. As
a result of the injuries sustained by him, the complainant had suffered
permanent hearing impairment in his left ear which was so declared by the
department of ENT, DDU hospital on his examination on 13.4.2000 when his
audio meter test revealed 'No response'.
6. Since no case was registered till that date hence the complainant
visited the police station Anand Parbat and met IO of the case SI N. C. Thakur as
well as Inspector C. L. Jatav, the then SHO and explained them all the above
mentioned facts. However, he was told by them that no action was possible until
the final result of the nature of injuries was received from the hospital. Later on
the complainant came to know from someone that police had registered a simple
case under Sec. 325 IPC against the accused no.1 alone. After this IO of the
case reluctantly had supplied him the copy of FIR which was also not properly
legible. However, somehow the said FIR was gone through by the complainant
and it was revealed thereafter that some of very material, vital and correct facts
such as name of accused no.2 and accused no.3 as well as names of witnesses
Tajinder Kumar and Pramod Kumar @ Pappu were not mentioned in the said
statement of the complainant by the IO which he had recorded in the hospital. IO
was stated to have committed such acts of omissions with vested interests for his
own ulterior motives in connivance with accused no.1.
7. It has been stated further by the complainant that accused no.1 was
in a habit of repeatedly extending threats that the local police of PS Anand
Parbat was on his pay roll and he had close ties even with their higher senior
police officers. In order to corroborate this fact to establish the arrogance and the
extent to which accused no.1 could have gone, the complainant has also
mentioned about a Kalandara registered under Sec. 107/150 CrPC sent vide DD
no.19A on 18.3.2000 PS Anand Parbat against said accused no.1 and one
Murari Lal which was sent by SI Praveen Kumar wherein it was mentioned by IO
that the present accused no.1 had refused to make any statement to the police
and had told the IO that he would make his statement only after having
consultation / discussions with the senior police officials with whom he had close
relations.
8. Since no action had been taken by the local police in a proper
manner hence upon the complaint of the complainant hence he was constrained
to send the complaint dated 6.5.2000 to Commissioner of Delhi Police on
8.5.2000 with copies of the same addressed to Joint Commissioner of Police,
Southern Range, Joint Commissioner of Police (Vigilance), DCP/West District /
DCP (Vigilance), ACP / Sub-Division Patel Nagar and also to SHO PS Anand
Parbat whereby the complainant requested that the entire matter should be got
investigated by Vigilance Branch by an officer not below the rank of ACP and
suitable legal action against the erring police officials be taken for inaction on
their part. It was also prayed in the said complaint that Sections
147/148/149/307/452/506 IPC be added in the FIR and investigation be
transferred to Crime Branch as local police was hands in gloves with the accused
persons. Arrest of accused persons was also prayed in the said complaint under
the aforesaid legal provisions. Besides this it was prayed that safety and security
to the lives and property of petitioner and his family members be provided and
ensured and the erring police officials as well as all the accused persons be
booked under the relevant provisions of law as well as preventive proceedings
under the provisions of Sec.107/150 CrPC be also initiated against accused no.1
to 3 and their henchmen.
9. This complaint, however went in vain despite meeting of complainant
on 21.5.2000 at 9.30 am along with Tajinder Kumar with the then SHO PS Anand
Parbat Inspector V. S. Meena (accused no.6 herein above) in his office.
However, besides false assurances, the complainant gained nothing out of the
said meeting. Thereafter another reminder dated 5.6.2000 was sent by the
complainant to all the aforesaid senior police officials making the same prayers
as made earlier. But ultimately same also proved to be a futile exercise.
Thereafter the complainant had given another complaint/reminder to all the police
officials concerned on 27.7.2000, which was sent to the said officials by way of
registered post and were duly served upon them as well. However, same also
proved to be futile exercise. Once the police had failed to take any action upon
several complaints of the complainant, hence he was left with no other option but
to approach this Court by way of the present complaint.
10. The complainant has also stated in this complaint that as per DD
no.18A dated 8.4.2000, SI N. C. Thakur recorded his arrival report from DD
no.11A at 12.45 a.m in the mid night which reads as follows:-
''On receipt of DD no.11A, I along with Ct. Satbir singh no.1112/W
reached at 50/12 Gali no.1 Anand Parbat, Dehli where it was learnt that one
Nirmal Singh S/o Sh. Madan Gopal R/o 50/12-B, Gali no.1, Anand Parbat, Delhi
had sustained injury. I sent the Constable to DDU hospital where he checked
MLC no.2673 on which doctors had written 'u/O blunt' where the injured was
requested (by constable) to give his statement, to which he had declined/refused
and said that he would give his statement later on. The reasons for the quarrel
could not be known. DD is being kept under inquiry and action will be taken on
recording the statement of the injured and the result of the MLC. This was
brought to the notice of SHO''.
11. On the basis of this, DD entry, it has been stated by the complainant
that perusal of same makes it amply clear that IO had never gone to DDU
hospital in order to conduct investigation thereof i.e to collect the injury
sheet/MLC form or to request the doctor on duty to declare the condition of the
injured as to whether he was fit or unfit to make a statement and he should have
recorded the statement of injured in case the doctor had declared/permitted in
writing the complainant as being fit to make statement and take action
accordingly. It was also sated that IO had not conducted any inquiries by
recording any statement of witnesses present at the spot and had rather
recorded perfunctory and forged report in the daily diary.
12. On the contrary, it was submitted that as per the endorsements
made by accused no.4 IO in the rukka sent to the police station for registration of
case FIR no.105/2000 CrPC, he had mentioned that on the receipt of DD no.11
A dated 8.4.2000, PS Anand Parbat, he along with Ct. Satbir Singh no.1112/W
reached the place of incident i.e. 50/12B, Industrial Area, Anand Parbat, Delhi
where the injured/complainant (the present complaint) was sent to DDU hospital
through Ct. Satbir Singh no.1112/W and thereafter the IO/SI N. C Thakur
reached at DDU hospital and obtained MLC no.2673/2000 of the
injured/complainant. The complainant/injured was alleged '
h/o assault'and 'u/O
blunt' was written, the doctor had told the IO (accused no.4) that the
complainant/injured was fit to make statement upon which the IO recorded the
statement of complainant/injured and the said case was registered on the basis
of statement of complainant as well as the result of injuries which was grevious.
In the light of two contradictory versions of the IO, it was pointed out that infact
he had never reached the aforesaid place of occurrence on receipt of DD
no.11A dated 8.4.2000 and had rather completed all the formalities while sitting
in the PS Anand Parbat Delhi.
13 Not only this, but also these facts were sufficient alone to raise a
presumption that accused no.4 had colluded with accused no.1, accused no.2
and accused no.3 and hence did not record the correct and complete statement
of complainant which was made to him on 9.4.2000 in DDU hospital and had also
intentionally shifted the place of occurrence from inside the petitioner'sfactory
premises to outside the petitioner'sfactory premises along with omission in
including the names of remaining accused persons as well as witnesses and thus
registered a simple case under Sec. 325 IPC against accused no.1 alone.
14. In the light of the aforesaid facts and circumstances, it has been
prayed that all the accused persons be summoned, tried and punished in
accordance with the law for the offences committed by them separately as well
as in connivance with each other.
15. In order to substantiate his version, the complainant has examined
12 witnesses.
16. The complainant himself has appeared in the witness box as CW1
and stated in his examination in chief that he was running a factory of fasteners
for the last 14 years at the address given by him in the complaint and was a
tenant under Smt. Santosh Kumar Heera to whom he was tendering rent on time
every month and had no disputes or grievence or complaints against the said
land lady. Accused no.1 was also stated to be having a factory in the same
premises of the complainant who used to threaten the complainant every single
day along with his hired gundas either to vacate the premises or to face dire
consequences. When accused no.1 was told by the complainant that he had no
business or concern with the said premises as same was owned by his mother
who had let out the same to him and the complainant was also paying rent
regularly to her then the accused no.1 got annoyed. It has also been deposed
that on 26.2.1993 in the proceedings under Sec. 107/150 CrPC before Special
Executive Magistrate, Smt. Santosh Rani Heera, mother of accused no.1 had
given a statement against her own son accused no.1 that he was continuously
torturing her tenants and was also depriving them of necessary amenities by
causing interruptions in the supply of electricity and water as well as was
extorting money from them thereby depriving the original owner of the premises
her legitimate dues. Photocopy of certified copy of said statement has been
placed and proved on record as Ex.CW1/ A. further he had deposed that
accused no.1 was a '
Dada' of area and used to claim himself as such and also
used to state that he had connections with leaders as well as police of local area
was also in his hands and control. The certified copy of Kalandra under Sec.
107/150 CrPC registered against the accused no.1 and one Murari Lal has been
placed on record as Ex.CW1/B, Ex.CW1/ C, Ex.CW1/ D, Ex.CW1/ E and
Ex.CW1/ F wherein accused no.1 had refused to make any statement to the IO
of the said case SI Praveen Kumar on the ground that he wanted to make a
statement only after consulting the senior police officials.
17. CW 1 has further deposed about the extension of threats by accused
no.1 in March 2000 to the complainant as well as the complaint made by him with
officials of PS Anand Parbat on 7.4.2000. Copy of same has been placed and
proved on record as Ex.CW1/ G which bears his signatures at point A and seal of
the police station at point X. He has also deposed about the incident/occurrence
dated 8.4.2000 when the accused no.1 along with his accomplices visited the
factory of the complainant and gave him severe beatings with iron road, fists and
kicks. The accused were also stated to have fled away from the spot upon alarm
raised by Pramod Kumar as well as Tajinder Singh, under the impression that
complainant had already died. Thereafter Pramod Kumar @ Pappu had informed
the police by dialling 100 number and Tejinder Singh took the complainant to PS
Anand Parbat where they met SI N. C. Thakur and appraised him with the entire
episode and requested him to register the case. However, in the mean time, the
PCR Van also reached the PS and SI N. C. Thakur sent the complainant along
with Ct. Satbir Singh to hospital in the PCR Van. Whereafter he was taken to
DDU hospital. Doctors examined the complainant and as he was in critical
condition hence he was admitted to hospital itself. Further he had deposed that
on 9.4.2000 at about 3.00 pm SI N. C. Thakur visited him at the hospital and
asked him to make his statement and upon this the complainant had reitereated
the entire story which had already been narrated by him on 8.4.2000 to the said
police officials at the PS.
18. As per CW1, SI N. C. Thakur recorded the statement and asked him
to sign the same. When CW 1 asked him to read over the statement to him, then
SI N. C. Thakur told him in a very affectionate manner- 'Notto worry'and to trust
him as he would see the accused no.1. Under this deception and allurement SI
N. C. Thakur obtained the signatures of complainant on the said statement by
playing a fraud upon him and when the complainant tried to write down the date
below his signatures then he was asked not to do so as it was not required.
Discharge summary as well as investigation reports of the complainant have
been placed and proved on record by him as Ex.CW1/ H to Ex.CW1/ J
respectively. He had also stated that when he visited the police station to know
the fate of his case, he was told by the then SHO Inspector C. L. Jatav (accused
no.5) that unless and until the final results of the MLC was obtained, the FIR
could not be registered against the accused. However, later on the complainant
came to know about the registration of FIR, a photocopy of which was handed
over to him by SI N. C. Thakur in a reluctant manner. The said photocopy has
been placed on record as Mark A. The complaint dated 6.5.2000 made by the
complainant to the senior police officials is Ex.CW1/ K bearing his signatures at
point A. Ex.CW1/ L is copy of complaint dated 5.6.2000 again addressed to
Commissioner of Police as Reminder of the earlier complaint. The complaint
dated 27.2.2000 being the second Reminder of the earlier complaint has been
placed and proved on record by the complainant as Ex.CW1/ M. Record of DD
entries pertaining to DD no.11A is Mark B and pertaining to DD no.18 A is Mark
C on record. Since the police had not taken any action against the accused
persons hence the complainant was constrained to approach this Court and file
the present complaint.
19. CW 2 is Pramod Kumar @ Pappu S/o Sh. Ram Lubhaya Rattan R/o
F-1/279, Sultanpuri, Delhi-41 who had stated in his examination in chief that he
was an employee with the complainant at the complainant'saddress of Industrial
Area, Anand Parbat and neighbour of the complainant namely accused no 1
used to extend him threats to vacate the said premises otherwise he shall face
dire consequences and would be eliminated. The premises was stated to be
owned by the mother of accused no.1. He has also narrated the entire incident
dated 8.4.2000 in which the complainant had sustained injuries caused by the
accused persons and had specifically stated that it was accused no.1 himself
who had caught hold off the collar of the complainant with one hand and had
given blows with fists and gave a severe blow by an iron rod at the left side of the
temple with the other hand and after receiving the same, the complainant had
fallen down on the ground and where after CW 2 Tejinder Singh raised alarm
upon hearing that all accused fled away from the spot. Thereafter CW 2 had
informed the police by dialling 100 number. However, when the police did not
reach the spot within reasonable time despite writing, Tejinder Kumar took the
complainant to PS Anand Parbat. However, thereafter also neither police
reached the spot nor any investigation were made by them nor any statement of
CW 2 was recorded by police.
20. CW 3 is Tejinder Kumar S/o Late Sh. Om Prakash R/o RG-8,
Pocket -B, Janta Flats, Raghubir Nagar, Delhi-27 who had stated in his
examination in chief that on the date of incident at about 7.15 pm, he went to the
premises of complainant to take delivery of goods and when the complainant
asked him to check the goods, it was all of a sudden that at about 7.45 pm
when accused no.1 reached there with an iron road in his hand and accused
no.2 and 3 and 3-4 other persons shouted that today they shall not spare the
complainant by saying that -'
AAJ GOEL KO JAAN SE MAAR DO'
.
21. Thereafter accused no.1 caught hold off the collar of the complainant and his accomplices caught hold off the remaining body of the complainant and started giving him beatings with kicks and fists and accused no.1 while holding collar of the complainant with one hand had also given a severe blow of iron rod with full force on his head which ultimately had fallen on the left temple of the complainant due to which he had fallen down on the ground. Thereafter Pramod Kumar @ Pappu raised an alarm, upon this accused no.1 along with his accomplices fled away from the spot and intimation regarding this incident was given to the police. They waited for some time for the police to arrive at the spot. However, since the condition of the complainant was critical and serious hence CW 3 himself took the complainant to the police station where they met SI N. C. Thakur. Then the entire facts were brought to his notice and he was requested to register the case. However in the mean time a PCR Van also reached at the spot and SI N. C. Thakur sent the complainant to DDU hospital in PCR Van along with Ct. Satbir Singh. When SI N. C. Thakur was asked to register a case, he told CW 3 that it was his job and he knew his job very well and asked the CW 3 to got back to his house. Till date of his deposition, police had not recorded his statement.
22. PW 4 is HC Sukhbir Singh, no.49/W, Anand Parbat Delhi who was posted as MHC (R) and has produced a copy of DD no.11 A as well as DD no.18A and has proved on record the same as Ex.CW 4/A and Ex.CW4/B respectively.
23. CW 5 is Sh. Ajay Tiwari, Assistant Ahlamd in the Court of Sh. Rajinder Kumar, ld. M. M. Delhi who had proved on record the copy of FIR no.105/2000 as Ex.CW5/A and the copy of MLC has been proved on record by him as Ex.CW5/B.
24. CW 6 is Dr. A. K. Mongia from DDU hospital who has proved on record the original discharge slip of the complainant as Ex.CW1/ H which was stated to be in hand writing of one of the Doctors from his own units. Besides this he has also proved on record the documents Ex.CW6/1 to Ex.CW6/8 which are the copies of discharge slip as well as treatment documents of complainant. He has also proved Ex.CW1/I and Ex.CW1/ J stated to have been issued by his hospital.
25. CW 7 is Ct. Ashok Kumar no.1207 W who was the Reader to SHO PS Anand Parbat at the relevant point of time and he has proved on record the copy of complaint dated 7.4.2000 as Ex.CW7/A wherein the complaint given by the present complainant against accused no.1 was mentioned to have been received at serial number 228 containing three pages which was later on assigned to ASI V. D. Yadav for further necessary action who had ultimately handed over further investigation of the case to SI N. C. Thakur as he had been transferred from the said police station.
26. CW 8 is Dr. Atul Kumar Singh working as Sr. Resident DDU hospital who had identified the signatures of Dr. Surender Sehgal on MLC no.2673 dated 8.4.2000 as well as OPD Card number 8446/2000 of complainant and had identified the same on Ex.CW5/B and Ex.1/I. He has also placed on record the attested copy of MLC as Ex.CW8/A on record.
27. CW 9 is one Ms Savita Sabharwal , Audiometerist from DDU hospital, Delhi who has also proved the handwriting of Dr. Surender Sehgal on Ex.CW1/I at point A and she has also identified the handwriting on Ex.CW1/ J at point A and she has also proved the opinion given by Dr. Surender Sehgal on MLC on Ex.CW5/B at point A which was also stated to be in handwriting of Dr. Surender Sehgal.
28. CW 10 is Ct. Gurubachan Singh no.1512/W working in the Court of Special Executive Magistrate PS Malviya Nagar who has proved on record the certified copies of Kalandra Ex.CW1/ B to Ex.CW1/ F.
29. CW 11 is ASI Bhagirath number 5125 PCR who was posted as duty officer on 22.4.2000 from 5 pm to 1.00 am when he received the rukka Ex.CW11/A sent by SI N. C. Thakur bearing his signatures at point A. Upon which the said Duty officer made his endorsements at point B along with his signatures thereon and recorded FIR no.105/2000 Ex.CW11/B bearing his signatures at point A and at point A1 which was recorded by him in his own handwriting. After registration of the FIR, the carbon copy of the same and original rukka was handed over by the said CW to Ct. Omvir no.1081/W and the legible copy of the said FIR has been placed on record as Ex.CW11/C.
30. CW 12 is SI Praveen Kumar posted at Kirti Nagar at the relevant point of time, who had categorically deposed that he was the IO in a case registered on DD no.19A against accused no.1 as well as one Murari Lal as present accused no.1 was stated to have damaged the wall of the shop of Murari Lal and had also threatened him with dire consequences. As per CW 12 when he inquired the matter from accused no.1 Joginder Kumar Heera, he refused to give any statement to the said IO by saying that he had close ties with the senior police officials and shall give his statement only after consulting them. He has also placed on record a copy of DD no.19A and two other sheets as Ex.PW12/A and Ex.PW12/B respectively and has also further proved the copies of Kalandara Ex.CW1/ B to Ex.CW1/ F.
31. I have heard the ld. Cl appearing for complainant Sh. Mandeep Walia advocate at length as well as perused the written arguments and submissions filed on record on behalf of complainant.
32. From the perusal of evidence of witnesses as well as documents placed and proved on record by complainant in his presummoning evidence, it becomes amply clear that IO of the case SI N. C. Thakur had left no stone unturned in saving the accused persons from the clutches of law, not only by making false and fabricated entries in the record but also by making intentional omissions in writing the correct and complete particulars in the statement of complainant so as to dilute the gravity of offence against the accused persons. It becomes amply clear that DD no.18A, the extract of which has been placed on record as Mark C shows as if the same was a distinct, separate and independent DD pertaining to the investigation done by IO in respect of complaint. However, from the perusal of Ex.CW4/B which is a copy of the DD register , it becomes apparently clear on the record that infact the said DD was recorded in respect of the proceedings conducted with respect to the DD no.13A and not in respect of DD no.11A which pertained to the present case. Further it appears that particulars of the present case were inserted by the then IO only with a view to save his skin and to avoid any future complications which might have arisen adversely against him with respect to the investigation of this case.
33. Not only this, but also there are serious and material contradictions in the contents of the FIR no.105/2000 as well as contents of DD no.18A as on the one hand the said IO had mentioned in the aforesaid DD no.18A that he had sent Ct. Satbir Singh to DDU hospital to procure the statement of injured who is the complainant in the present case whereas in the FIR as well as in rukka he had stated that he himself had gone there and recorded the statement of complainant/injured.
34. Further not only this, but also it is interesting to note that as per the certified copy of Tehrir filed and placed on record by the complainant as Ex.CW11/A, it appears from the language thereof that the said statement was made by complainant to the IO on 9.4.2000 one day after the incident but the date that has been put up just below the signatures of complainant pertains to 8.4.2000 in a different ink by the IO so as to make it appear as if the statement was recorded on the same date of the incident itself.
35. Further from the perusal of MLC it appears that doctor had given their final opinion with respect to the nature of injuries on 18.4.2000 itself whereas as per rukka, IO had collected the same on 22.4.2000 and he had failed to furnish any explanation for delay of four days committed by him in procuring final results on MLC
36. In support of his arguments and contention, ld. Cl for complainant has placed reliance upon the following citations and Judgments:-
1. (1995) 5 SCC 518 case titled as Karnail Singh Vs. State of MP Wherein it has been held by Hon'bleSupreme Court of India that ' 'A defective investigation by police cannot be a ground for acquittal of the accused and mere delay in lodging FIR does not raise an inference in itself that the complaint was false as doing so would tantamount to playing into he hands of investigation officer if the investigation is designedly defective.''
2. 1972 Cri.L.J. 88 Abudul Vs. State (Kerala High Court) This Judgment pertains to procurement of sanction under Sec. 197 CrPC in respect of a public servant wherein it has been held that '' If the accused without entering money in cash book retains the same with himself then he cannot be said to be acting in due discharge of his officials duties and hence sanction under Sec. 197 CrPC for his prosecution would not be necessary''.
Similar is the mandate of:
3 1980 Cri. L. J. 1215 (Orissa) MukundaBaral etc Vs. Godwari Mishra & Ors.
4. 1998 Cri L. J. 2100 (Allhabad) Dr. Z. U. Ahmed & Anr. Vs.State of UP & Ors.
5. 1998 Cri L. J. 923 (Calcutta) case titled as Paresh Chandra Koji Vs. State.
6. 1999 Cri L. J. 3543 (Gowahati) case titled as Dilip Kr. Saikia Vs. State.
7. 1999 Cri L. J. 4488 (Karnatka) P. Govind Bhatt Vs. State of Karnataka.
8. 1999 Cri L. J. 4475 (Karnatka) S. Jayappa Vs. State of Karnataka.
9. 1999 Cri L J. 3696 (SC) State of Kerala Vs. V. Padanabham Nair
10. 2001 Cri L. J. 2329 (Punjab & Haryana) case titled as Mohinder Sngh Vs. State of Punjab
11. AIR 1986 SC 345 Babir Singh Vs. D. N. Kaadyan & Ors along with Delhi Administration Vs. D. N Kadyaan & Ors.
12. 2001 Cri L. J. 331 (Allhabad) case titled as Bismillah Idrisi Vs. State of UP.
13. 2002 (3) JCC 1464 (SC) Raj Kishan Roy Vs. Kamleshwar Pandey.
14. 1997 IV AD (SC) 137 case titled as Shamboo Nath Mishra Vs. State of UP.
37. Similarly reliance has also been placed on 1997 Cri L. J. 1382 (Madras High Court) case titled as Karumutthu S. Chockalingam Vs. T. Kannappan wherein it has been held by Hon'bleHigh Court of Madras that '' If there was no necessary connection between the act complained of and the official duties and the performance of those duties and official status furnished only the occasions or opportunity for the acts, then no sanction would be required.
38. Same is the mandate of Hon'ble Supreme Court in 1967 Cri. L. J. 656 (SC) in case titled as Bakshish Singh DhaliwalVs. State of Punjab as well as 1985 Cri L. J. 1878 (Patna) in case titled as Binod Kumar Vs. State of Bihar and also of AIR 1983 SC 610: 1983 Cri. L. J 988 case titled as Manohar Nath Kaul Vs. State of J & K and 1991 Cri. L. J. 72 (Patna) case titled as Mahesh Chander Singh Vs. Raghunandan Prasad Same is the version of our Hon'bleHigh Court as well which has been reported in 1998 Cri L. J. 3910 in case titled as State Vs. Shiv Lal, wherein it has been held that ''Where Sub Inspector willfully and knowingly had given false evidence and also fabricated false evidence with intentions that such evidence would be used in proceedings against accused which cannot be a part of anyone'sofficial duty hence he was not entitled to either for protection of DP Act or Section 197 CrPC.
2001(2) JCC (Delhi) 74 Smt. Fareeda Dar Vs. State wherein it has been held by our own Hon'bleHigh Court that in case of conspiracy usually the investigators are not in a position to collect direct evidence but if there is some material on record to raise an inference of conspiracy then the trial Court would be justified to presume the existence of conspiracy and put all those on trial who seem to be involved therein because at the stage of charge even a grave suspicion can be a basis for framing of charge if the facts and circumstances placed on record, considered in totality are suggestive one's being in conspiracy.
39. In 1995 Cri L. J. 2060 (SC) in this case Hon'bleSupreme Court has held that '' A conspiracy can be proved only by circumstantial evidence as there cannot be any direct evidence because conspiracies are generally secretly planned.
Similarly reliance has also been placed on AIR 1970 SC 45 Mohd. Hussan Umar Kochra Vs. K. S. Dilip Singhji & Anr. which pertains to the elements of conspiracy.
Reliance has also been placed by complainant on 2002 (4) RCR (Criminal) 373 (SC) case titled as Nollabothu Venkaiah Vs. State of AP wherein Hon'bleSupreme Court has held that ''The principle that no innocent man should be punished is equally applicable that no guilty man should be allowed to go un-punished as wrong acquittal of the accused will send a wrong signal to the society and wrong acquittal has its chain reactions, law breakers thus would continue to break law with impunity and people then would lose confidence in criminal justice system and would tend to settle their scores on the streets by exercising muscle power.
40. So far as the allegations of the complainant against the accused persons pertaining to the un-lawful assembly are concerned reliance in this regard has placed by him on AIR (37) 1950 Federal Court 80 case titled as Kapil Dev Singh Vs. The King. Wherein Hon'bleFederal Court has held that Section 147 IPC will apply if upon evidence in the case, the Court is able to hold that a person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or un-identified.'' Similarly, following two citations also deal with the concept of unlawful assembly:- 41 AIR 1975 SC 455 and 2007 (II) AD (CR) (DHC) 184 Bhagwaan Singh & Suresh & Anr. Vs. State.
42. Lastly reliance has also been placed by the complainant on the following citations:-
1993 Cri L J. 19 (Delhi) Kishan Vs. State through Delhi Administration wherein it has been held by our own Hon'bleHigh Court that '' For the purpose of validity of charge under Sec. 307 IPC it was sufficient that the accused had given a knife blow on the vital part/stomach of the injured with a knowledge and intention that it was going to cause death and since sufficient evidence to this effect was available on record hence the charge for the offence under Sec. 307 IPC was made out.
43. III (2007) SLT 35 (SC) State of MP Vs. Kedar Yadav wherein it has been held by Hon'bleSupreme Court that '' It is sufficient to justify the conviction under Sec. 307 IPC if there is a present intent coupled with some overt act in execution thereof and it is not necessary or essential that bodily injury capable of causing death should necessarily be inflicted as Section makes distinction between the act of accused and its result, if any. Hence accused cannot be acquitted for the offence under Sec. 307 IPC merely because injuries inflicted were in the nature of simple hurt.
44. Further reliance has also been placed on 1992 Cri L. J. 339 (Bombay) case titled as Sahebrao Kisan Jadhav Vs. State of Mahrashtra wherein it has been held that '' Where a group of persons assaults a single individual with iron rods, the duration of time required to kill would not necessarily be long and under these circumstances where the victims were assaulted in succession merely because the time spent on each one was relatively short it would not change the complexion of the assault. In this view of the matter the conclusion of the Sessions Judge that the accused assaulted the victims with the intention and knowledge that their acts would cause death is correct and accordingly the conviction under Sec. 307 IPC must be upheld.''
45. So far as applicability and invocation of Sec. 34 IPC is concerned, reliance has been placed by the complainant on I (2007) CCR 122 (SC) Prakash Vs. State of MP wherein it has been held by Hon'bleSupreme Court that ''In order to attract the applicability of Sec. 34 IPC, the physical presence of accused on the place of occurrence need not be proved as he may stand guard outside the room or ready to warn his companions. He must therefore participate in commission of crime but same dos not mean that some overt act must be attributed on his part.
46. Similarly reliance has been placed upon 138 (2007) DLT 393 case titled as Amit Kochar Vs. State of Delhi wherein it has been held by Hon'ble High Court of Delhi that ''It is premature to prejudge whether nature of injuries inflicted were such as would have caused death or sole reason for death were surgical wounds-Reliance on medical report, without examination of kind of assault that took place, as per testimony of witnesses of prosecution is an incomplete exercise. Deceased beaten up badly by four accused, he fell down unconscious and hospitalized-If during trial it is evident that lesser of two offence made out , accused petitioner would be entitled to benefit, subject to provisions of Sect 222 CrPC and after grant of opportunity to defend charge in lesser offence''.
47 Hence from the appraisal of the testimonies of the witnesses on record and from the perusal of the documents placed and proved on record by them as well as in the light of the aforesaid case law as cited and discussed herein above, I am satisfied that prima facie an offence under Sec. 147/148/149/307/ 452 as well as under Sec. 506 IPC is made out against accused no.1 to 3 and offence under Sec. 167/177/217/218/418/465 as well as 468 and under Sec. 471 IPC r w. Sec. 120 (b) / 34 IPC is made out against accused no.4, accused no.5 and accused no.6 who prima facie appear to be in active conspiracy and in collusion with accused no.1 above. However I am not inclined to take any legal action against accused no.7 and accused no.8 named in the complaint as no direct allegations have been leveled against them nor any cogent evidence has been brought forth on record by the complainant so as to warrant initiation of an action against them.
46.Accordingly let all the aforesaid accused persons be summoned for the aforesaid offences as mentioned hereinabove.
(Announced in the open Court (Lokesh Kr. Sharma) today on 2.4.2007) Metropolitan Magistrate