Delhi District Court
Fir No. 19/07; State vs . Shahzad Page 1 Of 27 on 23 April, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 06/12
FIR No. 19/07
P.S. Ashok Vihar
U/S: 186/353/333 IPC &
25/27/54/59 Arms Act
STATE
Versus
SHAHZAD
s/o Mohd. Tayab
r/o jhuggi no. 17B/194,
JJ Colony, Patharwala Bagh,
PS Ashok Vihar, Delhi
Date of Institution: 22022007
Date of arguments: 22042013
Date of judgement: 23042013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 08012007 at about 8:38 am, Ct. Rama Rao along with Ct. Vimal during patrolling reached at EBlock, JJ Colony, Wazirpur, Delhi where one passerby informed them that one boy was waving knife and disturbing the passersby on the pavement of Haryana Canal, FIR No. 19/07; State Vs. Shahzad Page 1 of 27 near Madrasi temple. On this information, Ct. Rama Rao along with Ct. Vimal reached at the spot where they found one person whose name was revealed as Shahzad s/o Mohd. Tayab who was waving buttondar open knife in the air and asking the passersby to give him whatever they were having and also searching them. Both the constables challenged him and on seeing the constables in uniform, accused Shahzad waved the knife towards both constables and told them that if they dared to come towards him, the result would not be good. Both the constables overpowered accused with the help of dandas. During overpowering Shahzad, he took a bite on the cheeck of Ct. Rama Rao. When Ct. Rama Rao tried to escape, accused Shahzad pressed the right hand finger in his mouth and give bite on it. When Ct. Rama Rao tried to save his hand with the help of his left hand, accused Shahzad took his finger of left hand in his mouth and also gave bite on it. Ct. Rama Rao gave slap and fist blows on the face of accused Shahzad. Ct. Vimal also tried to save Ct. Rama Rao but accused Shahzad did not leave the finger of Ct. Rama Rao and ultimately cut the finger with his teeth and thereafter threw the cut finger of Ct. Rama Rao in the running water canal. Many people gathered there and they also gave beating to accused Shahzad. Ct. Vimal informed at PP JJ Colony and DD no. 21 was FIR No. 19/07; State Vs. Shahzad Page 2 of 27 registered. ASI Daya Kishan along with Ct. Rajender Singh reached at the spot and accused Shahzad along with knife was handed over to them. ASI Daya Kishan prepared sketch of the knife and it was measured. The total length of the knife was 24 cms; blade was 11 cms; handle was 13 cms and the width of the blade was 2.5 cms. The blade was made of steel like metal and there was brass button on the knife. FIR u/s 186/353/333 IPC and u/s 25/27/54/59 Arms Act was registered. Accused Shahzad was arrested. Doctor gave the opinion on the MLC of Ct. Rama Rao as grievous. After completion of investigation, chargesheet u/s 186/353/333 IPC and u/s 25/27/54/59 Arms Act was filed in the court.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 186/353/333 IPC and 25/27/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 13 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused opted to lead defence evidence and examined one defence witness i.e. DW1 Dr. Shipra Rampal.
4. I have heard Ld. Amicus Curiae and Ld. APP for State FIR No. 19/07; State Vs. Shahzad Page 3 of 27 and have perused the entire records.
5. Ld. Amicus Curiae for accused argued that PW2, PW3 and PW7 are the material witnesses. PW2 and PW7 are the public witnesses and have been declared as hostile witnesses by the Prosecution. It is not clear in MLC whether PW3 received injury by biting. No measurement of teeth marks were taken by the police. MLC of the accused is on record which reveals that accused was beaten mercilessly. PW3 and Ct. Vimal went to the house of accused in the morning and his hand came between the iron door of the house and because of that, PW3 sustained injuries. Accused was lifted from his house and has been falsely implicated in this case. All the proceedings were conducted by the police while sitting in the PS. Even no knife was recovered from the accused. No teeth bite on the cheek of PW3 was given by the accused. No complaint u/s 195 Cr.P.C. was given by ACP (HQ). It is PW3 and PW6 who had taken away Rs. 4,000/ and one mobile phone make Nokia 2300 from the house of accused. The police has not investigated the case fairly. Public witnesses were not joined during investigation. There are also contradictions in the statements of PWs.
6. Ld. APP for State argued that Ct. Rama Rao/ PW3 and FIR No. 19/07; State Vs. Shahzad Page 4 of 27 Ct. Vimal/PW6 reached at the spot, they found that accused was waving the knife in the air and asking the passersby to give whatever they had with them. When PW3 and PW6 challenged the accused, he also waved the knife towards them. However, PW3 and PW6 overpowered the accused with the help of dandas but during this process of overpowering, the accused had bitten on the cheek of PW3/ Ct. Rama Rao. The accused had also bitten the right hand finger of PW3 from his mouth and when he tried to remove his finger from the mouth of accused, the accused had also bitten the finger of his left hand and cut the finger with his teeth and threw that finger of PW3 in the running water canal. The accused caused the injury to PW3 in an very inhuman way. The accused was apprehended at the spot itself along with knife. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920 and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
7. In view of the above arguments of the Ld. Amicus Curaie and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused had committed the offence as FIR No. 19/07; State Vs. Shahzad Page 5 of 27 charged or whether he has been falsely implicated. PW1 WASI Anita is the DO who proved the FIR as Ex. PW1/A. PW2 Inder Kant Pathak stated that he is labourer by profession. On 08.01.2007 at about 8.45 am, he was going for work. PW2 was crossexamined by Ld. APP for State. During crossexamination, PW2 stated that he knows Pramod Pathak and he reside in the same locality. Accused Shahzad (correctly identified) is also resident of the same locality. The accused had been involved in many criminal cases. PW2 and Pramod had participated in the medical proceeding. PW7 Sh. Pramod Pathak stated that he is labourer by profession. On 08.01.2007 at about 8.45 am, he was going for work. PW7 was crossexamined by Ld. APP for State wherein he stated that he knows Inder Kant Pathak as he resides in the same locality. Accused Shahzad (correctly identified) is also resident of the same locality. The accused had been involved in many criminal cases. PW7 stated that arrest memo and personal search memo of accused Ex.PW3/C & PW3/D bear his signatures at pointC and he had signed the same on the spot on the request of the police officials. PW7 further stated that his statement was read over to him and he had found the same correct. The Ld. Amicus Curiae argued that PW2 and PW7 have not supported the case of FIR No. 19/07; State Vs. Shahzad Page 6 of 27 the Prosecution and they have been declared hostile witnesses by the Prosecution. In this context, I would place a reliance upon the judgement reported in the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J 2653 (1), it was held that evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether. Part of his evidence which is otherwise acceptable can be acted upon. In Paramjit Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200, it was held that evidence of hostile witness need not be rejected en bloc but should be considered with caution and court should look for corroboration.
8. PW3 Ct. Rama Rao stated that on 08.01.2007, he was posted as Constable at P.P. Wazirpur, J.J. Colony, PS Ashok Vihar. On that day, he along with Ct. Vimal were on patrolling in the area of police post. At about 8.38 am, they reached EBlock Chowk, J.J. Colony, where one passerby public person informed them that one boy having open knife with him was disturbing the passerby at Haryana Nahar Pavement, near Madrasi Mandir. On this information, PW3 along with Const. Vimal reached the aforesaid place where they saw accused (correctly identified) was having open knife in his hand and was waiving the same in the air and saying to the public persons that whatever they were having, give it FIR No. 19/07; State Vs. Shahzad Page 7 of 27 to him and was searching them. PW3 and Ct. Vimal warned the accused. They were in police uniform. The accused showed knife towards them and told that if they would try to reach near him, the result would not be good (anjam thik nahi hoga). With the help of their dandas, they managed to overpower accused. All of sudden, accused gave teeth bite on the left side cheek of PW3. When PW3 tried to save himself, accused took his finger of right hand in his mouth and pressed with his teeth. When PW3 tried to save with the left hand, accused took his middle finger of left hand inside his mouth and gave teeth bite. Despite best efforts, PW3 could not take out his finger from his mouth and accused did not allow him to take out the finger till the upper portion of the finger was cut out. Accused threw the upper portion of his finger immediately in the nearby water canal. Thereafter, many public persons gathered there and the accused was given beatings by the public. However, PW3 and Ct. Vimal after much efforts, got rescued the accused with the help of public persons. Ct. Vimal gave information at the police post. IO ASI Daya Kishan along with two constables came on the spot. Accused Shahzad was handed over to the IO with open buttonactuated knife which he had waived towards them and public. IO recorded statement of PW3 vide Ex.PW3/A. PW3 showed the FIR No. 19/07; State Vs. Shahzad Page 8 of 27 fingers of his hands which appeared to be deformed. PW3 was taken to BJRM Hospital for medical examination where his MLC Ex PW3/B was prepared. Accused Shahzad was arrested and his personal search was conducted vide memos Ex.PW3/C & Ex.PW3/D. IO prepared the sketch of the knife recovered from the accused vide Ex.PW3/E. The knife was converted into parcel and seal of DK was affixed on the same and taken into police possession vide seizure memo Ex.PW3/F. PW3 had shown the spot to the IO. IO also recorded the statement of Inder Kant Pathak and Pramod Pathak who had helped them in getting the accused rescued from beatings given by the public persons. PW3 identified the knife Ex. PW6/P1 which accused was waiving and was recovered from him.
9. During crossexamination by Ld. Amicus Curiae, PW3 stated that he along with Ct. Vimal left PP Wazirpur at about 7 am for morning patrolling on foot and the departure entry was made by the DD writer but he could not recall its number. PW3 further stated that accused was overpowered at about 9 am. PW3 saw around 1015 persons when the accused was waiving knife. PW3 also stated that there were many jhuggis constructed at nearby places. PW3 further stated that house of accused was at a distance of about FIR No. 19/07; State Vs. Shahzad Page 9 of 27 800 meters to his estimation. PW3 also stated that nobody came forward to save him when the accused had bite on his left cheek. ASI Daya Kishan had reached with two constables at about 9.15 am. The writing work was done on the spot while sitting on the patri near the Canal, Madrasi Mandir. PW3 further stated that his statement was recorded on the spot. Ct. Surender took the rukka for registration of case at about 9.50 am and came back at around 11 am. PW3 remained at the spot upto 12 pm. PW3 left for the hospital at about 10 am. PW3 denied the suggestion that he along with Ct. Vimal had gone to the house of accused Shahzad at about 8 am and his hand came in between the iron door of his house and due to that reason he sustained injuries. PW3 further denied that accused was lifted from his house or that falsely implicated in this case. PW3 also denied that all the proceedings were conducted while sitting in the PS. PW3 further denied that no knife was recovered from the accused. PW3 also denied that they had taken away Rs. 4,000/ and one mobile phone Nokia 2300 from the house of the accused. PW3 stated that he was not aware if such type of knives were easily available in the market. PW3 further denied that knife was planted upon the accused to strengthen the case or that the accused had not made any disclosure statement. PW3 also FIR No. 19/07; State Vs. Shahzad Page 10 of 27 denied that accused had not given any teeth bite on his cheek or that he was deposing falsely.
10. PW3 who is the public servant / Ct. himself is the victim in this case and the accused caused injury i.e. the accused had bitten the cheek and fingers of PW3 who has also identified him. Even, the accused was apprehended at the spot. PW3 also identified the knife recovered from the accused. In this regard, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of FIR No. 19/07; State Vs. Shahzad Page 11 of 27 witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW3 has not only inspired the confidence but he is also trustworthy.
11. PW4 Dr. Shakuntala Rani, CMO, BJRM Hospital stated that on 08.01.2007 at about 9.30 am while she was present in the Casualty of BJRM Hospital as CMO, one injured namely Ct. Rama Rao with alleged history of human bite and assault was initially examined by Dr. Raquif (J.R.). She identified the handwriting and signatures of Dr. Raquif on the MLC Ex. PW3/B. On local examination following injuries were found on the person of the injured:
i. Clean lacerated wound measuring 2.5 cm x .3 cm, it was rounded wound over left side of cheek (face). ii. Clear sharp cut amputated wound on middle finger of his left hand, half of the distal digit upto back of nail bed. iii. CLW measuring 3 cm x .5 cm of index finger of the right hand.
After treatment, PW3 was referred to Ortho S.R. for further management and treatment. PW4 also identified the handwriting and signatures of Dr. Yashwant Singh, Ortho, SR. On the basis of the injury, Dr. Yashwant Singh had opined injury FIR No. 19/07; State Vs. Shahzad Page 12 of 27 sustained by injured Ct. Rama Rao as grievous in nature at portion M & N. PW5 Sh. Babu Lal, ACP (HQ), PCR, Model Town stated that in the year 2007, he was SHO, P.S. Ashok Vihar. Ct. Rama Rao was working under him. On 08.01.2007, Ct. Rama Rao was assaulted by accused Shahzad while he along with Ct. Vimal were performing the official duty in police uniform, on the pavement of Haryana Canal near Madrasi Mandir, J.J. Colony, Wazirpur, Delhi. PW5 had made the complaint under sec. 195 Cr.P.C. as Ex.PW5/A. During crossexamination by Ld. Amicus Curiae, PW5 denied the suggestion that he had not given any complaint u/s 195 Cr.P.C. as deposed by him.
12. PW6 Ct. Vimal stated that on 08.01.2007, he was posted at P.P. Wazirpur J.J. Colony under P.S. Ashok Vihar. On that day, he along with Ct. Rama Rao were on patrolling in the area of police post. At about 8.38 am, they reached EBlock Chowk, J.J. Colony where one passerby public person informed them that one boy having open knife with him was disturbing the passersby at Haryana Nahar Pavement, near Madrasi Mandir. On this information, PW6 along with Ct. Rama Rao reached the aforesaid place and saw that accused (correctly identified) was present there and was having open knife in his hand and waiving the same in air FIR No. 19/07; State Vs. Shahzad Page 13 of 27 and saying to the public persons that whatever they were having, give it to him and was searching them. PW6 and Ct. Rama Rao warned the accused. They both were in police uniform. The accused showed knife towards them and told that if they would try to reach near him, the result would not be good (anjam thik nahi hoga). With the help of their dandas, they managed to overpower him. All of a sudden, accused gave teeth bite on the left side chick of Ct. Rama Rao. When Ct. Rama Rao tried to save himself, accused took his right hand finger in his mouth and pressed with his teeth. When Ct. Rama Rao tried to save with his left hand, he took the middle finger of left hand of Ct. Rama Rao inside his mouth and gave teeth bite. Despite his best efforts, Ct. Rama Rao could not take out his finger from the mouth of the accused. PW6 saw the upper portion of his finger was cut out. Accused threw the upper portion of the finger of Ct. Rama Rao immediately in the nearby water canal. Thereafter, many public persons gathered there and the accused was given beatings by the public. Thereafter, PW6 and Ct. Rama Rao after much efforts, got rescued the accused with the help of public persons including one Inder Kant Pathak and Pramod Pathak. PW6 gave information at the police post and IO ASI Daya Kishan along with two constables came on the spot. Accused FIR No. 19/07; State Vs. Shahzad Page 14 of 27 Shahzad was handed over to the IO with open buttonactuated knife which he had waived towards them and public. IO recorded statement of Ct. Rama Rao and prepared the sketch of the knife recovered from the accused vide Ex.PW3/E. The said knife was converted into parcel and seal DK was affixed on the same and taken into police possession vide seizure memo Ex.PW3/F. After use seal was handed over to PW6. PW6 and Ct. Rajender had gone to BJRM Hospital with written request of IO for medical examination of Ct. Rama Rao. At about 9.50 am, Ct. Surender was handed over the rukka for registration of FIR. IO prepared the site plan with the assistance of PW6. Accused was arrested and his personal search was conducted vide memos Ex.PW3/C & PW3/D respectively. Accused made a disclosure statement vide Ex.PW6/A. Public witness Pramod Pathak also signed the memos. PW6 further deposed that accused Shahzad had used force against them and assaulted Ct. Rama Rao while they were performing their official duty. PW6 identified the button actuated knife as Ex. PW6/P1 which accused was waiving and was recovered from him.
13. In crossexamination conducted by Ld. Amicus Curiae, PW6 stated that he along with Ct. Rama Rao left the PP Wazirpur at about 7 am for morning patrolling on foot and the departure entry FIR No. 19/07; State Vs. Shahzad Page 15 of 27 was made by the DD writer but he could not recall its number. Accused was overpowered at about 9.00 am. At around 1020 people had collected on the spot including ladies and kids. PW6 had given message through beat net. ASI Daya Kishan had reached with two constables at about 9.15 - 9.20 am. The writing work was done on the spot while sitting on the patri near the Canal. Statement of PW6 was recorded on the spot. PW6 further stated that Ct. Rama Rao was taken to the hospital at about 10 am and his injury was got wrapped with hanky. Ct. Surender came back to the spot after registration of case after 10.30 am. PW6 further stated that he had signed arrest memo, personal search memo, disclosure statement, sketch of knife and its seizure memo. PW6 remained on the spot till 11 am. PW6 denied the suggestion that he along with Ct. Rama Rao had gone to the house of accused Shahzad at about 8 am and the hands of Ct. Rama Rao came in between the iron door of his house and due to that reason he sustained injuries. PW6 further denied that accused was lifted from his house falsely implicated in this case. PW6 also denied that all the proceedings were conducted while sitting in the P.S. PW6 further denied that no knife was recovered from the accused. PW6 also denied that they had taken away Rs. 4,000/ and one mobile phone Nokia 2300 from FIR No. 19/07; State Vs. Shahzad Page 16 of 27 the house of the accused. PW6 showed his ignorance if such type of knives were easily available in the market. PW6 further denied that knife was planted upon the accused to strengthen the case or that the accused had not made any disclosure statement.
14. PW8 Dr. Shipra Rampal, JR. Specialist, BJRM Hospital stated that on 08.01.2007, she was working as Radiologist at BJRM Hospital. On that day, she had examined the Xray plate of Rama Rao, male 45 years which was conducted as per direction given in MLC no. 24542 Ex. PW3/B. After examination of the MLC, PW8 had given the opinion of amputation of distal phalanx of middle finger of left hand. PW8 also saw the report Ex. PW8/B in her handwriting and bearing signature and the Xray plate (2 in number) PW8/A brought by the Record Clerk of the hospital. PW9 W/HC Vijay Laxmi stated that on 08.01.2006, she was posted at P.P. Wazirpur J.J. Colony under P.S. Ashok Vihar and recorded DD no. 21 vide Ex.PW9/A. During crossexamination PW9 denied the suggestion that aforesaid DD was fabricated later on or that he was deposing falsely. PW10 HC Rajesh is the MHCM of PS Ashok Vihar and he proved entry no. 3335 of register no. 19 vide Ex.PW10/A.
15. PW11 HC Surender stated that on 08.01.2007, he was FIR No. 19/07; State Vs. Shahzad Page 17 of 27 posted at P.P. Wazirpur J.J. Colony under P.S. Ashok Vihar and on receipt of information, he reached the spot i.e Haryana Canal, near Madrasi Mandir, J.J. Colony, where he found IO ASI Daya Kishan, Ct. Vimal, Ct. Rajender and Ct. Rama Rao (who was in injured condition having injury on his cheek and finger of both hands). Accused Shahzad (correctly identified) was also present there and he was also injured. Ct. Rama Rao handed over one button actuated knife in open condition which was stated to be recovered from accused Shahzad. IO prepared the sketch of knife vide Ex. PW3/E. IO converted the same into parcel and affixed seal of DK on it and took the same into police possession vide memo already Ex. PW3/F. After use seal was handed over to Ct. Vimal. Public witness Inder Kant Pathak and Pramod Pathak were also present there. IO recorded the statement of Ct. Rama Rao and handed over the rukka to PW11 after endorsement at about 9.50 am for registration of FIR. Ct. Rajender was sent for medical examination of Ct. Rama Rao at BJRM Hospital. PW11 returned to the spot and handed over the copy of FIR and original rukka to the IO. Accused Shahzad was arrested and his personal search was conducted. Accused gave a disclosure statement vide Ex.PW6/A. PW11 in crossexamination stated that he reached the spot at about 9.05 am FIR No. 19/07; State Vs. Shahzad Page 18 of 27 on foot. IO prepared the sketch of the knife on the spot while standing. PW11 returned to the spot at about 11.00 am after registration of FIR. PW11 stated that his statement was recorded by the IO on the spot and statements of public witnesses Inder Kant Pathak and Pramod Pathak were also recorded on the spot. Accused was also taken for medical examination. PW11 denied the suggestion that accused was beaten up by the police officials. He volunteered that accused was beaten by the public. PW11 further denied that no knife was handed over by Ct. Rama Rao in his presence. PW11 also denied that knife was planted upon the accused in the police station. PW11 denied that no rukka was taken by him at P.S. or that he was deposing falsely at the instance of the IO.
16. PW12 HC Rajender stated that on 08.01.2007, he was posted at P.P. Wazirpur J.J. Colony under P.S. Ashok Vihar. On that day, on receipt of DD No. 21 at about 9 am, he reached the spot i.e Haryana Canal, near Madrasi Mandir, J.J. Colony with IO ASI Daya Kishan and found Ct. Vimal and Ct. Rama Rao (who was in injured condition having injury on his cheek and finger of both hands). Accused Shahzad (correctly identified) was also present there. Two public witnesses namely Inder Kant Pathak and Pramod FIR No. 19/07; State Vs. Shahzad Page 19 of 27 Pathak were also present there. Accused was also injured and was stated to have been beaten up by the public persons. Ct. Rama Rao handed over one button actuated knife in open condition which was recovered from accused Shahzad. IO prepared the sketch of knife vide Ex. PW3/E. IO converted the same into parcel and affixed seal of DK on it and took the same into police possession vide seizure memo Ex. PW3/F. After use seal was handed over to Ct. Vimal. IO recorded the statement of Ct. Rama Rao and handed over the rukka after endorsement at about 9.50 am to Ct. Surender for registration of FIR. PW12 took Ct. Rama Rao for his medical examination at BJRM Hospital with the written request of IO and returned to the spot. IO recorded statement of PW12 and statements of Inder Kant Pathak and Pramod Pathak at the spot who had also signed some of the papers. During cross examination, PW12 stated that he had reached at the spot at about 9.00 am on foot. IO prepared the sketch of the knife on the spot while standing on the patri near the Canal. PW12 further denied that no seal was handed over to Ct. Vimal by the IO in his presence. PW12 also denied that no knife was handed over by Ct. Rama Rao to the IO in his presence. PW12 further denied that knife was planted upon the accused in the police station or that all the FIR No. 19/07; State Vs. Shahzad Page 20 of 27 proceedings were conducted in the P.S. PW12 took Ct. Rama Rao to the BJRM Hospital at about 10.30 am. PW12 could not recall the exact time when he came back to the spot after medical examination of Ct. Rama Rao. PW12 denied that he was deposing falsely at the instance of the IO.
17. PW13 ASI Daya Kishan stated that on 08.01.2007, he was posted as ASI at PP Wazir Pur, JJ Colony, PS Ashok Vihar. On that day, on receipt of DD No. 21 at about 9 am, he along with Ct. Surender, Ct. Rajender reached the spot i.e near patri of Haryana Canal, near Madrasi Mandir, J.J. Colony, Wazirpur, Delhi, where Ct. Rama Rao and Ct. Vimal met him. At that time, Ct. Rama Rao was in injured condition having injury on his cheek and finger of both hands. Accused Shahzad (correctly identified) was overpowered by the Ct. Rama Rao and Ct. Vimal at the spot. Two public witnesses namely Inder Kant Pathak and Pramod Pathak were also present there. Accused was also having injuries and was beaten up by the public persons. Ct. Rama Rao handed over one button actuated knife in open condition to PW13 which was recovered from accused Shahzad. PW13 prepared the sketch of knife vide Ex. PW3/E. Knife was measured and total length of knife was 24 cm and blade of it was 11 cm. Knife was kept in a pullanda FIR No. 19/07; State Vs. Shahzad Page 21 of 27 by PW13 and pullanda was sealed with the seal of DK and was taken into possession vide seizure memo already Ex. PW3/F. After use seal was handed over to Ct. Vimal by PW13. PW13 recorded the statement of Ct. Rama Rao vide Ex. PW3/A and he made endorsement Ex. PW13/A and prepared rukka and handed over the same to Ct. Surender at about 9.50 am for registration of FIR. PW13 prepared the site plan Ex. PW13/B at the instance of Ct. Vimal. Ct. Rajender took Ct. Rama Rao to BJRM Hospital for his medical examination. In the meantime, Ct. Rajender along with Ct. Rama Rao returned to the spot from the hospital after medical examination and Ct. Rajender handed over the MLC of Ct. Rama Rao to PW13. Accused was arrested vide arrest memo Ex. PW3/C and his personal search was also conducted vide memo Ex. PW3/D. On interrogation, accused made a disclosure statement Ex. PW6/A. PW13 obtained the result on the MLC of injured Ct. Rama Rao and also obtained a complaint u/s 195 Cr.P.C Ex. PW5/A. After completion of investigation, PW13 handed over the case file to SHO, PS Ashok Vihar and he filed the charge sheet against accused Shahzad. PW13 identified the knife Ex. PW6/P1 which was produced by Ct. Rama Rao to him.
18. During crossexamination by Ld. Amicus Curiae, PW13 FIR No. 19/07; State Vs. Shahzad Page 22 of 27 stated that on 08.01.2007, on receipt of DD no. 21, he reached at the spot around 9.15 am on foot. PW13 further stated that they all were in uniform. PW13 stated that place of incident was a thickly populated area. PW13 further stated that when they reached there at the spot, 15/20 public persons were present there. All the writing work was done by PW13 while sitting on the patri near Haryana Canal. Sealing material was available in IO Bag. Ct. Surender came back to the spot after registration of the FIR at about 11.00 am. PW13 stated that Ct. Rama Rao was sent for medical examination to BJRM Hospital after 11.00 am. No public person was joined at the time of recording the disclosure statement of the accused. All the memos were prepared by PW13 in his own handwriting. PW13 denied the suggestion that accused was lifted from his house. He also denied that no knife was recovered from his possession or it was planted upon the accused in the PS. PW13 also denied that all the proceedings were conducted while sitting in the PS. PW13 further denied that accused was mercilessly beaten by them or that he has received severe injuries on the body i.e. fracture of both the legs, one tooth was broken and cut mark on the left side of abdomen. PW13 also denied that they had taken away Rs. 4,000/ and one mobile phone nokia 2300 from the house of the FIR No. 19/07; State Vs. Shahzad Page 23 of 27 accused. He denied that no disclosure statement was made by the accused. PW13 further denied that Ct. Rama Rao and Ct. Vimal had gone to the house of the accused Shahzad at about 8.00 am for lifting him or that hand of Ct. Rama Rao came between the iron door of the house of the accused or due to that reason, he sustained injuries. PW13 further denied that a false case was registered against the accused in order to save the erring police officials or that he did not conduct fair investigation in this case. PW13 also denied that he was deposing falsely being the IO of the case. PW13 also denied that complaint u/s 195 Cr.P.C was falsely obtained against the accused or that he manipulated the statements of the public witnesses.
19. DW1 Dr. Shipra Rampal, Radiologist, Junior Specialist, BJRM stated that on 07.02.2007, while working in BJRM Hospital, she examined the XRay plate of Shahjad vide MLC no. 24825 of left leg (No. 136) and of right ankle (No. 137). After examination, she opined no bone injury noted in each XRay. She proved her report vide Ex.DW1/A. In crossexamination conducted by Ld. APP for State, DW1 stated that she had not noticed any injury on Shahjad. XRay of Shahjad was done on 08.01.2007.
20. The Ld. Defence counsel argued that the police has not FIR No. 19/07; State Vs. Shahzad Page 24 of 27 fairly investigated and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused cannot take the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this context, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w Section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
21. Let us further examine whether there are contradictions in the testimonies of PWs. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master FIR No. 19/07; State Vs. Shahzad Page 25 of 27 & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
22. The complainant is the natural witness who has identified the accused as the person who caused him injury with his teeth. Doctors have also proved the injury caused by the accused on the person of injured/ PW3. PW3 has correctly identified the accused. Accused showed knife to PW3, a public servant on duty. The accused gave teeth bite on the cheek of PW3 and also cut his finger and threw upper portion of his finger in nearby water canal. PW3 also identified knife. The Ld. Amicus Curiae for the accused cross examined PW3 but nothing has come out in the crossexamination of PW3 which could rescue the case of the accused. No evidence produced or even no witness examined by the accused that PW3 and PW6 had taken Rs. 4000/ and one mobile phone of accused. The injury of PW3 has been opined as grievous. PW6 also confirmed biting on the cheek and fingers of PW3 by the accused. DW1 / Doctor in her examinationinchief stated that no bone injury noted in XRay. During crossexamination DW1 also stated that she did not notice any injury on Shahzad.
23. In view of the my aforesaid discussion, I am of the FIR No. 19/07; State Vs. Shahzad Page 26 of 27 considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused guilty and convict him u/s 186/353/333 IPC and 25/27/54/59 Arms Act.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 23042013 FIR No. 19/07; State Vs. Shahzad Page 27 of 27