Delhi District Court
State vs . on 29 May, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS)
SOUTHEAST: SAKET COURTS: NEW DELHI
SC No. 1394 of 16
State
Vs.
1. Vikas
S/o Sh. Omi Sharan
R/o 1329, PhaseI, Gautampuri,
Badarpur, New Delhi.
2. Ranjeet @ Rumal
S/o Sh. Jaswant Singh
R/o 1181, PhaseII,
Gautampuri, Badarpur,
New Delhi.
3. Arun
S/o Sh. Shyam
R/o 2013, PhaseI,
Gautampuri, Badarpur
New Delhi. .......... Accused
FIR No. 63/2012
PS : Badarpur
U/s. 307/324/323 IPC
Instituted on : 01.02.2013
Committed on : 30.04.2013
Argued on : 15.05.2019
Decided on : 29.05.2019
JUDGMENT
1 The brief facts of the prosecution case are like this. On 29.02.2012 DD No. 34A was received by SI Desh Raj upon which State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.1/28 he alongwith Ct. Jagdev reached at in front of Chowki, Gautampuri where they came to know that injured have been removed to Hospital. No eye witness found on the spot. DD No. 38A was received that injured Gulam Ghosh, Kasim, CCL 'A' and Hasim have been admitted to Trauma Center, AIIMS. Both of them went to AIIMS Trauma Center where injured Gulam Ghosh was found unfit for statement whereas other injured were found "fit for statement". 2 Statement of Mohd. Kasim was recorded to the effect that he is doing the job of AC Repairing. He goes to his workplace by motorcycle. Salman is working with him. On 29.02.2012 at 08:30 pm, he was coming back from his duty and reached at mor, Gautam Puri and parked his motorcycle. He dropped his friend for going to his house. Three boys were consuming liquor in front of the mor, Ali Mandir on red colour pulsar motorcycle of CCL 'A'. They were also abusing to one another. He told Salman that these boys are residents of his colony whose names are CCL 'C @ S', 'A' and Vikas. He knows them very well by face. Salman left the place. He started his motorcycle and in the meantime CCL 'C @ S' came there and started abusing him to which he objected. CCL 'C @ S' put one knife State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.2/28 like object on his waist. He got frightened and fled from the spot with his bike. He told about the incident in his house. He reached at Sabzi Mandi Gautam Puri. All of them also reached there. All of them caught him, his brother Hasim and cousin Gulam Ghosh who have reached Sabzi Mandi at that time. CCL 'A' exhorted the others by saying "maaro Saalo ko". CCL 'C @ S' hit him on the left thigh with knife and thereafter hit Gulam Ghosh with knife on the left side of the waist. All of them gave beatings to his brother Hasim. All of them fled from the spot. They were brought to AIIMS Trauma Center for medical treatment. All of them have done murderous assault on them. His statement led to registration of FIR. 3 During investigation site plan was prepared. The clothes of injured Gulam Ghosh and Mohd. Kasim were taken into possession.
4 The knife was recovered from the possession of 'C @ S' who was declared CCL during the course of investigation. On 01.03.2012 accused Vikas was arrested. On 21.03.2012 'A' was arrested who was declared CCL.
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.3/28 5 On 23.03.2012 statement of Gulam Ghosh was recorded who was declared fit for statement. He has also disclosed the names of accused Arun and Ranjeet. His brothers have not disclosed their names out of fear. Accused Arun was arrested. Accused Ranjeet remained at large who was declared PO during the course of investigation.
6 Accused Ranjeet was arrested in FIR No. 117/2012 PS, Defence Colony. He was arrested in this case. Statements u/s 161 Cr.PC were recorded. Investigation was completed and charge sheet u/s 307/34 IPC & 174A IPC was filed against accused. 7 The accused except Arun have put their appearance. The copy of the chagesheet was supplied to them. On 23.04.2013 the accused Arun has been declared proclaimed offender. The case was committed to the court of Sessions by Ld. MM vide order dated 23.04.2013.
8 On 09.01.2014 production warrant against the accused Arun was issued as he was in custody. Accused Arun was produced from custody. The charge under section 307/323/324/34 IPC was framed against all the accused whereas charge u/s 174A IPC was State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.4/28 also framed against the accused Ranjeet on 10.09.2014 to which they pleaded not guilty and claimed trial.
9 The prosecution has examined 14 witnesses. The prosecution evidence was closed. The accused were examined under section 313 CrPC. Their defence is of denial simplicitor. However, no defence evidence has been led.
10 It has come to the notice of the Court that supplementary charge sheet was filed against the accused Arun for the offence u/s 174A IPC but inadvertently charge for the said offence was not framed against him. On 04.04.2019 the charge for the offence u/s 174A IPC was framed against accused Arun. PW15 and 16 are examined. PE was closed. On 14.05.2019, the additional statement of accused Arun u/s 313 Cr.PC was recorded. However, no defence evidence was led.
11 PW1 Kasim, PW2 Hasim and PW3 Gulam Ghosh are the injured. PW10 SI Desh Raj has carried out the investigation of the case.
12 PW6 HC Baldhari has proved the FIR Ex.PW6/A and endorsement Ex.PW6/B on the rukka.
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.5/28 13 PW1 Kasim stated that in February, 2012 he alongwith his friend Salman was coming from his office on his motorcycle and reached at 08:30 PM at Mor, Gautam Puri, Mathura Road where Salman got down and left the spot. Three boys were consuming liquor by sitting on the motorcycle of CCL 'A'. He started his motorcycle. CCL 'C @ S' came there and abused him to which he objected and thereafter all of them gave beatings to him. One of them gave a blow with sharp knife like object in his head. CCL 'C @ S' was armed with knife. CCL 'A' fled on the motorcycle whereas Vikas and CCL 'C @ S' fled in a white colour Maruti Van. He called his brother Hasim after reaching at Sabzi Mandi and narrated the incident who advised him to go to PS. He reached near police post where accused, CCL alongwith 2 - 3 associates surrounded him. CCL 'C @ S' gave a stab injury on his left thigh. Gulam Ghosh came to save him upon which accused Vikas caught him from the backside and CCL 'C @ S' also stabbed him on the left side of the chest. His brother Hasim has also sustained injuries in the fight. He alongwith Gulam Ghosh has become unconscious and regained their consciousness in the hospital in the Trauma Center, AIIMS, New State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.6/28 Delhi. His statement Ex.PW1/A was recorded. He has identified the accused Vikas. The other person are not present in the Court. He has identified the knife. The permission to put leading questions was granted to the prosecution by my Ld. Predecessor. He stated that he was attacked by CCL 'C @ S', 'A' and Vikas. Ex.C5 & C6 bears his signatures at pointA though markA to D do not bear his signature. He was declared hostile and cross examined by Ld. Addl.PP for the State. The statement markE is read over to him and he is denied to have made such statement. During cross examination by accused Vikas he stated that Vikas was not known to him either by face or name prior to the date of incident. Vikas was not consuming liquor at that time. He has no enmity with any of the accused. He is confronted with his statement Ex.PW1/A in order to clarify as to which of the version i.e. the one before the police or made before the Court is correct to which he stated that version given to the police is correct.
14 Accused Vikas gave him beatings bylegs and fist blows. He has named Vikas as his name was told by the persons gathered on the spot. He has seen the accused Vikas for the first time after the State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.7/28 incident. The suggestion is denied that accused Vikas was not present at the time of incident or accused Vikas has made an attempt to mediate between him and CCL 'C @ S'.
15 He was recalled for cross examination as application u/s 311 Cr.PC of the accused Ranjeet and Arun was allowed. 16 During cross examination accused admitted that he has given true and correct version in the Court on 03.03.2015. 17 PW2 Hasim stated that on 29.02.2012 he has received a call from his brother Kasim that he has been beaten by CCL 'C @ S', 'A' and accused Vikas upon which he alongwith his cousin Gulam Ghosh reached at Sabzi Mandi, Gautam Puri where three boys came on red colour motorcycle. They have surrounded his brother Kasim. CCL 'C @ S' gave knife blow on the left thigh of his brother Kasim. Gulam Ghosh tried to save Kasim upon which 'C @ S' also stabbed Gulam Ghosh on the left side of the chest. He has sustained injuries on the right wrist. Kasim and Gulam Ghosh have lost their consciousness and regained it at Trauma Center, AIIMS. Statement of Kasim was recorded in the Hospital. He has identified accused Vikas. 'C @ S' and 'A' are CCL. The other accused are not present in State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.8/28 the Court. The permission to put leading questions to the prosecution was granted by my Ld. Predecessor. The suggestion is denied that accused Ranjeet and Arun are also involved in the incident. He has not disclosed their names to the police. The statement markF is read over to him and he has denied to have made statement to the police. 18 During cross examination by accused Vikas he stated that accused Vikas was known to him by name and face prior to the incident. He has reached at the place of incident on the receipt of call from his brother Kasim. He has reached within 10 minutes to Sabzi Mandi, Gautam Puri. CCL 'C @ S' has attacked Kasim and Gulam with knife. CCL 'A' has hit them with some pointed object. Accused Vikas has caught Kasim as well as Gulam Ghosh. There is no previous enmity between Kasim and accused Vikas. The suggestion is denied that accused Vikas has tried to mediate between him and CCL 'C @ S' and thereafter his brother has roped in the accused Vikas.
19 He was recalled for cross examination as application u/s 311 Cr.PC of the accused Ranjeet and Arun was allowed. State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.9/28 20 During cross examination accused admitted that he has given true and correct version in the Court on 03.03.2015. 21 PW3 Gulam Ghosh stated that on 29.02.2012 he was coming to his house from Okhla and reached at 08/08:30 PM at Sabzi Mandi Gautam Puri, where he saw his cousin Hasim and Kasim. CCL 'A' has caught Kasim and CCL 'C @ S' gave knife blow on the left thigh of Kasim. He tried to save them. He was over powered by accused Vikas and CCL 'C @ S' gave knife blow on left side of his chest. He become unconscious and taken to AIIMS, Trauma Center. All of them have sustained injuries. His statement was recorded by the police. He has identified the accused Vikas. 'C @ S' and 'A' are CCL. The other accused are not present in the Court. The permission to put leading questions to the prosecution was granted by my Ld. Predecessor. The suggestion is denied that accused Ranjeet and Arun are also involved in the incident. He has not disclosed their names to the police. The statement markG is read over to him and he has denied having made statement ot the police.
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.10/28 22 During cross examination by accused Vikas he stated that accused Vikas was not known to him by name prior to the incident. He knew him by face. Hasim was not accompanying him while he was returning to his house. Hasim met him on the spot. The name of CCL 'A' came to his notice through the crowd gathered on the spot. The suggestion is denied that accused Vikas has tried to mediate between him and CCL 'C @ S' and thereafter his brother has roped in the accused Vikas.
23 He was recalled for cross examination as application u/s 311 Cr.PC of the accused Ranjeet and Arun was allowed. 24 During cross examination by the accused he admitted that he has given true and correct version in the Court on 03.03.2015.
25 The application u/s 311 Cr.PC of accused Vikas to recall PW1 to 3 was allowed. They were not cross examined by Ld. Defence Counsel for the accused which is clear from the order sheet dated 22.02.2019.
26 PW4 Anuj Aggarwal, the then MM, stated that CCL 'C @ S' and 'A' were declared CCL by him vide order Ex.PW4/A & State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.11/28 Ex.PW4/B. 27 PW7 HC Vijender stated that on 01.05.2012 process u/s 82 Cr.PC of accused Ranjeet @ Rumal was handed over to him for execution upon which he visited at 1181, Gautam Puri, PhaseI, Badarpur where father of the accused met him who was told about the process. The father of the accused told that accused has left the house whose whereabouts are not known. He pasted the copy of process u/s 82 Cr.PC at the out gate of the house and pasted other copy at the notice board of the Saket Court Complex. His report is Ex.PW7/A. On 07.03.2012 he has gone to the house of accused to execute process u/s 83 Cr.PC where father of the accused met him who told that accused does not have any property in his name. The statement Ex.PW7/B of Yashwant Singh was recorded. He gave his report Ex.PW7/C. On 09.08.2012 he has deposed in the Court of Sh. Anuj Aggarwal, the then MM.
28 PW8 Ct. Asif Khan is a witness to the arrest of the accused Ranjeet Kumar. He has proved arrest memo Ex.C7 and disclosure statement Ex.PW8/A of the accused. State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.12/28 29 PW9 ASI Sumer has proved DD No. 34A Ex.PW9/A, DD No. 38A Ex.PW9/B and DD No. 43A Ex.PW9/C. 30 PW11 Dr. Rajender Kumar, Retd. Deputy Director, FSL Rohini stated that on 24.08.2012 three sealed parcels were received from SHO in this case. The parcels were sealed with seal DRS which were intact. The parcels were marked to him for examination. Parcel No. 1 was opened which contained one jean pant with belt having blood stains. Parcel No. 2 was opened which contained shirt, baniyan, pair of shocks and handkerchief Ex.2a to d and parcel No. 3 contained weapon of offence.
31 On biological examination blood was detected on Ex.1 whereas no blood was detected on Ex.2a to d. He has issued his report Ex.PW11/A. On serological examination human blood was detected on these exhibits. Blood group 'O' was detected on Ex.2A to D and blood ground 'O' was detected on Ex.1. He gave his report Ex.PW11/B. The remnants were sealed with seal of RK FSL. He has identified jean pant, green socks, khakhi colour baniyan, coco colour shirt, handkerchief, knive and one cloth piece with seal DRF. State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.13/28 32 PW13 SI Rajiv has verified the documents of CCL 'C @ S' from Govt. Boys Sr. Secondary School No. 3, Badarpur. He was declared CCL by the court and produced before the JJB. 33 PW14 Rajender Singh, Record Clerk, AIIMS Trauma Centre has been authorized to depose in the court by Dr. Tej Prakash Sinha, Faculty Incharge, Medical Record Section vide authority letter Ex. PW14/A. He has proved the MLCs Ex. C2C4 which have been prepared by Dr. Deepak Gupta and Dr. S. Raghvendra as both of them have left the services of the hospital. 34 PW10 SI Desh Raj stated that on 29.02.2012 DD No. 34A was handed over to him upon which he alongwith PW5 Ct. Jagdev went to Sabzi Mandi, Gautam Puri where they came to know that injured have been removed to Hospital. DD No. 38A was received by him regarding the incident of stabbing. He has received another DD No. 43A regarding admission of injured to Trauma Center, AIIMS upon which they went to hospital and obtained the MLC of injured. Mohd. Kasim was found fit for statement whose statement was recorded. Endorsement Ex.PW6/B was prepared. The blood samples of CCL 'A', clothes of injured Gulam Ghosh and State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.14/28 Kasim were sealed with seal of DRS and taken into possession vide memos Ex.PW5/A to C. The rukka was sent to Police Station through PW5 for the registration of case who came back after registration of FIR. He alongwith Mohd. Kasim came back to the spot and prepared site plan Ex.PW10/A at his instance. On 01.03.2012 accused Vikas, CCL 'A' and 'C @ S' were arrested on the identification of Mohd. Kasim. Arrest memos Ex.C5, Ex.PW5/B and E were prepared. The personal search memo of accused Vikas Ex.PW5/F was prepared. The weapon of offence was recovered at the instance of CCL 'C @ S'. The sketch of knife Ex.PW5/H was prepared. It was sealed in the pullanda and taken into possession vide fard Ex.PW5/I. The disclosure statement Ex.PW5/G of CCL 'C @ S' was recorded. He has recorded statements except that of Gulam Ghosh and Ct. Jagdev. The case property was deposited in the Malkhana. The further investigation was handed over to SI Rajiv. The accused Vikas is identified by him.
35 PW5 Ct. Jagdev has corroborated the version of PW10. He has identified knife Ex.P1, clothes namely one pair of green colour socks, khaki colour baniyan, coco colour shirt, handkerchief State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.15/28 (blood stained) Ex.P2 and blue colour jean pant Ex.P3. 36 PW12 SI Amit stated that on 20.03.2012 the further investigation of the case was handed over to him. He has recorded the statement of injured Gulam Ghosh and supplementary statements of Mohd. Kasim and Mohd. Hasim who disclosed about the involvement of accused Ranjeet and Arun in the incident. On 21.03.2012 accused Arun was arrested from near Metro Station Badarpur whose personal search and arrest memos Ex.C6 & Ex.PW12/A were prepared. Accused was got medically examined. Mohd. Kasim has identified the accused as one of the assailants. Statement u/s 161 Cr.PC of Mohd. Kasim was recorded. The disclosure statement Ex.PW12/B of accused Arun was recorded. The ossification test of accused Vikas was got conducted who was found in between 20 - 22 years old. The accused Ranjeet was arrested in some other case. He has moved an application for the production warrant. On 05.11.2012 accused Ranjeet was arrested with the permission of Court, whose personal search and arrest memos Ex.C 7 & Ex.PW8/A were prepared. Nothing incriminating was recovered from his possession. The accused was put to TIP who has refused to State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.16/28 join the TIP. The statements u/s 161 Cr.PC were recorded. The exhibits were sent to FSL. Charge sheet was prepared and filed in the Court.
37 PW15 Sh. Anuj Aggarwal & PW16 ASI Baldhari (the then HC) were examined again after the framing of charge u/s 174A IPC against the accused Arun.
38 PW15 Sh. Anuj Aggarwal the then MM stated that on 28.02.2013 he was MM01, SE, Saket Courts, New Delhi. On that day, he has issued to process u/s 82/83 Cr.PC against the accused Arun. On 18.04.2013 the process u/s 82/83 Cr.PC was received back and process serving Constable was called for 23.04.2013. On 23.04.2013 statement of HC Baldhari was recorded regarding execution of process u/s 82/83 C.PC which are already exhibited as PW1/A and PW1/2. The accused was declared PO vide order dated Ex.PW15/A. 39 PW16 ASI Baldhari stated that on 14.03.2013 process u/s 82 Cr.PC of accused Arun was handed over to him for execution upon which he went at House No. 2013, Gautam Puri, PhaseI, Badarpur, New Delhi. The house was found locked. The State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.17/28 whereabouts of accused were not known to the neighbours. He has pasted one copy of the process at the main gate of the house. The munadi was done in the locality. He has pasted other copy on the Court notice board. His report is Ex.P1 (Ex.PW1/A). On 17.04.2013 he has gone to execute the process u/s 83 Cr.PC at the given address. The accused was not traceable. No movable or immovalbe property was found in the name of accused. His report is Ex.P2 (Ex.PW1/2). On 23.04.2013 his statement Ex.PW16/A was recorded in the Court. During cross examination he stated that Munadi was not done with the beat of drums. He has not taken the signature of any witness to show that he has pasted one copy of the process on the spot and about munadi in the area. He did not take the photograph to show the pasting of the process u/s 82 Cr.PC. 40 Ld. Addl. PP for the State submitted that accused Vikas has fully participated in the commission of the crime and CCL 'C @ S' @ Surender has caused injuries to Mohd. Kasim and Gulam Ghosh by means of knife. He further submitted that injured Kasim has also sustained injuries in the incident. He further submitted that injuries were caused to the injured Gulam Ghosh with intention to State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.18/28 kill him. He further submitted that prosecution witnesses have fully corroborated the case of prosecution and reliance can be placed on their testimony to base the conviction of the accused. 41 Ld. Defence Counsel contended that the testimony of injured cannot be relied upon in the absence of corroboration from independent witnesses. She further submitted that PW1 is full of improvements. She further submitted that the prosecution has failed to prove that injuries were caused with an intention to kill the injured. She further submitted that names of the accused Arun and Ranjit have been introduced later on with the intention to implicate them in a false case. She further submitted that accused Vikas was not present on the spot. She further submitted that accused Ranjeet was not aware that any proclamation was issued against him as he was in custody. She further submitted that process u/s 82 & 83 Cr.PC cannot be issued together. She further submitted that procedure adopted by the Court to declare the accused Ranjit and Arun as PO is not in accordance with law.
42 Heard and perused the record.
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.19/28 43 PW1 Kasim is the complainant as well as victim. PW3 Gulam Ghosh is also the victim. PW2 Hashim has also sustained injuries. Their testimony is material to determine the guilt of the accused.
44 The testimony of PW1 clearly shows that in February, 2012 at around 08:30 PM he alongwith his friend Salman reached at Mor, Gautampuri, Mathura Road on his motorcycle where he dropped Salman. CCL 'C @ S', 'A' and accused Vikas were present there who were consuming liquor while sitting on the motorcycle of CCL 'A'. CCL 'C @ S' started abusing him to which he objected. All of them gave beatings to him and one of them gave a blow with sharp knife like object on the head. CCL 'C @ S' was having knife in his possession. He has denied the suggestion that accused Vikas was not present on the spot who has been falsely implicated. His testimony to this effect has gone unrebutted. 45 His testimony further shows that accused Vikas and CCL 'C @ S' fled in white colour Maruti Car where CCL 'A' fled on motorcycle and reached at Sabzi Mandi. He reached at sabzi Mandi and called his brother PW2 Hashim and narrated the incident who State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.20/28 told him to report the matter to the police. PW2 Hashim has corroborated this fact.
46 His testimony further shows that he reached near police post where CCL, accused Vikas and 2 - 3 associates caught him. CCL 'C @ S' stabbed him on the left thigh. PW3 tried to save him upon which accused Vikas caught PW3. CCL 'C @ S' stabbed him as well as PW3. PW2 has also sustained injuries. His testimony is corroborated by PW2. PW3 stated that he was crossing the subzi mandi when he saw that accused Vikas and CCL have caught PW1 & 2. CCL 'C @ S' has stabbed PW1 on the left thigh. He tried to save them. He was overpowered by accused Vikas. CCL 'C @ S' gave knife blow on the left side of the chest from which blood oozed out. He has corroborated the version of PW1 & 2. 47 Their testimony clearly shows that PW1, after reaching Subji Mandi, has narrated the incident to PW2. PW2 reached on the spot. PW3 also reached on the spot while crossing the subzi mandi and saw that accused Vikas and CCL have rounded up PW1 & 2. CCL 'C @ S' stabbed PW1. PW3 tried to save PW1. Accused Vikas has caught PW3. CCL C stabbed PW1 & 3. PW2 State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.21/28 has also sustained injuries. Their testimony to this effect is consistent.
48 The testimony of PW1 shows that name of accused Vikas was disclosed by the person present on the spot at the time of incident. The testimony of PW2 shows that accused Vikas was known to him by name and face prior to the incident. The testimony of PW3 shows that accused Vikas was known to him by face. It all shows that PW2 & 3 were familiar with accused Vikas prior to the date of incident so identity of the accused is clearly established. 49 All of them have denied the suggestions that accused Vikas was not present on the spot. It is for the accused to explain where he was present at the time of incident. His presence on the spot stands established from the testimony of PW1 to 3. 50 MLC Ex.C3 of PW1, MLC Ex.C2 of PW2 and MLC Ex.C4 of PW3 were admitted on 10.09.2014. PW14, Record Clerk has also proved the MLC. MLC Ex.C2 & C3 of PW1 & 2 shows that they have sustained simple injuries with blunt weapon whereas MLC Ex.C4 of PW3 shows that he has sustained grievous injuries with sharp edged weapon.
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.22/28 51 The knife was allegedly recovered by PW10 SI Deshraj and PW5 Ct. Jagdev at the instance of CCL 'C @ S'. The knife was allegedly recovered from under the stone near Kudedan. The recovery memo Ex.PW5/I bear the signature of PW1 as well as PW5 as recovery witness. PW1 has nowhere deposed that knife was recovered in his presence though he has identified the knife. PW10 has simply stated that knife was recovered at the instance of CCL 'C @ S'. PW5 has deposed about the place of the recovery of knife at the instance of CCL 'C @ S'. PW5 has not deposed about the date on which knife was allegedly recovered. The testimony of PWs to this effect is not consistent as such recovery of the knife become doubtful.
52 The testimony of PW1 shows that he was attacked by accused Vikas and CCL. He has nowhere deposed about the names of accused Ranjeet and Arun. He has denied the suggestion that accused Ranjeet and Arun have also given them beatings. The testimony of PW2 & 3 shows that accused Ranjeet and Arun are not involved in the incident and they have not mentioned their names to the police. PW1 to 3 have not deposed about the involvement of State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.23/28 accused Ranjeet and Arun in the incident. There is no other eye witness to the occurrence to show their involvement in the offence. 53 The accused Ranjeet was got declared PO during the course of investigation. NBW issued for 25.04.2012 has remained unexecuted. The process u/s 82 & 83 Cr.PC has been issued by Sh. Anuj Aggarwal, the then MM, SE, New Delhi. PW7 HC Vijender has executed the process u/s 82 Cr.PC Ex.PW7/A and u/s 83 Cr.PC Ex.PW7/C. His report is on the process u/s 82 & 83 Cr.PC. 54 There is nothing on the record to show that accused Ranjeet has concealed his presence so that warrant of attachment should not be executed. The process u/s 82 & 83 Cr.PC has been issued on 30.04.2012 for 08.06.2012. The procedure of Section 82 Cr.PC has to be followed prior to the issuance of process u/s 83 Cr.PC. It is only after the court is satisfied that process u/s 82 Cr.PC has been followed and the circumstances so warrant that Court can pass an order u/s 83 Cr.PC. This course has not been adopted the composite order u/s 82 & 83 Cr.PC is not permissible under the law. 55 Accused Arun has jumped the bail after the filing of charge sheet in the committal Court. NBW against the accused has State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.24/28 been issued which remained unserved. On 28.02.2013 process u/s 82 & 83 Cr.PC was issued against him with direction that the publication of process u/s 82 Cr.PC be also carried out in a newspaper having circulation in the area. There is nothing on the record that publication of process u/s 82 Cr.PC in the newspaper has been duly carried out. A composite order for issuance of process u/s 82 & 83 Cr.PC has been passed. The procedure of Section 82 Cr.PC has to be followed prior to the issuance of process u/s 83 Cr.PC. It is only after the court is satisfied that process u/s 82 Cr.PC has been followed and the circumstances so warrant that Court can pass an order u/s 83 Cr.PC. This course has not been adopted the composite order u/s 82 & 83 Cr.PC is not permissible under the law. Support is drawn from Crl. MC No. 4928/2018 tittled as Subhash Vs. State decieded on 04.10.2018 by Hon'ble Mr. Justice Sanjeev Sachdeva of our own High Court.
56 The proper procedure to declare PO qua the accused Ranjeet and Arun is not followed.
57 Section 307 IPC has been elaborately discussed in the case of "State of M.P. Vs. Imrat & Anr.," reported at (2008) 11 SCC State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.25/28 523, wherein it was observed:
12. To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."
State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.26/28 The determinative question is intention or knowledge, as the case may be, and not the nature of the injury sustained by the injured.
58 It is clear from the testimony of PW1 to 3 that CCL 'C @ S' was armed with knife. Their testimony further shows that CCL 'C @ S' has stabbed PW1. PW2 & 3 reached on the spot. PW3 tried to extricate PW1. Accused Vikas caught PW3. CCL 'C @ S' stabbed PW1 & 3. PW2 has also sustained injuries. Accused vikas has caught PW3 and thereafter injuries were inflicted to PW1 & 3. The act was done by several persons including accused Vikas. Section 34 provides that where a criminal act is done by several persons in furtherance of common of all, each of such person is liable for the act in the same manner as if it were done by him alone. There is active participation of accused Vikas in the commission of the crime. There was common intention on his part to commit the offence alongwith CCL. PW3 has sustained grievous injuries. The knife is a dangerous weapon of assault. The mens rea was followed by actus reus i.e. accused gave effect to his criminal intent. The mens rea was present. The testimony of PWs is consistent without any contradiction record. They have no enmity with the accused. State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.27/28 They are victims. They will not allow the real culprit to go scot free. Their testimony is convincing and same is relied upon. 59 Hence, I have no hesitation to hold that prosecution has failed to prove its case against the accused Ranjeet @ Rumal and Arun beyond shadow of reasonable doubt and accordingly are acquitted of offence charged.
60 Hence, I have no hesitation to hold that prosecution has proved its case against the accused Vikas beyond shadow of reasonable doubt and accordingly is held guilty u/s 307/324/323/34 IPC and convicted.
61 Let he be heard on quantum of sentence.
announced in the open court on 29th May, 2019 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi State Vs. Vikas & Ors. SC No. 1394 of 2016 Page No.28/28