Delhi District Court
State vs 1. Mukesh @ Bittoo on 6 July, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ADDL. SESSIONS JUDGE-03 :
EAST DISTRICT : KARKARDOOMA COURTS : DELHI.
S.C. No. : 1655 of 2016
(I.D. No. : 02402R0018422009)
State Versus 1. Mukesh @ Bittoo
S/o Sh. Ram Prasad
R/o H.No. 310, Gali No.4,
Karawal Nagar, Delhi.
2. Manoj @ Bhura
S/o Sh. Satbeer
R/o 8/17, Khichripur, Delhi.
3. Chaman Ali
S/o Salimuddin
R/o H.No. B111112,
Khichripur, Delhi.
4. Sonu
S/o Sh. Raja Ram
R/o A239, Gali No.3, Rama
Garden, Karawal Nagar, Delhi.
SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 1 of 33
FIR No. : 317/08
Under Section : 186/353/307/34 IPC
Police Station : Kalyanpuri
Chargesheet Filed On : 19.01.2009
Chargesheet Allocated On : 23.04.2009
Chargesheet received by this Court on: 14.02.2014
Undersigned presided over this Court : 06.11.2017
Judgment Reserved On : 05.07.2018
Judgment Announced On : 06.07.2018
J U D G M E N T
1.The case of the prosecution, in brief, is that in the night of 19.10.2008 on receipt of DDs No. 4A & 8A, SI Raj Kumar along with Ct. Pradeep reached the spot i.e. Block no. 7 near a Temple, Khichripur, Delhi where they found Ct. Shridhar in an injured condition. SI Raj Kumar rushed the injured to Max Balaji Hospital after leaving Ct. Pradeep at the spot. He also recorded the statement of injured/complainant Ct. Shridhar and took into possession the service revolver of the injured and lodged a case u/s 186/353/307/34 IPC.
2. In his statement, the complainant Ct. Shridhar stated that he was posted with Police Station Kalyanpuri as constable and was working as Beat Constable at Khichripur in the night of 18/19.10.2008 from 12 midnight to 5 SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 2 of 33 am. On that day, he reached at Khichripur Colony Auto Stand along with his service revolver and at that time, an auto driver named Ricky of Auto Rickshaw bearing registration no. DL1RL1264 was also with him. For checking purpose, they reached at Som Bazar Road, Block8, Khichripur where a Bhagwati Jagran was organized. At about 1 am, he along with Ricky was present between Safeda Park and Block8 when he saw persons on one motorcycle coming towards their side. On suspicion, he gave them signal to stop but they did not. Thereafter, he started chasing them in the auto rickshaw and got them stopped in a gali of Block8 and after taking out the keys of their motorcycle, asked them to show the documents of the motorcycle and also asked about their identity. On this, all those boys started manhandling with him and also gave beatings to him. One of them, having long height and strong built boy, pointed out a pistol towards him and fired at him, two bullets hit him on his left and right thighs and one bullet hit him on the lower part of his right leg. In order to save himself, he also fired three shots from his service revolver on those boys on which, they all fled away from there on their motorcycle. Thereafter, he called the PCR from his mobile phone and the auto driver also informed about the incident to the police station. He, in injured condition, went towards Police Station upto 200 meters but after that, he fell down in Block7, near a Temple at Khichripur. Police reached there and took him to Max Balaji Hospital for treatment.
3. On the basis of said statement of complainant, a case u/s SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 3 of 33 186/353/307/34 IPC was registered. Ct. Brijesh has produced one motorcycle bearing no. DL7SAZ6001, which belongs to the assailants who assaulted Ct. Shridhar, which was identified by eye witness Ricky. One assailant Manoj @ Bhura was found admitted with GTB Hospital vide DD No. 8A who sustained bullet injuries on account of firing by Ct. Shridhar upon the assailants. After that, he was arrested. Accused Chaman Ali had surrendered himself before the court and he was arrested and a desi katta was recovered at his pointing out. Thereafter, remaining two accused Mukesh @ Bittoo and Sonu were also arrested. Exhibits were sent to FSL for inspection. After conclusion of the investigation, Chargesheet was filed against all the accused persons before the court of Ld. MM for the offences punishable under Sections 186/353/307/34 IPC.
4. After compliance of the provisions of Section 207 CrPC by the court of Ld. MM, case was committed to the Court of Sessions as Sec. 307 IPC is exclusively triable by it.
5. Vide order dated 17.04.2010, charge under Section 186/34; 353/34 and 307/34 IPC was framed against all these accused persons to which they pleaded not guilty and claimed their trial.
6. The Prosecution in support of its case, examined 34 witnesses in all however, only 33 witnesses were examined in total as inadvertently, Number 32 was not given to any witness :
CW1 Rakesh Tiwari, Record Clerk from STA, Mayur Vihar has brought the original record of motorcycle make Platina bearing SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 4 of 33 registration no. DL7SAZ6001 which was owned by Manish Dhawan vide Ex.CW1/A. PW1 Dr. Manoj Kumar, Emergency Physician, stated that on 19.10.2008, while he was posted with Max Balaji Hospital, examined patient Shridhar and prepared his MLC No. 782 Ex.PW1/A. PW2 Dr. S.K. Tiwari, Consultant Surgeon from Max Balaji Hospital, opined the injuries sustained by patient Shridhar as 'dangerous' at point X on Ex.PW1/A. He also proved his noting as Ex.PW2/A, PW2/B and PW2/C. PW3 Dr. P.K. Phukan, CMO, GTB Hospital, has proved the MLC No. A5078/08 of accused Bhura @ Monu as Ex.PW3/A. PW4 Ms. Sunaina Sharma, the then Ld. M.M. (East), has proved the TIP proceedings of accused Chaman Ali and Mukesh @ Bittoo who refused to join the TIP proceedings and relevant documents in this regard as Ex.PW4/A to PW4/G. PW5 HC Shridhar is the victim/complainant of present case who stated that he was posted in Police Station Kalyanpuri as Constable and on 18/19.10.2008, he was on night beat patrolling from 12 midnight to 5 a.m. in Khichripur area. At about 12.30 am, he reached at Khichripur Colony Auto Stand along with his service revolver and at that time, an auto driver named Ricky of Auto Rickshaw bearing registration no. DL1RL 1264 was also with him. After that, he started patrolling in the area with the said auto driver Ricky. At about 1 a.m., he alongwith Ricky reached at Som SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 5 of 33 Bazar Road, Block8, Khichripur for checking the Bhagwati Jagran at said block. He saw three persons on one motorcycle coming from the road between Safeda park and Block8, Khichripur. He gave signal to stop the motorcycle but they did not stop and ran away. Thereafter, he chased them in the auto rickshaw of Ricky and got them stopped in a gali of Block8, Khichripur and after taking out the keys of their motorcycle, asked them to show the ownership proof of the motorcycle Bajaj Platina no. DL7SAZ 6001 of black colour as their identity but all of them started manhandling with him and also beaten him with fist and leg blows. In the meantime, one boy had fired upon him with his pistol due to which, he suffered two bullets on his left and right thighs and one bullet on the lower part of his right leg.
He had hidden himself behind an Indica car but all of them came near Indica car and started firing continuously. In his self defence, he also fired three shots from his service revolver on those boys on which, after snatching the keys of motorcycle from him, they all fled away from there on their motorcycle towards NH24. The keys were snatched during quarrel by those boys before firing. Blood started oozing out from his injuries. Thereafter, he travelled upto 200 feet and tried to call the PCR and local police from his mobile phone. Ricky had already left with his auto rickshaw when firing started. SI Raj Kumar reached there within 10 minutes and took him to Max Balaji Hospital for medical treatment. On 25.10.2008, he was in Max Balaji Hospital and Ricky was also present there, when SI Raj Kumar along with one person and one Constable came and he identified that person as accused SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 6 of 33 Manoj @ Bhura who gave beatings to him.
PW6 Ricky is the eye witness of the incident who stated that he is an auto driver by profession and that he used to help the police officers who were patrolling in the area as at that time, crime rate was higher at Khichripur village area. He further stated that on the day of incident, he was standing at Kalyanpuri Bus Stand with his auto and at about 12 midnight, Ct. Shridhar came to him and he went for patrolling in his auto. PW6 narrated the entire incident as stated by PW5 HC Shridhar. This witness was declared hostile by Ld. Addl. P.P. and was cross examined at length wherein he corroborated his statement recorded under Sec. 161 CrPC.
PW7 HC Sahansar Pal has proved entries regarding deposit of various sealed parcels and one motorcycle and its superdginama and photographs vide Ex.PW7/A to PW7/F and PW7/G1 and PW7/G2.
PW8 ASI Jagmal, Duty Officer, has proved the FIR Ex.PW8/A. PW9 HC Rajesh stated that on 19.10.2008, he had reached at Max Balaji Hospital as per the instructions of ASI Raj Kumar and in his presence, ASI Raj Kumar recorded the statement of injured HC Shridhar and taken into possession his service pistol with two live cartridges and seized the same. The uniform of injured was taken into possession vide memo Ex.PW9/G. PW9 stated that at about 8.20 p.m., SI Raj Kumar had handed over the written tehrir and on his instruction, he got the FIR registered at police station and returned back to the spot alongwith original tehrir and SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 7 of 33 ruqqa. He further stated that Ct. Brijesh had also handedover one Platina motorcycle no. DL7SAZ6001 to SI Raj Kumar which was identified by Ricky as belongs to the accused persons. He along with SI Raj Kumar also went to GTB Hospital on information about admission of injured Bhura @ Monu. IO also took into possession clothes of Bhura @ Monu along with sample seal of hospital and MLC vide Ex.PW9/E. At GTB Hospital, after discharge of accused Bhura @ Monu, IO recorded his disclosure statement Ex.PW9/B; arrested and personally searched vide memo Ex.PW9/C and PW9/D and also prepared pointing out memo Ex.PW9/A. He has also proved the seizure memo of bullet taken out from the body of Ct. Shridhar as Ex.PW9/F. PW10 Insp. Rajesh Sinha, Incharge Crime Team (East), stated that on 19.10.2008, he received the message from Control Room and at 2 .m., reached at Block 7, Khichripur road near nallah and found that Ct. Shridhar had sustained bullet injuries. He has got photographed of the site through Ct. Ravinder. He has gone to the spot at Block8 where the bullets were fired upon Ct. Shridhar and found that in front of H.No. 84, one Indica car was found and also found one bullet mark on the left and right side mirror of the car and bullet mark on the wall of house below the height of car. On the road, he also found one live cartridge and its cover. He has got photographs of the spot as well. He had prepared the SOC report and handedover to the IO.
PW11 Ct. Narender has proved the photographs of empty SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 8 of 33 shell of cartridge and Indica car and the wall where the bullet was inserted as Ex.PW11/A to PW11/C. Witness stated that photographs Ex.PW11/D to PW11/G already Mark X he has not taken those photographs.
PW12 Ct. Pardeep Kumar stated that on receipt of information regarding bullet injuries sustained by Ct. Shridhar during quarrel with bad elements, he alongwith IO SI Raj Kumar and PW22 Ct. Om Prakash reached at Block7, near Temple, Khichripur and IO alongwith Ct. Shridhar visit to Max Balaji Hospital. They also met eye witness Ricky there and IO sent him alongwith Ricky to the spot i.e. Block8, Khichripur to safeguard the spot. He has proved the seizure memo of empty shell of bullet as well as its sikka vide Ex.PW12/A and blood, blood control earth and earth sample were seized vide memo Ex.PW12/B. PW13 Ct. Brijesh has proved the seizure memo of motorcycle no. DL7SAZ6001 vide Ex.PW13/A. PW14 SI Ombir Singh stated that on 19.10.2008, he along with Ct. Ram Milan (PW23) reached at GTB Hospital where accused Monu @ Bhura was found admitted. SI Ombir Singh collected the MLC of accused Monu @ Bhura and one sealed pullanda of his clothes and also guarded the accused in the hospital.
PW15 HC Ombir Singh stated that on 19.10.2008, on the instruction of IO, he had taken care of accused Bhura @ Monu who was inside the police lock up and having injury in his right feet.
PW16 HC Om Prakash and PW22 HC Om Prakash stated SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 9 of 33 that on 19.10.2008, they alongwith IO SI Raj Kumar went to the spot at Khichripur Block 8 where Ct. Shridhar was lying in injured condition. They took the injured in police vehicle to Max Balaji Hospital.
PW17 SI Sheopal has proved DD No. 4A regarding firing on a person by criminals vide Ex.PW17/A. PW18 Madan Mohan, Photographer, has proved the photographs Ex.PW11/A to PW11/G. PW19 Sh. Raj Kumar Tripathi, DHJS, has proved the documents regarding TIP proceedings of accused Manoj @ Bhura @ Monu who has refused to join the TIP vide Ex.PW19/A to Ex.PW19/F. PW20 Ct. Sanjay Kumar stated that on 22.10.2008, accused Bhura @ Monu was in Lock up of Police Station and a curtain was put on the Lock up. He took the charge of his duty from Ct. Nar Singh who asked him to keep accused muffled.
PW21 Ct. Kanti Prasad stated that on 24.10.2008, he along with IO SI Raj Kumar had gone to Karkardooma Courts where accused Bhura @ Monu was produced before the concerned court and from there, IO formally arrested and personally searched him vide memos Ex.PW20/A and PW20/B and recorded his disclosure statement Ex.PW20/C. Katta and cartridges got recovered by accused Chaman Ali vide Ex.PW20/D and its seizure memo Ex.PW20/E and pointing out memo Ex.PW20/F. PW24 HC Sunil Dutt has proved the arrest memo and disclosure statement of accused Mukesh @ Bittoo as Ex.PW24/A and SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 10 of 33 PW24/B respectively.
PW25 Ct. Shyam Singh has proved sketch of knife as Ex.PW25/A and its seizure memo as Ex.PW25/B. PW26 (Retd.) Insp. Ishwar Singh stated that on 26.10.2008, he had arrested accused Mukesh @ Bittoo in case FIR no. 314/08 u/s 302/307/120B/34 IPC and Section 25 of Arms Act, PS Gokalpuri and one country made pistol with two live cartridges were got recovered from his possession which were measured by him after preparing pullanda and same were seized by him. He also recorded disclosure statement of accused Mukesh @ Bittoo and sent information to Police Station in this regard vide DD no.37B. He has proved the FSL form and RC of country made pistol and two live cartridges recovered from accused Mukesh @ Bittoo as Mark PW26/A and PW26/B and its sketch and seizure memo Ex.PW26/A and PW26/B and disclosure statement of accused Mukesh in case FIR no.314/08 Ex.PW26/C. PW27 HC Upender Singh stated that on 01.11.2008, he along with IO SI Raj Kumar had produced accused Chaman Ali before concerned court of Ld. M.M. at Karkardooma Courts where accused had refused to join the TIP. IO had taken PC Remand of accused Chaman Ali and accused led them to bushes near ganda nallah, Block8, Khichripur from where he got recovered countrymade pistol and two live cartridges and the same were taken into possession by IO after sealing the same. Accused Chaman Ali has also pointed out the place of occurrence and thereafter accused was SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 11 of 33 brought to the police station where Ct. Shridhar identified him as one of the assailants who attacked on him.
PW28 Naresh Kumar, Sr. Scientific Officer (Biology) FSL, Rohini has proved his detailed biological and serological report Ex.PW28/A and PW28/B. PW29 V.R. Anand, Asstt. Director (Ballistic) FSL, Rohini has proved his detailed ballistic report of country made pistol and cartridges as Ex.PW29/A. PW30 (Retd.) Insp. Roshan Lal, the then SHO, has proved the complaint u/s 195 CrPC filed by him as Ex.PW30/A. PW31 Manish Dhawan is the registered owner of motorcycle bearing registration No. DL7SAZ6001 make Platina of black colour which he had given to Vikas for delivery purpose to which he used to pick from his office at 10 a.m. and used to deposit the same in his office at 6.30 7 p.m. and whenever, he used to be late, he used to take the said motorcycle with him. In the intervening night of 18/19.10.2008, he had taken the said motorcycle from him and Vikas told him that on that day he had gone to see Jagran from where the said motorcycle was taken by his known person for purchasing biri/cigarette. He has proved the copy of his PAN as Ex.PW31/A and seizure memo of motorcycle as Ex.PW31/B which was taken into possession by MHC(M).
PW33 SI Raj Kumar (inadvertently, no. 32 was not given to any witness) is the Investigating Officer of present case and conducted all SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 12 of 33 the proceedings. He has proved the ruqqa as Ex.PW33/A. He stated that after inspection of place of incident and place where Ct. Shridhar was found in injured condition at the instance of PW6 Ricky, he has prepared two site plans Ex.PW33/B and PW33/C. He has also proved arrest memo and personal search memos of accused Chaman Ali Ex.PW33/D and PW33/F, DD no. 80B dated 18.10.2009 Ex.PW33/F, DD no.8A dated 19.10.2008 Ex.PW33/G and DD no.4A dated 19.10.2008 Ex.PW33/H. PW34 Sh. R. Sathiya Sundaram, IPS, the then Addl. DCP (East), has stated that he accorded the sanction u/s 39 of Arms Act for prosecution against accused Chaman Ali and proved the sanction order in this regard as Ex.PW34/A. Thereafter, the prosecution evidence was closed.
7. The statements of the accused persons were recorded under Section 313 CrPC in which they denied all the incriminating evidence against them. They pleaded their innocence and further pleaded their false implication. The accused did not lead any evidence in their defence.
8. Ld. Addl. P.P. for the State argued that prosecution has been able to prove the charges through evidence of prosecution witnesses and recovery effected. He argued that there is no reason to disbelieve the testimony of the prosecution witnesses which are cogent and credible and there is sufficiently corroborated by material evidence. He further argued that accused persons failed to give any reasonable account for their false implication. He further submitted that there is nothing to disbelieve the testimony of other prosecution witnesses and the culpability of the accused SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 13 of 33 persons stands fully established. The chain of evidence in all respect to bring home the guilt of the accused persons and the accused persons are liable to be convicted as per the charges against them. Ld. Addl. PP, therefore, prayed for conviction, as per law.
9. Per contra, Ld. defence counsel argued that the prosecution has failed to bring home the guilt of the accused persons as per charges framed against them. Since, there are 37 witnesses cited in the list of witnesses out of them only 34 witnesses were examined by the prosecution and few of the material witnesses are left unexamined without assigning any reasons. The testimony of the complainant is full of contradiction and improvement which cannot be rely upon. PW5 HC Shridhar while cross examination, his demeanuor was observed by the court as several questions were put in the cross examination but he kept mum and did not respond to the same as such, adverse inference shall be drawn and benefit of doubt of the same shall be given to the accused persons. PW5 HC Shridhar in cross examination dated 29.07.2010 had not disclosed the name of the chowkidar who was accompanied with him at the time of patrolling in the intervening night of 18/19.10.2008. He has also not disclosed the specific date about the meeting of chowkidar prior to the incident. It is further argued by defence counsel that the prosecution alleged against the accused persons that on 19.10.2008 at about 1.00 am, at Som Bazar Road, Khichripur, Block8, Kalyanpuri, Delhi, the accused persons have obstructed HC Shridhar (PW5), complainant while he was on checking duty also deterring him from SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 14 of 33 discharging of public duty as well as causing bullet shot injuries upon him which would have been caused to his death. While he was on patrolling duty with the help of chowkidar and auto driver Ricky, he started patrolling in the said area and when he reached at Som Bazar, Block8, Khichripur for checking Bhagwati Jagran, he saw three boys coming on motorcycle and he gave signal to stop them but they did not stop there. He chased the said motorcycle with the help of auto of PW6 Ricky and the said motorcycle got stopped. He removed the keys of motorcycle from its ignition and asked them to show documents of ownership of the said motorcycle but they did not disclose their identity and also failed to give any ownership proof. Even though, they started manhandling with PW5. The said motorcyclists also started beating him with fist and leg blows and in the meanwhile, one boy fired with the pistol on him. He received three bullet injuries above the left side of his thigh, above the left knee towards thigh which was passing from the back of said place and the other bullet injury caused on the right side thigh. While crossexamination on this aspect, PW5 has given the answers to the most of the questions that "I do not remember", it shows the demeanor/conduct of the witness as well as also seems to be concealing the material facts or that he was not available at the spot at the time of alleged incident or, the adverse inference shall be drawn.
10. Ld. defence counsel further argued that the place of incident is thickly populated area and several public persons were available but Investigating Officer did not join any public witness even though, no legal SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 15 of 33 action has been taken against them who refused to join the investigation. In the entire list of witnesses, none of the public witness joined at any stage of investigation either at the time of recovery, apprehension of the accused persons, search or seizure proceedings which also create a doubt that the investigation was not fairly conducted. As such, prayed for acquittal of the accused persons.
11. Having heard the submissions of ld. counsels for the accused persons and ld. Addl. P.P. for the State as well as perused the material on record and the relevant provisions of law and the judgment cited.
12. To constitute an offence u/s 186 IPC, physical obstruction is necessary. Section 186 IPC is applicable to a case where the accused voluntarily obstructed the public servant in discharge of his duties but u/s 353 IPC, the ingredients of assault or use of criminal force while the public servant is discharging his duty is necessary. The quality of two offences is also different. If in the truth and substance, the offence in question fall in the category of section 195 CrPC. The complaint u/s 195 CrPC has been proved by PW30 Insp. Roshan Lal as posted as SHO of PS Kalyanpuri on 18/19.10.2008. He has filed a complaint vide Ex.PW30/A and the witnesses as cited in the present case, are witnesses cited in the said complaint. It is further argued that the provision of section 195 of the Code are mandatory and noncompliance would vitiate the prosecution and all other consequential orders. Section 195 (3) CrPC provided a pre condition for taking cognizance of the offence u/s 193 of the Code.
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13. After conclusion of the prosecution evidence, the statement of accused persons were recorded u/s 313 CrPC. All the incriminating evidence led by the prosecution, one after the other have been denied with the contention that they had not committed any crime as alleged nor caused any injuries to anyone. It is further submitted that no such recovery has been effected from either of them or at their instances, at any point of time. They do not wish to lead any defence evidence and accused Manoj who opted to lead defence evidence but he did not come forward to examine any witness in his defence.
14. The accused persons were facing the charges for the offence u/s 186/353/307/34 IPC whereas, alleged that all abovenamed accused persons in furtherance of their common intention obstructed HC Shridhar (PW5) while he was discharging his duties as public servant and also used criminal force upon him to deter him to discharge public duty as well with the common intention caused injuries upon him with such intention or knowledge and under such circumstances, if the said injury would have been caused death of aforesaid HC Shridhar on which, all accused persons have contested the claim and denied the charges.
15. The prosecution in all, to complete the chain of evidence in all respect, examined 34 witnesses including the complainant PW5 HC Shridhar, PW30 Inspt. Roshan Lal who lodged the complaint u/s 195 CrPC and PW34 Satya Sundaram, IPS who accorded the sanction u/s 39 of Arms Act for prosecution against accused Chaman Ali, SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 17 of 33
16. Before proceed to any definite conclusion, let we analyse the testimony of prosecution witnesses. The star witness of the case who lodged the complaint is PW5 HC Shridhar who testified in his examinationin chief, the story as narrated in the precedings paras as well as alleged charges levelled against the accused persons. He also testified that on the intervening night of 18/19.10.2008, he was posted as Beat Constable and was on patrolling duty in the Khichripur area and he was on night beat patrolling duty from 12 midnight to 5 a.m. in Khichripur area. At about 12.30 a.m. when he reached Khichripur colony Auto Stand with his service pistol, met auto driver Ricky of TSR no. DL1RL1264. After that he started patrolling with the help of auto driver and watchman. At about 1 a.m., he reached at Som Bazar road for checking Bhagwati Jagran, he saw three boys on a motorcycle coming. He gave them signal to stop but they ran way. He chased the said motorcycle with the help of auto of Ricky. He removed the keys of motorcycle from ignition and asked them to give the proof of ownership of the motorcycle but they started manhandling and beating him. In the meanwhile, one boy fired with the pistol towards him. He received three bullet injuries on the left side of thigh, above left knee towards thigh which was passing from back of said place and other injury on right side of thigh. He had hidden himself behind Indica car. He also proved his wearing uniform, as examined by FSL, which found a hole from the entry gate of the bullet on right left and back side of his pants. PW5 HC Shridhar also identified the black colour Bajaj Platina motorcycle no. DL SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 18 of 33 7SAZ6001 involved in the crime, one pistol 9 mm caliber and two used cartridges. While he was crossexamined by defence counsel, stated that he cannot tell the name and address of chowkidar who was accompanied with him for patrolling on the intervening night of 18/19.10.2008. He cannot tell the specific date about meeting of chowkidar prior to the incident. SI Raj Kumar brought him in Max Balaji Hospital where his statement was recorded.
17. PW5 HC Shridhar was also crossexamined by counsel on behalf of accused Manoj @ Bhura and Chaman Ali wherein he has stated that he do not remember the name of auto driver with whom he visited the area just previous day of incident nor he remember the name of other driver standing in the area though he was a Beat Officer. He also did not remember the exact date of the information given to SHO regarding abovesaid meeting but the same was given prior to 810 days of the incident. He had taken 34 auto drivers in different dates in patrolling prior to incident. On the day when he was patrolling with Ricky in his auto, no watchman was met them. He has made the entry regarding meeting held by him with auto driver and the watchman. He cannot tell the reason why he has not diverted the information to the Police station. He noted down the number of vehicle at the spot where it was stopped while chasing the motorcycle. He noticed fourth person who was standing at the side besides three persons. He had not described the presence of fourth person in his initial statement because he was nervous due to the gun shot. At the time of SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 19 of 33 giving of statement to the Investigating Officer, he was fully conscious. First firing started by the accused at a distance of 1015 feet away. All the four persons present had quarreled with him and one of them have been separated. The person who shot fire upon him was in ganda nallah side and in a second, all three persons had got away from him. It is further testified that after receiving the first gun shot injury, he told the assailants to stop fire. After receiving three gun shot injury on his body, he had hidden himself behind Indica car and then he took out his service pistol. The Indica car was standing at a distance of 810 feet away where the motorcycle was stopped and he removed the keys from motorcycle. He had hidden himself behind car i.e. dicky side of Indica car. Firing was coming from the driver side of Indica car. The keys were taken by assailants at the time of manhandling with him. The gun shot penetrated and hit the Indica car from driver side which was at a distance of 45 feet from the motorcycle. Ricky was watching the incident from his auto and had left the spot with auto after firing started. From the photograph Mark X, he shows that the place where the Indica car was found. There was no open field shown in the site plan rather at adjoining driver seat there were no houses nor small wall as he has described earlier. It is admitted that there is no mark of bullet on driver side of Indica car. The gun shot has been fired from inside the house. He had no place of hiding behind the dicky of Indica car. He has cross fire from the dicky side but he cannot explain how bullet hit the adjoining side of driver of Indica car at a distance of 15 feet away. His pistol contained 5 rounds.
SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 20 of 33 He fired 3 rounds at the time of incident. Accused persons had snatched keys of the bike from him before shooting. He cannot tell the exact time when SI Raj Kumar reached the hospital on 25.10.2008 but it was afternoon time. At that time, IO along with accused Manoj @ Bhura and one constable visited the hospital. He did not visit the Max hospital on 19.11.2008 but after 01.11.2008, he visited the Max hospital 45 times for the treatment. On 01.11.2008, he had identified accused Chaman Ali. After 19.11.2008, when he met SI Raj Kumar in the court, where he identified accused Mukesh @ Bittoo. He was not alloted any motorcycle by the government for patrolling. Some of the motorcycles were in the Police Station for patrolling. Generally two persons can go for patrolling on one motorcycle. On that night, no one had accompanied him for patrolling. On 15/17.10.2008, no police official was with him for patrolling. He did not remember whether he had patrolled the area on 15.11.2008. He had identified accused Mukesh @ Bittoo in the court, in November 2008 and on that date, he was on medical rest. He has been informed by the IO that he had to identify one of the accused and he was to produce in the court. He had not identified any of the accused in the court. It is denied that the road where the incident taken place was having street light. He has called by IO SI Raj Kumar by dialling from his mobile no. 9868273996 at noon time, stating that he has to identify accused Chaman Ali. It is further denied that he has been falsely implicated the accused persons in the present case and no accused person was present at the time of incident at the spot.
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18. PW6 Ricky stated that he used to help the police officials patrolling in the area so on 19.10.2008, he along with Shridhar went to the area where Jagran was going on in his auto. He reached near the Sabhyata park then HC Shridhar gave a signal to stop them but they did not stop. After that they reached at Bhagwati Jagran where found that three motorcyclists and HC Shridhar. After that they start manhandling with Shridhar. One of them fired at Shridhar perhaps on one side. Thereafter, he left from there alongwith his auto. He had reported to the PS about firing. Then went to Balaji Hospital where HC Shridhar was admitted to know his well being. He identified accused Manoj when he brought in the Max Balaji Hospital and HC Shridhar also identified him. PW also admitted that he had seen the incident in his auto. The suggestion made by the defence counsel have been denied by PW6 Ricky.
19. The complaint u/s 195 CrPC regarding the said incident for the offence u/s 186 IPC was filed by PW30 Insp. Roshan Lal vide Ex.PW30/A. In crossexamination, (PW30) Insp. Roshan Lal stated that he did not remember the date when the said complaint was filed and it is denied that Ct. Shridhar did not brief him or that the complaint has been filed by him on the false facts.
20. PW31 Manish Dhawan is the registered owner of motorcycle no. DL7SAZ6001 make Bajaj Platina of black colour. The said motorcycle was given to Vikas for delivery purpose. He used to pick the said motorcycle from his office at 10 am and deposited the same at around SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 22 of 33 6.30/7.00 pm. Whenever he used to come late from office, he used to take the said motorcycle with him. On the intervening night of 18/19.10.2008, he had taken the said motorcycle with him as disclosed by Vikas, he has gone to see Jagran on the said motorcycle and during that time, one of his known person had taken the said motorcycle from him for purchasing the biri/cigarette. He told to the police that he had no connection with those persons who had used the said motorcycle in the commission of the offence. In crossexamination on behalf of defence counsel, PW31 Manish Dhawan stated that he do not have any proof of employment of Vikas in October 2008. Though, he has brought the civil ledger/account of Vikas for the period 01.04.2008 to 31.03.2009 vide Ex.PW31/DX wherein name of Vikas was shown.
21. The other material witness is PW33 SI Raj Kumar, Investigating Officer, who has stated in his examination that the investigation was carried by him in fair manner and the documents were prepared during the course of investigation. While the witness was cross examined, he had denied the suggestion contradict to the charges framed against the accused persons as well the documents prepared during the course of investigation. It is also denied that he did not conduct fair investigation or that no recovery of weapon was effected or that the same was planted upon the accused persons.
22. So far as the weapon used by accused Chaman Ali for the commission of the offence and fired three bullets from the said pistol, the SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 23 of 33 sanction to prosecute him was accorded u/s 39 of the Arms Act by PW34 Sh. R. Sathiya Sundaram, IPS, the then Addl. DCP (East), vide Ex.PW34/A. There is nothing suggested in the crossexamination of PW34 Sh. R. Sathiya Sundaram by the defence counsel like that he has not applied his mind while granting the sanction u/s 39 of Arms Act Ex.PW34/A.
23. So far as the remaining witnesses as examined during the course of trial including the doctor who conducted the medical examination upon Ct. Shridhar. The said medical documents have been proved by PW1 Dr. Manoj Kumar, PW2 Dr. S.K. Tiwari who conducted the surgery upon patient Ct. Shridhar. He investigated the patient by sending blood test and Xray of particular area like thigh (both sides), pelvis, chest Xray. He also advised to get C.T. Scan of whole abdomen and pelvis and patient was operated and he found a bullet in right inferior gluteal area, bullet was also lying deep to deep fascia in gluteus muscle. The second finding of the injuries was there in the left side of ingiunoscrotal area; there was haemotoma in inguinal canal and around left testis. The third finding of the injuries, there were wounds on right thigh and left thigh on the lateral surface which were deep upto deep fascia. In his opinion, the injuries were "dangerous" at point X on Ex.PW1/A. PW3 Dr. P.K. Phukan who examined the accused/patient Bhura @ Monu @ Manoj brought with the history of gun shot injury vide MLC no. 5078/08 Ex.PW3/A prepared by Dr. Sumit having the injuries one circular wound at lateral 10 cm on right knee, one round wound at lower back of thigh 1.5 cm x 1.5 cm right side.
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24. Another important witness PW4 Ms. Sunaina Sharma, the then Metropolitan Magistrate, conducted the TIP of accused Chaman Ali. Accused Chaman Ali refused to participate in the TIP. The said refusal and TIP proceeding is Ex.PW4/B. On 21.11.2008, accused Mukesh @ Bittoo also produce for TIP before Ld. M.M. The said TIP was fixed at Central Jail no.8 on 16.12.2008 but he also refused to participate in the TIP proceedings. The said refusal to join TIP proceeding is Ex.PW4/F.
25. PW19 Raj Kumar Tripathi, the then Metropolitan Magistrate, also conducted TIP of accused Manoj @ Bhura on 22.10.2008, who also refused to join the TIP proceedings inspite of the warning. His statement and TIP proceedings are Ex.PW19/C and Ex.PW19/D.
26. The other witnesses as discussed in the preceding paras of judgment are police officials, photographer etc. who participate in the investigation from one way or the other.
27. After recording statement of the accused persons, none of the accused has opted to lead any defence evidence though they have denied any incriminating evidence led by the prosecution against them with the pretext that they are falsely implicated in this case and alleged recovery has been planted upon them.
28. Having discussed above, the proceedings conducted during the course of investigation, medical and scientific evidence as well as to consider the testimony of PW5 HC Shridhar which have been corroborated by PW6 Ricky. On the contrary, while crossexamining these witnesses by SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 25 of 33 defence counsel have not been cross examined on the material aspect as to the interference/obstructions by the assailants in discharge of the public functions as well as assault and used criminal force upon Ct. Shridhar by using the said force has fired and caused bullet injuries on the vital part of the body of injured/complainant. Surprisingly, the accused persons have led no defence evidence and stated that they have been falsely implicated by police while denying the recovery of motorcycle and weapon used for the commission of offence i.e. pistol. There is nothing on record placed either by parties to show that the complainant or any other police official have any enmity or grudge against them or that the accused persons have any criminal back grounds whereby any of the police official who was the witness of the incident or to the investigation, had ever been joined in the investigation or have deposed against the accused persons. Mere denial by the accused persons to the entire prosecution story though, it is in evident that PW5 HC Shridhar had sustained dangerous injuries i.e. three bullets were being taken out from his body after conducting the surgery. PW5 has testified in the deposition that he was on patrolling duty in the area assisted by PW6 Ricky and accused persons caused obstructions and use criminal force etc.
29. PW33 SI Raj Kumar as well as other police officials have authentically proved by oral and documentary evidence that PW5 HC Shridhar was on patrolling duty and discharging the public functions.
30. For attracting the provisions of the charges levelled against the SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 26 of 33 accused persons, which provided for voluntarily obstructed the public servant in the discharge of his duty, it must be shown that the obstruction or resistance was offered to public servant in the discharge of his duty by public functions as authorized by law. In case of Santosh Kumar Jain Vs. State, AIR 1951 SC 201, the issue was raised before the Appellate Court whether Section 186 IPC provokes and obstruction to the public servants acts which are in nexus of his official duty and functions but the Apex court has not decided the issue, because from the facts, it was found that the accused had in fact, obstructed the officer in carrying out the legal functions attached to his office, as a result, the court did not consider it necessary to go into the legal issue which was raised on behalf of the accused namely i.e. whether section 186 IPC confine in its applications only to obstruction to act as public servant which is part of his official function and duties or whether it covers at which are admittedly outside or in nexus of his official duties and functions, but which are done in good faith and in the honest belief that they form part of the official functions. Section 186 IPC laid down that there should not only be an obstruction to public officers in discharge of public functions but also such obstructions must be voluntarily where there is sufficient indication that force has been used if the peon having a warrant of attachment had persisted in adjudicating it, it is quite enough to constitute obstructions where the warrant in order and officer does not go beyond fulfillment of the instructions given to him in the writ, then to the public servant under offence punishable u/s 186 IPC.
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31. Section 353 IPC, the ingredients of assault or use of criminal force while the public servant is doing his duty as such is necessary. It is well established that section 195 of CrPC does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but it is not within the ambit of this section.
32. In order to prove the charges u/s 353 IPC, are that the accused assaulted or used criminal force to a public servant, that the public servant at the time of offence was in discharge of his duty imposed on him by law as such, public servant or that the offence was committed with intent to prevent or deter the officer from discharging his duty imposed on him by law. As such, or that he was committed in consequence of something done or attempted to be done by the public servant in the lawful discharge of his duties imposed on him by law. From the evidence on record and the other materials placed by the prosecution, PW5 Ct. Shridhar in his deposition categorically stated that the accused persons obstructed him while discharging his duty at the time of patrolling while he was alongwith PW6 Ricky. PW5 in his examination in chief stated that "On the intervening night of 18/19.10.2008, I was posted at beat constable in PS Kalyanpuri and was on night beat patrolling on that night in Khichripur area. At about 12.30 am, when I reached Kalyanpuri bus stand with his service pistol......... after that the said motorcyclist also started beating me with fist leg blows. In the meantime, one boy had fired with the pistol towards me. I told them to stop the firing but they did not stop firing. Due to firing, I received three SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 28 of 33 bullet injuries.....". In cross examination on behalf of accused persons, suggestion has been denied. Even testimony of PW5 has also been corroborated to it trustworthiness and truthfulness while stating by PW6 Ricky "..... they refused and after that started to manhandling with Shridhar. One of them standing there got fired Shridhar from the front side.....". In cross examination by Ld. Addl. P.P., it is admitted that all the three boys started beating Shridhar and one of them started firing upon Shridhar. In cross examination on behalf of the accused persons, there was no such suggestions were asked about the beating of PW5 though, it has been categorically denied that any such incident ever occurred in his presence or that he is a planted witness.
33. So far as attracting the provisions of Section 307 IPC, PW1 Dr. Manoj Kumar, PW2 Dr. S.K. Tiwari conducted the surgery and opined the injuries as dangerous. All the three injuries are bullet shot injuries. Two bullets were inserted in the thighs and other parts of the body i.e. inguinal canal. PW29 Sh. V.R Anand, Assistant Director FSL, has proved his opinion as Ex.PW29/A as the country made pistol .315 bore was test fire and the test fire cartridges compared and examined under comparison microscope model and found identical. Even in the crossexamination by defence counsel, it has been stated that countrymade pistol is tested by fastening on the bias (tool for testing) and regular/factory made pistols are tested by hands and had conducted the test by hand himself. PW33 SI Raj Kumar obtained the MLC of injured whereas described the nature of SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 29 of 33 injuries. HC Shridhar is not only an injured but also accused Manoj @ Bhura sustained the bullet injury from the shot fired by the complainant. Where a formidable weapon was used by the accused to assault the victim and that too on the hand of the victim on the consequence of his act that the injury was likely to prove fatal could be imputed to the accused, the circumstances spell out an attempt to commit murder punishable u/s 307 IPC where the accused shot at the victim from such a close range that it would seem that had it caused the death of victim, then, he would certainly have been guilty of murder, the guilt of the accused is thus quite clearly established from the plain reading of the section 307 and on the reasonable consequences, which must be assumed to flow from the act of shooting indulging in by him. Knowledge to this effect can legitimately be imputed to him. The intention or knowledge to death were apparent. The three bullets fired from the firearms by accused Chaman Ali with the intention or knowledge to cause death of PW5 HC Shridhar and the medical evidence is to the effect that the incise wound had been fatal to the victim if the victim has not been given timely medical help. The offence is punishable under section 307 IPC is to be formated. In this case, PW2 Dr. S.K. Tiwari had conducted the surgery/operations (exploration under anesthesia) found three bullets in different parts of the body and opined the injuries as 'dangerous' on Ex.PW1/A. There is nothing being suggested by the defence counsel to rule out his testimony and the document prepared during the course of surgery. The requirement of section 307 IPC is that the act must be done with such SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 30 of 33 intention or knowledge and under such circumstances that if the death be caused by that act, the offence of murder would have been committed and in the said consequence, the medical evidence shows that the nature of injuries were cumulatively dangerous to life then it tantamount that the accused has committed an offence under section 307 IPC. The accused Chaman Ali had fired upon PW5 HC Shridhar. The said firearm was recovered alongwith the cartridges which have been test fire in the FSL and the official from the FSL had given an expert opinion, therefore, it has come to the conclusion that the prosecution has been able to prove its case against the accused persons beyond all reasonable doubt.
34. To conclude, it revealed from the ocular and trustworthy evidence led by the prosecution the testimony of PW5 HC Shridhar in consonance with testimony of PW6 Ricky are corroborated and trustworthy which has not been rebutted or challenged through any other evidence either in defence or in the cross examination of prosecution witnesses. Therefore, all the accused persons namely Mukesh @ Bittoo, Manoj @ Bhura, Chaman Ali and Sonu are liable to be held guilty for the offences u/s 186/353/34 IPC.
35. The accused Chaman Ali has used with firearms and caused fatal injuries to PW5 HC Shridhar which is dangerous in nature and the said firearms have been found in his possession without any licence or permit and in contravention of provision of Arms Act, thereby convicted and held guilty for the offence u/s 307 IPC individually as well as the offence u/s 25/27 of the Arms Act, 1954.
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36. Though the charges u/s 25/27 Arms Act could not be framed inadvertently, as such, now the same has been editted and framed, for which, accused Chaman Ali had not pleaded guilty. So far as the evidence with respect to the charges u/s 25/27 of the Arms Act, the prosecution has already led the evidence by examining the number of witnesses and there is no defence evidence opted to be led by the accused on this account. Hence, there is no requirement of State to examine any of the witness. Though, the charges for possession, recovery and use of the pistol has integrated to the main charges. The documents i.e. sketch of pistol, cartridges, sanction etc. have already been on record and the same have been proved in accordance with law.
Conclusion :
37. From the aforesaid discussion and material on record as well as the deposition of the prosecution witnesses, the court has come to the definite conclusion that prosecution has been able to prove its case beyond all reasonable doubt against all the accused persons namely Mukesh @ Bittoo S/o Ram Prasad, Manoj @ Bhura S/o Satbeer, Chaman Ali S/o Salimuddin and Sonu S/o Raja Ram for the offences punishable u/s 186/353 IPC r/w Section 34 IPC. Hence, they are held guilty and convicted accordingly.
38. So far as the offence punishable under Sec. 307/34 IPC is concerned, nothing has come on record that accused Chaman Ali has fired a shot with common intention or in consultation or instigation of any of the SC No. 1655/16 State Vs. Mukesh @ Bittoo Etc. Page No.: 32 of 33 remaining accused persons. Even disclosure statement of the accused is silent on this aspect. Hence, all accused persons are acquitted of the offence punishable under Sec. 307/34 IPC but there is sufficient unimpeachable trustworthy evidence brought on record to bring home the guilt for the offence u/s 307 IPC to the effect that he did an act to wit with such intention and under such circumstances that if he by that act caused the death he would be guilty of murder and thus, is held guilty for the offence punishable under Sec. 307 IPC. Accused Chaman Ali S/o Salimuddin is also held guilty u/s 25/27 of the Arms Act, 1954 individually also.
Digitally signed by SATINDER SATINDER KUMAR GAUTAM
Announced in the open Court Date:
KUMAR GAUTAM +0530
2018.07.06 16:00:23
Dated : 06th July, 2018 (Dr. Satinder Kumar Gautam)
Additional Sessions Judge03 (East) :
Karkardooma Courts : Delhi.
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