Delhi District Court
State vs . Lalit on 30 March, 2016
FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 165/14 Unique Case ID No. 02404R0047562014 State Vs. Lalit S/o Sh. Diwan Ram R/o H.No. 101, Govind Mohalla, Haider Pur, Delhi. FIR No. : 20/14 Police Station : Alipur Under Sections : 186/353/332/307 IPC Date of committal to Sessions Court : 01.04.2014 Date on which judgment was reserved: 30.03.2016 Date on which Judgment pronounced : 30.03.2016 JUDGMENT:
1. The case of prosecution as mentioned in the chargesheet is as under:
(i). That during the intervening night of 09/10.01.2014 at about 12.20 am, intimation regarding quarrel between husband and wife at Gali No. 2, Alipur was received in PS. Same was recorded vide DD no. 2B (Ex.PW5/A) and was entrusted to ASI Satyavir (PW4). Accordingly, PW4 who alongwith Ct. Shanker (PW2) were already attending the call received vide DD no. 22A at 8.15 pm on 09.01.2014, rushed for attending State V/s Lalit ("convicted") Page 1 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 the said call. On the same day i.e. on 10.01.2014 at about 1.00 am, another intimation was received in PS Alipur from ASI Satyavir regarding assault on the neck of Ct. Shanker with cutter by Lalit at Gali No. 2, Shiv Mandir, Alipur, Delhi. Said intimation was recorded vide DD no. 3A (Ex.PW1/A) and same was entrusted to SI Dinesh Dahiya (PW14), who alongwith Ct. Jagdish (PW11) left for the said place;
(ii). It is further the case of prosecution that when the aforesaid police officials reached at the spot, ASI Satyabir handed over custody of accused Lalit who had assaulted on the neck of Ct. Shanker. HC Arif (PW9) removed Ct. Shanker to the hospital. After leaving Ct. Jagdish at the spot, SI Dinesh Dahiya alongwith ASI Satyabir went to SRHC hospital, where SI Dinesh Dahiya recorded statement (Ex.PW2/A) of Ct. Shanker. In his statement, Ct. Shanker claimed that when he alongwith ASI Satyabir had reached the place of information for attending call vide DD no. 2B, caller Sunita and PCR staff met them. After receiving brief information from the caller, he alongwith ASI Satyabir went to the room on first floor of the house, where accused Lalit was present. When he was interrogated, accused got agitated and assaulted on his neck with cutter, due to which he started bleeding. ASI Satyabir somehow over powered the accused State V/s Lalit ("convicted") Page 2 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 and also snatched the weapon of offence i.e. cutter from his hand and telephonically informed in the PS about the said incident;
(iii). It is further the case of prosecution that on the basis of said statement, FIR in question was got registered for the offences punishable U/s 186/353/307 IPC and investigation was entrusted to SI Dinesh Dahiya;
(iv). It is further the case of prosecution that SI Dinesh Dahiya arrested accused, prepared rough sketch of cutter and seized the same and also prepared rough site plan of the place of occurrence at the instance of ASI Satyabir and also got the scene of crime photographed. He also seized the relevant exhibit i.e. blood with the help of gauze piece lifted from the scene of crime and also seized blood sample and blood stained shirt of Ct. Shanker in the hospital. He also collected opinion regarding nature of injuries on MLC of victim as also the subsequent opinion with regard to the weapon of offence from concerned doctor. Thereafter, relevant exhibits were got deposited in FSL through Ct. Satish Kumar (PW10). He also collected PCR Form, etc. Complaint U/s 195 Cr.PC was obtained from concerned ACP and filed before the Court. After completion of the investigation, chargesheet was filed before the Court.
State V/s Lalit ("convicted") Page 3 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016
2. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
3. After hearing arguments on the point of charge, Court framed charge for the offences punishable U/s 186/353/332/308 IPC against the accused vide order dated 01.05.2014, to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as fifteen witnesses namely PW1 HC Balbir Singh, PW2 Ct. Shanker, PW3 W/Ct. Anita, PW4 ASI Satyavir Singh, PW5 Ct. Dharambir, PW6 ASI Surat Singh, PW7 Dr. Avdesh Bhagat, PW8 Sh. Rakesh Pandey, PW9 HC Arif, PW9 (sic) Sh. Ganshyam Bansal, PW10 Ct. Satish Kumar, PW11 Ct. Jagdish, PW12 HC Manoj Kumar, PW13 HC Surender and PW14 SI Dinesh Dahiya during trial.
5. Thereafter, statement U/s 313 Cr.PC of accused was recorded, during which incriminating evidence were put to him but he denied the same. The accused claimed his innocence. However, his defence is of general denial. He did not opt to lead DE in his defence.
6. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and Ld. counsel Sh. Vijay Kumar Adv. on behalf of accused. I have also gone through the material available on record.
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies State V/s Lalit ("convicted") Page 4 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 of prosecution witnesses examined during trial. PUBLIC WITNESS:
8. PW8 Sh. Rakesh Pandey: He deposed that on the intervening night of 09/10.01.2014 at about 12.30 am, he had heard the noise from outside his room and on hearing the said noise, he came out from his room and saw that door of the room of accused Lalit, was opened. He saw accused Lalit, his wife and two police officials were present near the room of accused Lalit. He also saw one police official in injured condition having injury over his neck.
During cross examination, he deposed that he did not know by whom and as to how the police official received injuries. He had remained at the place of occurrence for about 1015 minutes. No blood stains were lifted from the spot by any police official at that time. He had also seen accused Lalit in injured condition.
POLICE WITNESSES:
9. PW1 HC Balbir Singh : This witness was working as Duty Officer at PS Alipur on 10.01.2014. He deposed that on that day at about 1.00 am, information was received in PS that one person namely Lalit had attacked on the neck of Ct. Shankar with some cutter. He recorded the said information vide DD no. 3A. He proved copy of DD no. 3A as Ex.PW1/A. He also proved factum about recording of FIR in question on State V/s Lalit ("convicted") Page 5 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 the basis of rukka sent by SI Dinesh on 10.01.2014 at 3.15 am. He proved copy of FIR as Ex.PW1/B and also exhibited Certificate U/s 65B of Indian Evidence Act as Ex.PW1/C and his endorsement on the rukka as Ex.PW1/D. He has not been cross examined by accused despite grant of opportunity.
10. PW2 Ct. Shankar: He is the victim who was allegedly assaulted by accused as per the case of prosecution. He deposed on the lines of prosecution story during chief examination by narrating the entire sequence of facts which led to the incident in question.
He categorically deposed that it was accused Lalit who had assaulted him by giving blow on his neck with the help of some sharp edged cutter, due to which he bleeded profusely from his neck. He had received 89 stitches over his neck. SI Dinesh Dahiya had recorded his statement Ex.PW2/A in the hospital. The concerned doctor of SRHC hospital had collected his blood sample and had also taken his blood stained uniform shirt and sealed the same with the seal of SRHC Hospital. He also identified weapon of offence i.e. paper cutter having blood stains as Ex. P1 and his official uniform shirt as Ex.P2 during trial. He has been cross examined at length on behalf of accused.
11. PW3 W/Ct. Anita : She is the formal witness who had recorded information received in Control Room on 10.01.2014 at about 12:19:23 midnight from caller of mobile no. 9268152137 that husband had been giving beatings. She deposed that she had recorded the said State V/s Lalit ("convicted") Page 6 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 information in PCR form and proved copy thereof as Ex.PW3/A. She has not been cross examined by accused despite grant of opportunity.
12. PW4 ASI Satyavir Singh:This witness had gone alongwith victim Ct. Shanker for attending the call vide DD no. 2B. He also deposed on similar lines as testified by PW2 Ct. Shanker during chief examination.
He further deposed that he had managed to apprehend accused Lalit and also snatched cutter from his possession and thereafter, made call at PS Alipur informing Duty Officer about the occurrence. He also deposed that SI Dinesh Dahiya had prepared sketch Ex.PW4/A of said cutter and after preparing its sealed pullanda sealed with the seal of DK, had seized the same vide memo Ex.PW4/B. He further deposed that SI Dinesh Dahiya had lifted blood with the help of two cotton gauze from the scene of crime and after preparing its sealed pullanda, had seized the same vide memo Ex.PW4/C and had also arrested the accused vide memo Ex.PW4/D in his presence. He also deposed that IO had prepared site plan at his instance and had also seized two pullandas sealed with the seal of SRHC Hospital containing uniform shirt and blood sample of Ct. Shankar, vide memo Ex.PW4/F. He has also been cross examined at length on behalf of accused.
13. PW5 Ct. Dharamvir: This witness was working as DD Writer during relevant date & time. He deposed that on 10.01.2014, DD No. 2B was recorded by him at about 12.20 am in PS Alipur regarding State V/s Lalit ("convicted") Page 7 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 quarrel at Alipur Gali No. 2, in between husband and wife. The said information was sent to ASI Satyavir for necessary action. He proved copy of said DD entry as Ex.PW5/A. He has not been cross examined by accused despite grant of opportunity.
14. PW6 ASI Surat Singh:On receipt of call from Control Room, this witness being posted as Incharge of PCR Van Libra 61 during the intervening night of 09/10.01.2014 at about 12.19 am, had rushed to the place of information and met the caller namely Ms. Sunita at House No. 101, Govind Mohalla, Alipur, Delhi.
He deposed that caller had informed him that her husband Lalit had been residing with some girl in said gali. At about 12.47 am, ASI Satyabir and Ct. Shanker of PS Alipur reached there and after briefing them about the call and producing caller before them, they left the spot.
In his cross examination, he admitted that he did not meet accused till he remained at the spot.
15. PW9 HC Arif:This witness had gone to attend the call received vide DD no. 3A on 10.01.2014 at about 1.00 am regarding assault on the neck of Ct. Shanker by Lalit with a cutter.
He deposed that when he reached there, he found that accused had already been apprehended by ASI Satyabir and Ct. Shanker was bleeding from his neck. He immediately removed Ct. Shanker on his motorcycle to SRHC Hospital, where he was medically examined. SI State V/s Lalit ("convicted") Page 8 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 Dinesh Dahiya had visited the hospital at about 1.40 am and had recorded the statement of Ct. Shanker.
In his cross examination, he admitted that he himself did not see the incident in question. He did not visit the spot from the hospital.
16. PW9 Sh. Ganshyam Bansal: He was posted as ACP Sub Division Alipur during the relevant period. He deposed that after going through the material placed before him by IO of the case, he found that Ct. Shanker was performing his official duty on 10.01.2014. While he was discharging his official duty, accused Lalit had obstructed him. Thus, he prepared complaint U/s 195 Cr.P.C. Ex.PW9/A for prosecuting accused Lalit for the offence punishable U/s 186 IPC.
In his cross examination, he denied the suggestions that complaint Ex.PW9/A was prepared in mechanical manner without going through the relevant records or that no proper procedure was followed in filing the said complaint before the Court of law.
17. PW10 Ct. Satish Kumar: This witness deposed that on 24.01.2014 on the direction of IO, he had collected four sealed pullandas vide R.C. No. 4/21/14 from MHC(M) and deposited them in FSL, Rohini. He also deposed that he collected receipt regarding deposit of exhibits from FSL and handed over the same to MHC(M). He also deposed that the case property remained intact during his custody.
During cross examination, he could not disclose the description of seal with which pullandas were sealed. State V/s Lalit ("convicted") Page 9 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016
18. PW11 Ct. Jagdish: He deposed that on 10.01.2014, he had joined investigation of the present case with SI Dinesh Dahiya. On receipt of information regarding injury being caused to Ct. Shanker with a cutter, he alongwith SI Dinesh Dahiya reached at Gali no. 2, Shiv Mandir, Alipur at about 1.20 am. He also deposed that ASI Satyabir produced custody of accused and cutter of yellow colour before SI Dinesh Dahiya. After leaving him at the spot, SI Dinesh Dahiya had gone to SRHC Hospital and on returning back to the spot at about 3.00 am, had handed over rukka to him on the basis of which he got the FIR in question registered and came back to the spot. Thereafter, he had gone to SRHC hospital, where accused was got medically examined by him.
In his cross examination, he admitted that Ct. Shanker did not meet them at the spot, when they reached there. He also admitted that cutter was not seized by IO in his presence and also that official uniform shirt of Ct. Shanker was also not seized in his presence and blood stains were not lifted from the scene of crime in his presence.
19. PW12 HC Manoj Kumar:This witness was working as MHC(M) in PS Alipur during the relevant period. He deposed that on 10.01.2014, SI Dinesh Dahiya had deposited two pullandas sealed with the seal of DK, one pullanda sealed with the seal of SRHC Hospital and one sample seal of same specimen, in the Malkhana vide entry at serial no. 16 of Register No. 19. He proved copy of said entry as Ex.PW12/A. He further deposed that on 21.01.2014, he had handed over State V/s Lalit ("convicted") Page 10 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 one sealed parcel sealed with the seal of DK containing cutter, to IO SI Dinesh Dahiya for obtaining opinion from SRHC hospital. On the same day i.e. 21.01.2014, IO SI Dinesh Dahiya had redeposited the said parcel alongwith sample seal of same specimen in Malkhana. He had made endorsement against entry Ex.PW12/A in register no. 19.
On 24.01.2014, all the sealed pullandas alongwith sample seal were sent to FSL through Ct. Satish for obtaining opinion, vide RC no. 04/21/14. He proved copy of Road Certificate No.04/21/14 as Ex.PW12/B and copy of acknowledgment issued by FSL, Rohini as Ex.PW12/C. During cross examination, he admitted that time of deposit of exhibits in Malkhana was not mentioned by him. He could not disclose the time even during cross examination. He admitted that he had no personal knowledge regarding facts of the case and he had reproduced the contents of relevant seizure memo, in the relevant column of the entry made in register no. 19.
20. PW13 HC Surender: He is the formal witness who had produced Original Duty Roster of staff posted in police station in Alipur on 09.01.2014. He exhibited copy of relevant pages of said Duty Roster as Ex.PW13/A. He has not been cross examined by accused despite grant of opportunity.
21. PW14 SI Dinesh Dahiya: He is the IO of this case. He has deposed about the entire investigation carried out by him in this case. He exhibited DD no.3A as Ex.PW1/A, rukka as Ex.PW14/A, sketch of cutter State V/s Lalit ("convicted") Page 11 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 as Ex.PW4/A and site plan of the place of occurrence as Ex.PW14/B. He deposed on identical lines regarding investigation carried out by him, as deposed by PW4 ASI Satyavir Singh, PW9 HC Arif and PW11 Ct. Jagdish whose testimonies in brief have already been discussed in the preceding paras. He also exhibited that he had collected FSL results dated 29.05.2014 as Ex.PX and Ex.PY.
In his cross examination, he admitted that Ct. Shankar had no previous enmity with accused. He testified that Ct. Shankar was discharged from the hospital on the same night after medical treatment. He admitted that Ct. Shankar was opined fit for statement during the same night, when he had collected his MLC. When he was confronted with sketch Ex.PW4/A of cutter as also with the cutter Ex.P1 during cross examination, he admitted that total length of blade of said cutter was 3.8 cm. He admitted that said cutter was meant for cutting paper sheet etc. and was basically meant for stationery purposes and even vegetables/fruits could not be cut from said cutter. However, he denied the relevant suggestion put to him on behalf of accused.
MEDICAL WITNESSES:
22. PW7 Dr. Avdesh Bhagat: This witness had examined injured namely Ct. Shanker S/o Sh. Bhanwar Lal at SRHC Hospital on 10.01.2014 vide MLC No.103/14 Ex.PW7/A. He deposed that said injured was brought to the hospital by HC Arif Khan at about 1.31 am with alleged history of attack by blade while he was on duty. On his local State V/s Lalit ("convicted") Page 12 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 examination, said injured was suffering from incised wound 7 x 1 x 0.5 cm over his upper cervical area. After giving primary treatment, said injured was referred to S.R (Surgery).
During cross examination, he deposed that the cervical area of human being consists of skin and thereafter, soft tissues and then muscles and thereafter, comes blood vessels. The depth of the injury received by patient was only upto soft tissues. There was no injury in the muscles and blood vessels of said patient. He further deposed that since the injury was not a deep injury, he opined the nature of injury as simple. The injury as observed in MLC Ex.PW7/A, was not life threatening injury as no damage was caused to blood vessels of the cervical area of the patient. He also deposed that seeing the nature of injury in MLC Ex.PW7/A, the possibility of injury being self inflicted, could be ruled out.
ARGUMENTS ADVANCED & CASE LAW CITED
23. While opening the arguments, Ld Additional PP argued that prosecution has been able to establish the charges levelled against the accused beyond reasonable doubt. While so arguing, Ld. Additional PP referred to the testimonies of prosecution witnesses examined during trial, more particularly, the testimonies of PW2 Ct. Shankar and PW4 ASI Satyavir Singh. Ld. Additional PP further submitted that the accused has been duly identified by both the relevant police witnesses i.e. PW2 and PW4 during trial. He further argued that the official uniform shirt State V/s Lalit ("convicted") Page 13 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 (Ex.P2) as also the weapon of offence i.e. cutter (Ex.P1) have been seized during investigation and have been produced and identified by PW2 and PW4 during trial. He further submitted that PW2 Ct. Shankar was performing his official duty at the time of occurrence. He further submitted that accused had used criminal force against PW2 and tried to prevent him from discharging his official duty as public servant and also caused hurt to him by assaulting sharp edge cutter on neck of said witness. Thus, prosecution has been successful in establishing the guilt of accused for the offences charged against him in this case.
24. On the other hand, it has been argued by Ld. defence counsel that the prosecution has failed to prove its case beyond shadow of doubt. He argued that prosecution story is full of lies and there are several material contradictions appearing in the testimonies of prosecution witnesses, which create reasonable doubt in favour of the accused.
25. Firstly, I shall deal with the offences punishable U/s 186/353/332 IPC charged against the accused herein. It is needless to mention that in order to bring home the guilt in respect of offence punishable U/s 186 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from State V/s Lalit ("convicted") Page 14 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 discharging their public functions by the accused.
26. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C., without which no cognizance can be taken by the Court.
27. In the case in hand, it has been proved beyond doubt that PW2 Ct. Shankar was public servant within the meaning of Section 21 IPC and he was performing his official duty at the time of occurrence. PW1 has produced Roznamcha containing DD no. 3A (Ex.PW1/A) showing that police officials i.e. Ct. Shankar alongwith ASI Satyavir Singh had left for attending the call. Not only this, PW13 HC Surender has also produced Duty Roster of staff of PS Alipur, who were on duty on the date of incident i.e. 09.01.2014. Copy thereof has been exhibited as PW13/A. Perusal thereof would show that PW2 Ct. Shanker was on Emergency Duty from 8.00 pm of 09.01.14 to 8.00 am of 10.01.14.
28. No doubt, the prosecution has proved the complaint U/s 195 Cr.P.C. as Ex.PW9/A signed by PW9 namely Sh. Ganshyam Bansal who was posted as ACP of Sub Division Alipur during the relevant period. However, I find that there is no proper compliance of Section 195 (1) (a)
(i) Cr.PC in this case. The reason is quite obvious that the complaint U/s 195 Cr.PC Ex. PW9/A is not shown to have been filed in accordance with State V/s Lalit ("convicted") Page 15 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 law. It has been admitted by the then ACP i.e. PW9 Sh. Ganshyam Bansal in his cross examination that complaint Ex. PW9/A was not filed separately before the Court of Ld. CMM. He also admitted that the said complaint was rather annexed with the charge sheet by the IO of this case. He also admitted that no specific prayer has been made in said complaint U/s 195 Cr.PC that cognizance may be taken in respect of offence punishable U/s 186 IPC against accused Lalit. That being so, complaint U/s 195 Cr.PC Ex. PW9/A is not found to have been properly instituted in accordance with law. In the matter reported at 1984 (7) DRJ 248, it has been held by our own High Court that mere tagging of complaint U/s 195 Cr.PC alongwith the charge sheet, is not sufficient and said complaint must be filed in the Court of law. Therefore, Court is of the view that prosecution has failed to prove the charge for the offence punishable U/s 186 IPC against the accused.
29. As regards the offences punishable U/s 332/353 IPC, the prosecution need to establish that accused had voluntarily caused hurt to the public servant in discharge of official duty and had also intentionally assaulted or used criminal force against said public servant. For the said purpose, again the testimonies of PW2 Ct. Shankar and PW4 ASI Satyavir Singh are material. Both the said witnesses have categorically deposed during their testimonies that during the intervening night of 09/10.01.2014 at about 1.00 am, they had gone to attend PCR Call regarding quarrel between husband and wife at Gali No. 2, Near Shiv Temple, Alipur, Delhi. State V/s Lalit ("convicted") Page 16 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 They had met caller namely Sunita and PCR officials including PW6 ASI Suraj Singh Incharge PCR Van Libra 61 over there. Both are also found to have been deposed to have testified on identical lines with regard to the incident of assault made by accused against PW2, while they were attending the aforesaid call in discharge of their official duty, by testifying that when ASI Satyavir Singh made enquiry from accused after disclosing him about their purpose of visit, accused got agitated and went inside inner room of the house, having brought one sharp edged cutter and assaulted PW2 over his neck with the said cutter. They also deposed that ASI Satyavir Singh had somehow managed to overpower accused and to snatch the weapon of offence from him and having made call at the police station informing Duty Officer about the said incident, vide DD No. 3A (Ex.PW1/A).
30. PW2 also deposed that he had received 89 stitches on his neck. He also deposed that his statement (Ex.PW2/A) was recorded by IO in SRHC hospital, Narela. He has also identified his official uniform i.e. blood stained uniform shirt as Ex.P2 and the weapon of offence i.e. cutter as Ex. P1. Despite the fact that both the aforesaid witnesses were cross examined at length by Ld. defence counsel, nothing contradictory could come on record during their cross examination and both the witnesses have successfully withstood the test of cross examination.
31. Moreover, PW8 namely Sh. Rakesh Pandey has also corroborated the testimonies of PW2 Ct. Shanker and PW4 ASI Satyavir State V/s Lalit ("convicted") Page 17 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 Singh to the extent that he had seen one of the police officials having injury over his neck present at the place of occurrence and also that accused Lalit was in the custody of another police official. PW8 also deposed that he had noticed blood stains lying inside and outside the room of Lalit. It may be noted here that PW8 was also residing alongwith his family members as a tenant during the relevant period in the same house, where the incident in question is shown to have taken place. Accused could not elicit anything contrary to the case of prosecution during cross examination of PW8 and thus, there is no reason to discard or throw away the testimony of said public witness produced during trial.
32. Thus, it is quite evident from the aforesaid discussion that prosecution has been able to establish beyond pales of reasonable doubt that accused herein had voluntarily caused hurt to PW2 Ct. Shankar in order to prevent him from discharging his official duty. Not only this, it has also been proved beyond shadow of doubt that he had used criminal force against PW2 Ct. Shankar while he was performing his duty in order to deter him from discharging the said duty. No doubt, mere use of force is not enough to bring an act within the mischief of Section 353 IPC as argued by defence but in the present case, there is sufficient evidence on record showing that accused had assaulted PW2 during discharge of his official duty as public servant and had intentionally used force against PW2. The testimony of PW2 which is duly corroborated by the testimony of PW4, clearly proves that accused had assaulted PW2 while he was State V/s Lalit ("convicted") Page 18 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 discharging his official duty as public servant, in order to deter him from discharging his duty at the given date, time and place of occurrence.
33. The ocular evidence in the form of testimonies of PW2 Ct. Shankar, PW4 ASI Satyavir Singh and PW8 Sh. Rakesh Pandey is duly corroborated by medical evidence in the form of testimony of PW7 Dr. Avdesh Bhagat and MLC Ex.PW7/A of PW2 proved during trial. PW7 has deposed that during examination of Ct. Shankar (PW2), he had found incised wound of the size of 7 x 1 x 0.5 cm over his upper cervical area. He had referred PW2 to S.R. (Surgery) and after going through the relevant reports, he had opined nature of injuries sustained by Ct. Shankar to be simple being caused by sharp weapon, at pointB on MLC Ex.PW7/A.
34. Ld. defence counsel has argued that the possibility of injury as mentioned in MLC (Ex.PW7/A) being self inflicted cannot be ruled out and therefore, benefit of doubt should given to the accused. For the said purpose, he referred to the relevant portion of cross examination of PW7, wherein he has stated so. However, said submission is devoid of any merit. PW7 has only expressed his opinion that possibility of such type of injury being self inflicted, cannot be ruled out. He is not shown to have deposed that injuries sustained by PW2 Ct. Shankar was self inflicted one. It is nowhere the defence of accused throughout the trial that PW2 had himself caused injury to him, in order to put up a false story against him. Not even a single suggestion has been given by accused during cross State V/s Lalit ("convicted") Page 19 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 examination of PW2 or PW4 during trial. Same is also not the defence raised by him either during cross examination of prosecution witnesses or even in his statement U/s 313 Cr.P.C.
35. The law on the point of testimony of stamped witness is now well settled. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
36. In the judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
State V/s Lalit ("convicted") Page 20 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 xxxxxxx"
37. Moreover, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the police witnesses. Although the accused in his statement has claimed that he is innocent and he has been falsely implicated but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out the testimonies of the witnesses.
38. In the light of aforesaid discussion, Court is of the view that the prosecution has been successful in establishing the guilt of accused Lalit for the offences punishable U/s 332/353 IPC.
39. This brings me down to the offence punishable U/s 308 IPC charged against the accused. Ld. defence counsel vehemently argued that accused cannot be vexed twice by convicting him in respect of offence U/s State V/s Lalit ("convicted") Page 21 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 332 IPC as well as for the offence punishable U/s 308 IPC with regard to one incident. However, said argument is totally misplaced and is not tenable in the eyes of law. The reason is quite obvious that Section 332 IPC make an act of voluntarily causing hurt to public servant during discharge of his official duty or with intention to prevent or deter such public servant from discharging his official duty, to be punishable therein, whereas Section 308 IPC would come into picture in a situation where it is found that accused had committed the act against any person with intention or knowledge and under such circumstances that if by his said act, he would have caused his death, he would have been guilty of committing culpable homicide not amounting to murder.
40. In the present case, it has already been held in the preceding paras that prosecution has successfully established on record beyond reasonable doubt that accused Lalit had voluntarily caused hurt to PW2 Ct. Shankar while he was discharging his official duty as public servant but from the circumstances and the manner in which offence is shown to have been committed by the accused, it is also proved beyond doubt that accused had also attempted to commit culpable homicide punishable U/s 308 IPC. The accused is shown to have brought sharp edged paper cutter from inside room of his house when he got agitated on being interrogated by PW2 and PW4 who had gone to his house for attending call received vide DD No. 2B (Ex.PW5/A). Thereafter, accused not only used criminal force against PW2 but is also found to have attacked upon PW2 by State V/s Lalit ("convicted") Page 22 of 23 FIR No. 20/14; U/s 186/353/332/307 IPC; P.S. Alipur DOD: 30.03.2016 assaulting him with said cutter on his neck. Even if intention to commit culpable homicide may be missing in this case in the backdrop of the fact that accused had no sort of previous illwill or enmity against PW2 but still, the accused was having requisite knowledge that in case his act in inflicting blow over neck of PW2 by said sharp edged cutter, would have been severe, it could have been fatal for the life of PW2. PW7 Dr. Avdesh Bhagat has explained during cross examination that since there was no injury to the muscles and blood vessels of PW2 and depth of injury was only upto soft tissues, he had opined the nature of injury as simple. Thus, Court agrees with the submission made by Ld. Additional PP that the facts and circumstances as brought on record with the help of ocular and medical evidence, are sufficient to hold that offence punishable U/s 308 IPC has been proved against the accused beyond pales of reasonable doubt. It is held accordingly.
41. In the light of aforesaid discussion, accused namely Lalit S/o Sh. Diwan Ram stands acquitted for the offence punishable U/s 186 IPC. However, he is convicted for the offences punishable U/s 332/353/308 IPC.
Announced in open Court today
On 30.03.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Lalit ("convicted") Page 23 of 23