Delhi District Court
State vs Dinesh Sharma Etc on 18 November, 2014
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
DWARKA COURTS, NEW DELHI
SC No.14/1/12
FIR No.307/08
U/s 186/353/332/333/34 IPC
PS Dwarka
State
Vs.
1. Dinesh Sharma s/o Late Sh. Harbans Lal Sharma
2. Sanjeev @Ashu s/o Sh Ashok Gulati
3. Yash Gulia s/o Sh. Anoop Gulia
..... Accused
Challan filed on : 01.07.2010
Received by Sessions Court on:26.03.2012
Reserved for Order on : 11.11.2014
Date of Pronouncement : 18.11.2014
JUDGMENT
Briefly stated the facts of the prosecution case are that on 17.05.2008, ASI Dharamvir, the then Head Constable was on patrolling and he reached KM Chowk, Sec. 12 Dwarka at about 10 State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 1 of 27 p.m where he found some boys consuming liquor while standing near a car and bottle was kept on the roof of car. SI Dharmbir asked them not to consume liquor at public place on which they started abusing him and thereafter beaten him as a result of which he sustained injuries. After beating SI Dharambir, the said boys ran away in different directions. SI Dharambir chased accused Dinesh and Sanjeev and one Sanjeev jumped over the wall of pocket 7 where residents of pockets apprehended the accused persons and gave information at number 100. It is further the case of the prosecution that while HC Yogesh, Ct Ramesh and HC Dharamvir were taking custody from the public persons, accused persons again gave beatings to SI Dharamvir,HC Yogesh and Ct. Ramesh and accused Sanjeev caught hold the finger of HC Yogesh and twisted and ran away from there. It is further the case of the prosecution that SI BS Ahlawat reached at the spot. The shirt of HC Dharamvir was found to have been torned which was handed over to IO. Accused Dinesh was found to have been apprehended at the spot and he was produced to SI B.S.Ahlawat. The injureds were taken to hospital where MLC Ex.PW11/A and Ex.PW11/B were prepared. He was arrested. Later accused Sanjeev was also arrested. The statements of witnesses were recorded. The State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 2 of 27 complaint u/s 195 Cr.PC was filed. The investigation was conducted and after completion of investigation, challan was filed.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 26.03.2012.
3. The charge against the accused persons namely Dinesh Sharma, Sanjeev @ Ashu and Yash Gulia was framed on 11.09.2012 to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, in all has examined as many as 14 witnesses. PW1 Bhuwan Joshi is the resident of flat no. 224 Sec.7 and he was informed by one security guard that some quarrel had taken place near the guard room. He came there and found that two persons were apprehended by the police. He cannot identify any of the persons now. He was declared hostile by the prosecution and cross examined by the Ld. Addl.PP for the stated wherein he denied the suggestion that he had seen accused Dinesh and Sanjeev present in the court, assaulting on police officials. He denied the State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 3 of 27 suggestion that he is eye witness of the case.
5. PW2 Mukesh Bhardwaj has deposed that during May 2008, he found two persons apprehended by the public persons and after sometime two police officials whose name he does not remember came on motorcycle, perhaps whose names were Dharamvir and Jagbir and those two persons started assaulting on the police officials. He cannot identify the said two persons. He was declared hostile and cross examined by the Ld. Addl.PP for the State wherein he denied the suggestion that he saw accused Dinesh and Sanjeev assaulting the police officials. He also denied the suggestion that he is an eye witness in this case.
6. PW3 A.K.Bhatia has deposed that during May 2008 at about 10.3011 p.m. He saw two persons apprehended by some public persons and after sometime two police officials came . He does not know anything else about this case. He was also declared hostile and cross examined by the Ld. Addl.PP for the State wherein he denied the suggestion that accused Dinesh and Sanjeev had assaulted on police officials. He further denied that he is the eye witness of this same. State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 4 of 27
7. PW4 ASI Dharambir Singh is the complainant and he has deposed that on 17.05.2008 he was on patrolling and he found 45 boys consuming liquor standing near a car and bottle was kept on the roof of car. Out of those boys, 3 are present in the court and he asked them not to consume liquor at public place. He has further deposed that the accused persons started abusing him and also started giving beatings as a result of which he sustained injuries and fell on the ground. Thereafter the accused persons ran away from there. He has further deposed that he chased the accused Dinesh and Sanjeev and they jumped inside pocket 7 over the wall and residents informed at telephone no. 100. HC Yogesh and Ct. Rameshwar came there. Both the accused Dinesh and Sanjeev were apprehended by the public persons inside the pocket. When he, HC Yogesh and ct. Rameshwar Dayal were taking the custody of these accused persons from the public persons, they again gave beatings to him and two police officials. Accused Sanjeev caught hold the finger of HC Yogesh and twisted the same. Accused Sanjeev managed to escape. He has further deposed that one constable with SI BS Ahlawat came at the spot and Dinesh was produced to him. The shirt of uniform which was torn, handed over to SI BS Ahlawat and his statement Ex.PW4/A was State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 5 of 27 recorded. They were taken to DDU Hospital for treatment. The shirt was seized vide memo Ex.PW4/B. The shirt is Ex.P1.
8. PW5 Ct. Rameshwar Dayal has deposed that at about 11.30 p.m on 17.05.2008 on receipt of call regarding apprehending of thieves, he alongwith HC Yogesh reached at Pocket 7 Dwarka where 1012 persons were found and accused Dinesh and Sanjeev were found apprehended by those public persons. ASI Dharambir was also found there. He has further deposed that when they were taking the custody of accused persons from the public persons, the accused persons assaulted on him, HC Yogesh and ASI Dharambir and Sanjeev twisted the finger of HC Yogesh. Accused Dinesh was apprehended but accused Sanjeev managed to escape. In the meantime SI BS Ahlawat and Ct. Narender reached and accused Dinesh was handed over to SI BS Ahlawat. They were taken to DDU Hospital where he got treatment.
9. PW6 HC Yogesh is the witness who accompanied PW5 to the spot on motorcycle. He has deposed on the lines of PW5 regarding apprehension of accused person at the spot by the public persons and State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 6 of 27 he has also deposed that the accused persons assaulted on them and that accused Sanjeev twisted his index finger of right hand as a result of which he sustained fracture in the finger.
10. PW7 Ct. Narender has deposed that he reached at the spot with SI BS Ahlawat where HC Yogesh, ASI Dharambir and Ct. Rameshwar with Dinesh, accused present in the court were found and HC Dharamvir produced Dinesh to him. The police officials were got medically examined from DDU Hospital. After medical of ASI Dharambir, his statement was recorded, rukka was prepared the it was handed over to him for registration of case. He has further deposed that accused Dinesh Sharma was arrested vide memo Ex.PW7/A and his personal search was conducted vide memo Ex.PW7/B. He was interrogated and he got recovered a motorcycle no.DL 4SBH 8071 which was seized vide memo Ex.PW7/C. The torned uniform of HC Dharamvir was also sealed and seized vide memo Ex.PW7/D. The uniform is Ex.P1.
11. PW8 SI Deeg Ram has deposed that on 17.5.08 he received information regarding apprehension of one thief and he informed SI State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 7 of 27 BS Ahlawat.He recorded DD no.83B copy of which is Ex.PW8/A. He has further deposed that in the early morning of 18.5.2008 he received rukka through ct. Narender sent by SI BS Ahlawat and he recorded formal FIR copy of which is Ex.PW8/B. The endorsement on rukka is Ex.PW8/C.
12. PW9 SI Mahesh Soni has deposed that during investigation he made search of accused Deepak Lochap but he could not be found. He prepared challan and filed in the court.
13 PW10 SI Daljeet Singh has deposed that he has brought the duty roaster for the month of May 2008 for dated 17.05.2008 copy of which is Ex.PW10/A. He has deposed that as per duty roaster HC Dharamvir was on patrolling duty in beat no.9 and HC Yogesh and Ct. Rameshwar were on motorcycle duty.
14. PW11 Dr. V.K.Soni has deposed that MLC of HC Yogesh and ASI Dharambir were prepared by Dr. Ashapurnlata who left the service of the hospital. He identified the handwriting of Dr. Ashapuranlata on MLC Ex.PW11/A and B. He has also seen MLC of State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 8 of 27 Ct. Rameshwar Dayal prepared by Dr. Saurav and he also identified his handwriting and signatures on MLC Ex.PW11/C.
15. PW12 Dr. Vinal Sharma has deposed that has appeared for Dr. Anil Orthopeadics. He has stated that the said Dr. Vinal has opined the nature of injury as grievous. The opinion of doctor on MLC is Ex.PW11/A is Ex.PW12/A. He has further deposed regarding opinion of said doctor regarding nature of injury Ex.PW12/B and C as simple on MLC Ex.PW11/B and C.
16. PW13 Ct.Suresh has deposed that on 19.5.2008, he joined investigation with Insp. BS Ahlawat and went to House No. 1147 Najafgarh in search of accused Sanjeev @ Ashu and arrested accused vide arrest memo ex.PW13/A and his personal search was conducted vide memo Ex.PW13/B.
17. PW14 Sh.Mandeep Singh Randhawa has deposed that on 4.1.2010 he made complaint u/s 195 Cr.PC regarding incident of 17.5.2008. His complaint is Ex.PW14/A. State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 9 of 27
18. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused Yash Gulia has taken the plea that during Jan/Feb., his father was constructing house and SI BS Ahlawat used to visit their place in order to take money. But his father did not pay any amount to him. He was taken by SI BS Ahlawat on 12th Sept on the pretext that he wants to enquire something from him. Later on, he was falsely implicated in this case. Accused persons opted to lead defence evidence Thereafter, the case was fixed for defence evidence.
19. In defence, accused has examined Ashok as DW1 who has stated that he is father of Sanjeev and on 18.5.2008 Sanjeev was with him at his home till evening as he sustained injury on his head and on that day police arrested his son from his home in the evening.
20. DW2 Rajeev has deposed that his brother was lifted by the police from his house on 18.11.2012 in the evening hours again said on 18.5.2008.
State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 10 of 27
21. I have heard the arguments from the Ld.counsel for the accused persons as well as Ld.Addl.PP for the State and perused the testimonies of all the PWS and exhibited documents carefully. 22 Ld. Counsel for the accused Dinesh and Sanjeev has drawn my attention on the testimonies of each witness during argument as well as sec.186,353,332 and 333 IPC. He pointed out some contradictions in the testimonies of the witnesses. He has argued that no such incident has taken place and accused persons were falsely implicated by the police after lifting from their houses. It has been argued that the public witnesses have not supported the case of the prosecution. It is submitted that none was assaulted or stopped by the accused persons from doing public duties. There is no evidence on record to convict the accused and therefore they may kindly be acquitted.
23 Ld. APP for the State has strongly refuted the submission made by the Ld. Counsel for the accused persons and he has argued that the contradictions pointed out by the Ld. Counsel for the accused are of trivial in nature and they cannot be given weightage. He has State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 11 of 27 further argued that the prosecution has fully established its case against the accused persons as the complainant and injured have clearly stated that the accused persons have assaulted him while on duty. It is further submitted that two accused Dinesh and Sanjeev were apprehended at the spot. However, one accused Sanjeev escaped as he twisted the finger of HC Yogesh and that the finger of HC Yogesh was got fractured. It is submitted that the accused persons may kindly be punished as per law.
24. I have given my thoughtful consideration on the arguments made by the Ld. Counsel for the accused persons as well as Ld. Addl.PP for the State and in the overall analysis of the testimonies of witnesses it is revealed that the present complaint was registered on the statement of PW4 ASI Dharambir Singh. He is the injured in this case. Other injured are PW5 Ct. Rameshwar Dayal and PW6 HC Yogesh Kumar. PW4 ASI Dharambir, PW6 HC Yogesh and PW6 Ct. Rameshwar are the stamped witnesses in this case. The testimony(ies) of a stamped witness(s) has its own relevance and efficacy. The fact that the witness had sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 12 of 27 the occurrence. The prosecution has examined PW10 ASI Daljeet Singh who produced the duty roaster of the staff for 17.05.2008. The copy of the same is Ex.PW10/A. As per duty roaster HC Dharamvir was on night patrolling duty in beat no.9 and HC Yogesh and Ct.Rameshwar were on motorcycle duty. PW10 has not been cross examined by the Ld. Defence counsel. It is therefore, clear that the police officials were on duty as mentioned in the duty roaster Ex.PW10/A. The presence of injured PW1 ASI Dharambir, HC Yogesh and Ct.Rameshwar at the place of occurrence is even clearly established by the testimony of PW1 Bhuwan Joshi, PW2 Mukesh Bhardwaj and PW3 A.K.Bhatia who are the residents of Pocket7, Sec.12, Dwarka as PW1 has stated that he was informed by the security guard about quarrel and he came and found two persons apprehended by the police officials and that one of the said two persons managed to escape from the custody of the police and PW2 has also stated that he reached at the gate and found two persons apprehended by the police and after sometime two police officials came and that the two persons who were apprehended by the public persons started assaulting on police officials. PW3 has also stated that he saw two persons apprehended by some public persons and after State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 13 of 27 sometime two police officials came on motorcycle. Though PW1,2&3 have not indentified the accused persons as the same boys but they have clearly corroborated the statement of PW4,5& 6 that the two boys were apprehended by the public persons at the spot and that the said accused persons have also assaulted the police and that one out of two persons, managed to escape. It is well settled law that the testimonies of hostile witnesses can be relied to the extent its supports the prosecution case. PW5,6&7 are the injured in this case. They are the police officials. The submission of the Ld. Counsel is that being police officials they deposed falsely. Under the law, the court has to presume that official acts are performed in due course of law. If this argument is accepted, then court will have to adopt an approach of inbuilt suspicion in its mind as to the integrity of police officials which is not a correct approach. The testimony of police officials are to be appreciated like any other witness. But it is rule of caution that Court should scrutinize the testimony of police witnesses with utmost care and caution to assure itself of its credibility. The lack of cautious approach is likely to cause miscarriage of justice. I have cautiously perused the statements of PW4, 5 & 6. PW4 has stated that he asked the accused persons not to drink in a public place to which they abused State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 14 of 27 him and given beatings as a result of which he sustained injuries and fell on the ground. He chased them and accused jumped inside pocket 7 where they were apprehended by the public persons. It is to be borne in mind that only two boys were apprehended. Thereafter PW5 Ct.Ramesh and PW6 HC Yogesh reached there and when the accused persons (two boys) were being handed over, they again assaulted on them and even the finger of HC Yogesh was bent by accused Sanjeev and he managed to escape from there. PW5 & 6 have corroborated the statement of PW4 in this respect. Even PW1,2&3 who are public witnesses have also corroborated regarding apprehension of two boys and that they assaulted the police. The statement of hostile witnesses is corroborated by the statements of injured regarding the case of the prosecution.
25. The testimony of the injured witness(s) is accorded a special status in law. This is a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of crime and because the witness will not want to let the actual assailant to go unpunished merely to falsely involve a third party for the commission of the offence. In the case of State of Uttar Pradesh State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 15 of 27 vs.Naresh and Ors. (2011) 4 SCC 324, Hon'ble Apex Court has held that : "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
26. In the case of Abdul Sayed Vs.State of Madhya Pradesh(2010) 10 SCC 259 Hon'ble Supreme Court has held that : "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 State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 16 of 27 discussed by this 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".
27. So, in view of the testimony of PW4 ASI Dharambir Singh, PW5 Ct. Rameshwar and PW6 HC Yogesh, it is revealed that they have assigned the specific role to accused Sanjeev that he twisted the index finger of HC Yogesh. PW4 has also stated that he was beaten and abused by the accused persons. All the three witnesses have corroborated the statements of each other. As far as motive to assault is concerned, it has clearly been stated by PW4 that the accused persons were consuming liquor standing near a car and the bottle of liquor was kept on the roof of the car and when he asked them not to drink in public place, they started abusing and beating him. In cross examination also he has stated that the car on which the bottle of liquor was kept was of white colour. It has therefore been admitted by the defence that the accused persons were drinking at the State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 17 of 27 spot after keeping bottle on roof of white colour car. Non seizure of car or bottle is not fatal for the case of the prosecution. I have perused the cross examination of PW4 but no question/suggestion has been put by the Ld. Defence counsel to Pw4 that accused persons were not consuming liquor on the alleged date and time. PW5 Ct.Rameshwar, in cross examination, has stated that it is wrong to suggest that quarrel had not taken place between the complainant and accused Dinesh and Sanjeev but they were standing to see the quarrel. He has further stated that it is wrong to suggest that when they were standing to see the quarrel at that time they were apprehended by them VOL. They were apprehended by the public persons. By putting the above suggestions to PW5, the defence has admitted that accused Sanjeev and Dinesh were present at the spot. Both the accused are residents of Najafgarh. They have failed to explain their presence in Pocket 7, Sec.12 Dwarka in the night when they are not residents of the said pocket.
28. The accused Sanjeev and Dinesh have taken simple plea that they have been falsely implicated in this case but acused Dinesh has failed to lead any defence evidence to prove his contention. State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 18 of 27 Accused Sanjeev has examined DW1 Ashok and DW2 Rajeev. The statement of DW1 is that accused Sanjeev was with him till evening but the present case incident had taken place after 10 p.m. DW2 has stated that Sanjeev was lifted from house. But he, being brother, has failed to make any complaint to any higher authority that his brother has been lifted from the house without any reason. The accused Sanjeev and Dinesh did not give plausible explanation to the incriminating circumstances proved against them.
29. On the other hand, the statement of PW4 ASI Dharambir Singh, PW5 Ct.Rameshwar and PW6 HC Yogesh has been corroborated by the medical evidence available on file as on the MLC of HC Yogesh Ex.PW11/A, it finds mentioned 'alleged history of assault'. On local examination, swelling over the 2nd, 3rd metacarpal of right hand with tenderness and restriction of movement. When the finger was xrayed, the finger was found fractured. MLC Ex.PW11/B of ASI Dharambir also found mentioned alleged history of assault. There was swelling over the parieto occipital region, tenderness over left hand, right heel and scratch mark over the left knee. On MLC Ex.PW11/C of Ct.Rameshwar it is mentioned that there is tenderness State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 19 of 27 over the left heel, swelling present. They were admitted in the hospital on 18.5.08 between 2.45 a.m to 2.53 a.m. The prosecution has also obtained the subsequent opinion regarding nature of injury and on the MLC of HC Yogesh, injury has been opined as grievous and on remaining MLC, injury has been opined as simple. Therefore, the medical evidence corroborate the testimonies of PW4,5&6 regarding injuries sustained by them.
30. Minor contradictions and discrepancies highlighted by the counsel for the accused are not fatal to the prosecution case as they do not go to the root of the case and affect the core issue that the accused had caused injuries on the person of PW4, 5 & 6.
31. It is well settled law observed by our Own Hon'ble High Court of Delhi in Hardutt & Others Vs.The State that injured witnesses are the best witnesses to give true and correct account of the incident and there does not seem any plausible reason to disbelieve the injured witnesses. In this case Pw4,5&6 are the injured and they are the star witnesses of the prosecution. In fact they are the backbone of the prosecution case and whole prosecution case rests upon their State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 20 of 27 testimonies and in their testimonies they have specifically stated and assigned the role of accused Sanjeev and Dinesh as they both were apprehended at the spot. However, Sanjeev has succeeded to run away after twisting the finger of HC Yogesh. The testimonies of PW4,5&6 could not be shattered by the Ld. Defence counsel in cross examination. Even presence of accused Sanjeev and Dinesh have been admitted by the defence in cross examination. The contradictions pointed out by the Ld. Counsel are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored by the courts in view of the observation of case law Asha @ Ashanand & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155.
32. Ld.counsel for accused Yash Gulia has stated that accused was not present at the spot nor he abused or beaten the police officials. His name is not there in the FIR. I have perused the evidence against accused Yash Gulia. PW4 ASI Dharambir has stated that 45 boys were consuming liquor out of which 3 are present in the court and when he asked them not to consume liquor, they started beating and abusing him. He did not assign any separate role of accused Yash State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 21 of 27 Gulia. Accused Yash Gulia was not apprehended from the spot alongwith his coaccused. In cross examination PW4 has stated that it is correct that he was not called for participating in judicial TIP of accused Yash Gulia at any point of time. The prosecution has never tried to get done the TIP of accused Yash Gulia. There is no explanation on file as to why the TIP of accused Yash Gulia was not conducted in this case. It is stated in case law 2001 (1) Crimes 61, Satpal Vs. State of Haryana that 'IPC 1860 - Sec. 279 and 304 A - Conviction by courts below for offence - Revision - Identity of petition as driver of truck which caused accident - Some of the eye witnesses identified petitioner as driver of truck in the court but they were not knowing petitioner before accident - Driver of truck had run away from spot after accident - Identification of petitioner in court without identification parade would not serve prosecution purpose'. In case law titled Mohd. Saleem Vs. The State, 1992(1) RCR 277 it is stated in head note that 'IPC Sec. 376, 366 - Identification Parade - Accused not known to PWS previously - Arrest not made in presence of witnesses - Name of accused not mentioned in FIR - Arrest of accused - Identification parade must be held in such a case. AIR 1977 SC 363 relied'.In the present case, TIP of accused Yash Gulia has not State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 22 of 27 been conducted. His name is also not there in FIR. Nothing has been recovered from him. The Public witnesses, PW1, PW2 and PW3 have also deposed about two persons only who were apprehended by the public persons and who assaulted the police officials. Considering the evidence on record, I am of the view that the prosecution has failed to establish the identity of accused Yash Gulia in this case.
33. Ld. Counsel has submitted that the IO of this case has not been examined. In my view, it is not fatal for the case of the prosecution since other witnesses of investigation has been examined and even PW7 Ct. Narender who accompanied IO SI BS Rawat to the spot has also been examined. Other witnesses of the prosecution have also corroborated the case of the prosecution.
34. In the present case, the charge has been framed u/s 186/353/332/333/34 IPC. Sec.186 contemplates - obstructing public servant in discharge of public functions. PW4 has stated that the accused persons were consuming liquor and he asked them not to consume liquor at public place to which they abused and beaten him. PW14 Sh Mandeep Singh Randhawa, IPC has proved the complaint u/s 195 Cr.PC which is Ex.PW14/A. No question/suggestion has been State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 23 of 27 put to PW14 that a false complaint has been lodged or that it was afterthought. Section 353 contemplates Assault or criminal force to deter public servant from discharge of his duty. PW4 has been abused and beaten by the accused persons and even thereafter when accused Sanjeev and Dinesh were apprehended by the public persons and during the process of handing over to police, both the accused again assaulted the police officials and accused Sanjeev twised the finger of HC Yogesh and suceeded to run away from there. HC Yogesh sustained grievous injury on his finger as it got fractured. PW5 & 6 have corroborated the version of PW4 regarding beatings given by accused Sanjeev and Dinesh at Pocket 7 Sec.12, Dwarka.
35. Sec.332 contemplates voluntarily causing hurt to deter public servant from his duty and Sec.333 contemplates voluntarily causing grievous hurt. In the present case, as per MLC of ASI Dharambir Ex.PW11/B and Ct Rameshwar Ex.PW11/C, they sustained simple injuries while PW6 HC Yogesh sustained grievous injuries vide MLC Ex.PW11/A. The prosecution has examined PW11 Dr. V.K.Soni who appeared for Dr. Ashpurnlata and he has stated that MLCs Ex.PW11/A&B were prepared by Dr. Ashapurnlata State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 24 of 27 and that MLC Ex.PW11/C was prepared by Dr. Saurav Kumar. Both the injured ASI Dharambir and Ct.Rameshwar have sustained simple injuries. The prosecution has also examined PW12 Dr. Vinal Sharma who appeared for Dr. Anil and he has stated that Dr. Anil has opined the nature of injury on MLC Ex.PW11/A as grievous. In the present case, the prosecution has failed to examine the doctor who prepared the MLCs of the injured or the doctor who opined the nature of injury. In case law 1998 II A.D.(Cr.) Delhi 21, Hon'ble Mr.Justice Dalbeer Bhandari has held that :-
"In the absence of doctor's examination it is difficult to come to conclusion whether the injury caused by the appellant was grievous in nature? There is no other material on record by which it can be observed that the injury caused to the appellant was dangerous to the life. In this view of the matter the conviction of the appellant u/s 307IPC can not be sustained. On consideration of the facts and circumstances of the case and in interest of justice I deemed it an appropriate to set aside the appellant conviction u/s 307 IPC maintaining the conviction of the appellant u/s 324 IPC the sentence is reduced to the period already undergone"
36. In view of the supportive evidence in respect of the State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 25 of 27 prosecution case by PW4,5&6, I have also perused and given my thoughtful consideration on the medical evidence adduced by the prosecution. The nature of injury on the MLC of HC Dharmbir and Ct.Rameshwar has been opined as simple while on the MLC of HC Yogesh the nature of injury has been opined as grievous. In consideration of the above case law and the nature of injuries opined and in the absence of examination of doctor who prepared the MLC and opined the injury, I am of the view that the prosecution could not prove that HC Yogesh had sustained grievous injury. However, there is sufficient evidence that ASI Dharambir, HC Yogesh and Ct.Rameshwar had sustained simple injuries in this case. So,the accused Sanjeev and Dinesh cannot be convicted u/s 333 IPC.
37. In consideration of my discussions, I am of the view that the prosecution failed to prove its case against accused Yash Gulia. I, therefore give the benefit of doubt to him and he is acquitted in this case. However, the prosecution has left no stone unturned to prove its case against accused Sanjeev and Dinesh for the commission of offence punishable u/s 185/353/332/34 IPC. I therefore hold accused Sanjeev @ Ashu and Dinesh Sharma guilty for the commission of State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 26 of 27 offence punishable u/s 186/353/332/34 IPC and convict them thereunder.
Announced in the open Court on 18.11.2014 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE (NDPS) DWARKA COURTS NEW DELHI State Vs.Dinesh Sharma etc FIR no.307/2008 Page No. 27 of 27