Delhi District Court
Sh. Anil vs State on 23 October, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 289 of 2018
Sh. Anil
S/o Sh. Hasth Bahadur,
R/o Jhuggi, Aali Extension,
New Delhi ......Appellant
Vs.
State .......... Respondent
CA No. 290 of 18
Sh. Dhan Raj s/o Sh. Biral Prasad, r/o Jhuggi, Aali Extension, New Delhi .......Appellant.
Vs.
State .......... Respondent
Instituted on : 06.06.2018
Argued on : 04.10.2018
Decided on : 23.10.2018
Dhan Raj & Anil Vs. State - 1 of 21
J U D G M E N T
1 The judgment shall dispose of two appeals filed by
the appellants which are arising out of the same judgment and sentence.
2 The appellants have impugned the judgment dated 7.5.2018 vide which they have been convicted u/s 186/332/353/34 IPC and order on sentence dated 18.5.2018 vide which they are sentenced to undergo SI for 3 months u/s 186 IPC, SI for six month for offence u/s 353 IPC and SI for 1 year u/s 332 IPC with the direction to pay a compensation of Rs.7,000/ by each convict to the victim. All the sentences are to run concurrently.
3 The appeal is filed by the appellants on the grounds that prosecution has failed to prove its case against them. They cannot be convicted on the basis of material on record. There are contradictions in the testimony of witnesses. The sentence is Dhan Raj & Anil Vs. State - 2 of 21 harsh and excessive. Hence, this appeal.
3 Notice of appeals is given to the state.
4 The facts of the case are like this. Ct. Jai Pal gave his statement to the police with the allegations that he is posted as Ct. at PS, Sarita Vihar. On 18.3.2005 at 8.45pm he was on patrol duty in the beat area and reached near Fly Over, Sarita Vihar where appellants and accused Jeetu (their names were known later on) were quarrellings with Manoj Gupta. He stopped them from quarreling upon which accused Jeetu caught him from behind. Appellant Dhanraj has brought danda at the instance of appellant Anil and handed over to appellant Anil. Appellant Anil gave him danda blows on head and forehead and other parts of body. He has sustained injuries. Motorcycle riders Ct. Vikas and Ct. Hans Raj reached on the spot and apprehended appellants and accused Jeetu. Appellant Anil has also sustained minor injuries. His statement was recorded. The usual investigation was carried Dhan Raj & Anil Vs. State - 3 of 21 out and charge sheet was filed u/s 186/323/332/353/34 IPC against the appellants.
5 Charge for the offence u/s 186/323/332/353/34 IPC was framed against the appellants to which they pleaded not guilty and claimed trial. Accused Jeetu has been declared proclaimed offender during the course of trial. 6 Prosecution has examined 9 witnesses. Appellants have admitted MLC Ex. C1 of injured Ct. Jai Pal u/s 294 CrPC. The appellants were examined u/s 313 Cr.P.C. Their defence is of denial simplictor. However, no defence evidence is led. 7 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellants u/s 186/332/353/34 IPC. 8 The prosecution has examined 9 witnesses.
9 PW1 Ct. Jaipal is the complainant. He stated that on 18.03.2005 he was posted as Constable at PS, Sarita Vihar. On Dhan Raj & Anil Vs. State - 4 of 21 that day at 8.45pm he reached near Fly Over, Sarita Vihar where appellant including accused Jeetu were quarreling with a shopkeeper Manoj Gupta. He tried to pacify them but appellants and accused Jeetu did not listen to him. Jeetu caught him from behind. Appellant Anil asked Dhanraj tobring a danda. Appellant Anil gave beatings with danda to him on head, shoulder and left arm. In the meantime, Ct. Vikas and Ct. Hansraj also reached on the spot. The appellants were apprehended and taken to PS alongwith accused Jeetu. The appellants have created obstruction in performing his official duties. His statement PW1/A was recorded. Site plan was prepared at his instance. His supplementary statement was recorded. He has identified the appellants. During crossexamination he stated that he was alone on patrol duty on his motorcycle. Ct. Vikas and Ct. Hansraj reached on the spot after he suffered injuries. Both of them did not accompany him to hospital. He alone went to hospital. He did Dhan Raj & Anil Vs. State - 5 of 21 not visit the spot with IO after the incident. Site plan was not prepared at his instance by the IO. The suggestion is denied that he did not go to the spot or did not intervene in the quarrel or he was not beaten by the appellants or has falsely implicated the appellants at the instance of Manoj.
11 PW4 Manoj Gupta stated that on 18.03.2005 at 08:45 - 09:00 pm, he has closed his Grocery shop for the day. He was going back to his residence. Appellants and accused Jeetu met him on the way. They have abused him to which he objected. Accused Jeetu slapped him. Ct. Jaipal reached on the spot and tried to pacify them. Accused Jeetu picked up a danda and hit Ct. Jaipal. The appellants also grappled with him and Ct. Jaipal. He called the police at number 100. Police came on the spot. The appellants and accused Jeetu were taken to PS. The danda was seized by the police vide memo Ex.PW2/A. During cross examination he stated that two police constables came on the spot Dhan Raj & Anil Vs. State - 6 of 21 on a motorcycle after his call on number 100. The police officials have taken the danda which was snatched by him from Jeetu. He signed the seizure memo at PS. The suggestion is denied that appellants have not quarreled with him or Ct. Jaipal did not intervene or he did not snatch danda from accused Jeetu or that he is in collusion with Ct. Jaipal.
12 PW3 Ct. Hansraj stated that on 18.03.2005 he was posted at PS, Sarita Vihar. On that day, he alongwith Ct. Vikas was on patrol duty at MP Khadar area. They have reached at 08;55 pm near flyover Sarita Vihar where appellant and accused Jeetu were beating Ct. Jaipal Singh. Appellant Anil was carrying danda who was beating Ct. Jaipal. Manoj Gupta was also beaten by the appellants and accused Jeetu. They have rescued Ct. Jaipal and apprehended the appellants and accused Jeetu. Ct. Jaipal went to Hospital and appellants and accused Jeetu were taken to PS. Accused Jeetu is PO. The danda was taken into possession vide Dhan Raj & Anil Vs. State - 7 of 21 fardh Ex.PW2/A. He has identified by the danda produced in the Court. During cross examination he statd that he has made a departure entry in the roznamcha. Ct. Jaipal was known to him prior to the incident who was on duty. Ct. Jaipal was wearing uniform. The suggestion is denied that he was not present on the spot or did not witness the incident or appellants did not beat Ct. Jaipal and Manoj.
13 PW2 HC Vikas Rathi has corroborated the version of PW3.
14 PW5 Ct. Kailash stated that on 18.03.2005 he was posted at PS, Sarita Vihar. At 09:15 pm he was standing at the gate of PS. Ct. Jaipal came to the PS with injuries and blood stains on the uniform. He took him to Apollo Hospital, where he was got medically examined. During cross examination he stated that he was chittha munshi on that day but he was accidentally standing at the gate of PS after completing his duty.
Dhan Raj & Anil Vs. State - 8 of 21 15 PW6 SI (Retd.) Satyapal Singh has proved FIR
Ex.PW6/A and endorsement Ex.PW6/B on the rukka. 16 PW7 SI Jamil Ahmed is IO of the case. He stated that on 18.03.2005 DD No. 16A was handed over to him upon which he alongwith Ct. Shailesh went to Azad Camp Jhuggi, near Sarita Vihar flyover where Ct. Vikas, Ct. Hansraj, injured Manoj Gupta met him and custody of the appellants and accused Jeetu was handed over to him. He came to know that injured Ct. Jaipal has gone to unknown Hospital for treatment. Ct. Samay Singh, DHG came with DD No. 20A regarding admission of Ct. Jaipal in Apollo Hospital upon which he alongwith Ct. Shailesh went to Apollo Hospital where MLC of constable was collected. His statement Ex.PW1/A was recorded on which rukka Ex.PW7/A was prepared and sent to PS for registration of case. He came back to the spot where Constable came back with copy of FIR and rukka. Ct. Vikas has handed over one danda to him which Dhan Raj & Anil Vs. State - 9 of 21 was taken into possession vide fard Ex.PW2/A. He prepared site plan Ex.PW7/B at the instance of Manoj Gupta. The appellants and accused Jeetu were arrested. Their personal search and arrest memo Ex.PW7/C to H were prepared. He got the complaint u/s 195 Cr.PC from ACP. MLC of injured constable was collected. The appellants and accused Jeetu were got medically examined and MLC are Ex.PW7/I to K. He has identified the appellant and danda produced in the court. During cross examination he stated that statement of Ct. Jaipal recorded in the Hospital. The entire writing work was done on the spot. The suggestion is denied that he has not properly conducted the investigation and implicated the appellants at the instance of Manoj and Ct. Jaipal. 17 PW8 HC Vijay stated that orginal record of DD No. 16A, 20A, 51B dated 18.03.2005 has been destroyed vide order dated 09.05.2017 of ACP HQ which is markA. 18 PW9 Sanjay Kumar Tyagi, IPS has proved sanction Dhan Raj & Anil Vs. State - 10 of 21 u/s 195 Cr.PC Ex.PW9/A. 19 Ld. Counsel for the appellants submitted that the testimony of PW4 shows that accused Jeetu has given beatings with danda to Ct. Jaipal whereas testimony of PW1 Ct. Jaipal shows that appellant Anil has given beatings to him with danda which was given to him by appellant Dhanraj at his instance. He further submitted that the testimony of PW4 shows that two constables have reached on motorcycles after he called the police at number 100 whereas testimony of PW2 & 3 shows that they have seen the appellants while giving beatings to PW1 & 4. He further submitted that testimony PW1 shows that he went to Hospital from the spot whereas testimony of PW5 shows that PW1 came to PS and thereafter, he took him to Hospital. He further submitted that no recovery of danda was effected from them. He further submitted that there are material contradictions in the testimony of PWs which go to the root of prosecution case.
Dhan Raj & Anil Vs. State - 11 of 21 20 Ld. Addl.PP for the State submitted that there are
contradictions in the testimony of PWs but these contradiction are minor in nature which do not affect the case of the prosecution. She further submitted that PW1 and 4 have no enmity with the appellants so there is no question of false implication. She further submitted that PWs have fully corroborated the case of prosecution so their testimony can be relied upon. 21 Heard and perused the record.
22 The perusal of the record shows that PW9 Sanjay Kumar Tyagi was ACP, SubDivision, Sarita Vihar at the time of incident. PW1 was subordinate and under the administrative control of PW9. PW9 has given a complaint Ex.PW9/A and same was filed in the Court of Ld. ACMM, Patiala House Courts, New Delhi.
23 PW9 has given a complaint Ex.PW9/A u/s 195 CrPC. The perusal of the record shows that it has been filed on Dhan Raj & Anil Vs. State - 12 of 21 18.05.2005 in the court of Ld. ACMM which was forwarded to the court concerned. The order sheet dated 18.05.2005 nowhere shows that the complaint u/s 195 Cr.PC was perused at the time of taking the cognizance meaning thereby that no cognizance was taken on the complaint u/s 195 CrPC. In the absence of cognizance being taken on the complaint u/s 195 CrPC, the prosecution is bad in the eyes of law u/s 186 IPC. Reliance is placed on Crl. Revision Petition No. 20/11, titled as Sunil Vs. State, decided on 3.1.2012 by our own Hon'ble High Court. 24 It is clear from the testimony of PW1 that he was on patrol duty on that day. No question or suggestion is put to him that he was not on duty on that day or he was not on patrol duty in the area on that day meaning thereby that his testimony to this effect has gone unrebutted. His testimony shows that he reached at 08:45 pm near flyover, Sarita Vihar where appellants were quarreling with PW4 Manoj. The testimony of PW4 shows that Dhan Raj & Anil Vs. State - 13 of 21 appellants and accused Jeetu were drunk who stopped him while he was going to his residence. They abused him and he was slapped by accused Jeetu. Ct. Jaipal reached on the spot and tried to pacify them. The testimony of PW1 finds corroboration from the testimony of PW4. They have taken a plea in their statement u/s 313 Cr.PC that they were present at their houses. Further no question or suggestion is put to them to show that they were not present on the spot or they were present at their houses. The plea in the statement u/s 313 Cr.PC is an after though. PW2 & 3 have reached on the spot. The appellants were apprehended by them. Their custody was handed over to PW7 when he reached on the spot for investigation. It shows that their plea in statement u/s 313 CrPC is an after thought. Their presence at the spot stands established.
25 The testimony of PW1 clearly shows that accused Jeetu caught him from behind. Appellant Dhan Raj has handed Dhan Raj & Anil Vs. State - 14 of 21 over danda to appellant Anil at his instance, upon which appellant Anit hit him with danda on head, shoulder and left arm. The testimony of PW4 shows that accused Jeetu hit PW1 with a danda though appellants have grappled with him and PW1. No question or suggestion is put to PW1 that danda was not handed over to appellant Anil by appellant Dhanraj at the instance of appellant Anil. No question is put to him that appellant Anil did not hit him with danda or he was hit with danda by some other accused. He has denied the suggestion that he was not beaten by the appellants. Mere putting up a suggestion is not enough to discard the testimony of the injured PW1.
26 It is clear that PW4 has nowhere deposed that appellant Anil has hit PW1 with danda. There is contradiction to this effect but at the same time, PW1 has stick to his version that he was hit with danda by appellant Anil. He has corroborated his version given to the police in his statement Ex. PW1/A. The Dhan Raj & Anil Vs. State - 15 of 21 incident is nowhere in dispute. The presence of appellants, PW1 and PW4 stand established from the record. In these circumstances, the appellants cannot draw any support from the contradiction.
27 The prosecution has shown PW2 & 3 as an eye witnesses. To my mind, both are not eyewitnesses. The testimony of PW1 shows that both of them reached on the spot after he suffered injuries. The testimony of PW4 nowhere shows that PW2 & 3 were also present at the time of beatings given by the appellants to PW1 and him. His cross examination shows that two police constables reached on the spot on a motorcycle after he called the police at number 100. He has not been re examined by the prosecution to clarify whether both of them have reached prior to the information given to the police at number 100 by PW4. It is clear from the testimony of PW4 that PW2 & 3 are not the eyewitnesses and both of them reached on the spot Dhan Raj & Anil Vs. State - 16 of 21 later on. Their testimony as eyewitnesses cannot be relied upon. 28 There is a contradiction whether PW1 has alone went to Hospital or he was accompanied by PW5 to Hospital. The testimony of PW1 shows that he alone went to Hospital whereas testimony of PW5 shows that PW1 came to PS and thereafter they went to Hospital. There is a contradiction. The incident is dated 18.03.2005. The cross examination of PW1 was recorded on 16.07.2015. The testimony of PW5 has been recorded on 01.10.2013. To my mind, such type of contradiction is likely to come with the passage of the time. The contradiction is minor and inconsequential in nature.
29 There is another contradiction as to who has handed over the danda to the police. PW4 stated that he has handed over the danda to the police. The testimony of PW7 shows that Pw1 has handed over danda Ex.P1 to him. The danda was taken into possession. The danda was identified. There is contradiction to Dhan Raj & Anil Vs. State - 17 of 21 this effect in the testimony of PW4 & 7 but such type of contradiction are bound to occur with the passage of time and no capital can be drawn out of such kind of contradiction. 30 The MLC Ex.C1 of PW1 is admitted by the appellants which shows that he has been examined on the same day at 09:20 pm. PW1 was taken to Hospital immediately after the occurrence which further corroborates the testimony of PW1. 31 The testimony of PW1 is consistent with the version given to the police. PW4 has also supported the case of prosecution. There is no evidence on record to show that they have any motive to depose against the appellants. The evidence of enmity is missing. PW1 is injured. He will not allow the real culprit to go scot free. The testimony of PW1 & 4 is convincing and same is relied upon.
32 In view of my aforesaid discussion, I find an infirmity in the judgment dated 07.05.2018 and accordingly the appellants Dhan Raj & Anil Vs. State - 18 of 21 are acquitted for offence u/s 186/34 IPC.
33 I do not find any infirmity in the judgment dated 07.05.2018 qua their conviction u/s 332/353/34 IPC which is upheld.
34 Ld. Counsel for appellants submitted that appellant Anil is 40 years old who is earning his livelihood by washing the cars. He further submitted that he has large family to support including 4 children. He further submitted that he is sole bread earner of his family so a lenient view be taken. 35 Ld. Counsel further submitted that appellant Dhan Raj is 50 yhears old who is a Chowkidar. He further submitted that he has large family to support including two children. He further submitted that he is the sole bread earner of his family so a lenient view be taken.
36 Ld. Addl. PP for the State submitted that there is nothing on record to take lenient view against them.
Dhan Raj & Anil Vs. State - 19 of 21 37 Heard and perused the record. 38 Appellants have assaulted a public servant and caused
hurt to him while he was performing his duties as a public servant. No person is allowed to take law in his own hand. The assault on a public person is a sign that appellants do not bother about the law or about the uniform services. The appellants can assault any person when they have mustered courage to assault a public servant. There is zero tolerance towards such crime. The appellants are the first offenders as there is nothing on the record to suggest their previous conviction. Both of them are first offenders. They have large family to support. In view of all these facts, the sentence imposed by Ld. Trial Court is modified. 39 Each appellant is sentenced to undergo SI for 5 months for the offence u/s 353 IPC and to undergo SI for 5 months for the offence u/s 332 IPC. Both the sentences shall run concurrently. Benefit of section 428 CrPC is granted.
Dhan Raj & Anil Vs. State - 20 of 21
40 The appeal is partly allowed.
41 Attested copy of the judgment be supplied to the
appellants free of cost.
42 Attested copy of the judgment be placed in the
connected appeal.
43 TCR record alongwith copy of the judgment be sent
to the Ld. Trial Court.
44 Appeal file be consigned to record room.
announced in the
open court on
23 October, 2018 (SURESH KUMAR GUPTA)
th
Addl. Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Dhan Raj & Anil Vs. State - 21 of 21