Delhi District Court
State vs . Raj Kumar Bhardwaj Fir 30/10 ... on 30 April, 2019
State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16)
IN THE COURT OF AJAY GULATI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56334/16
FIR No. 30/10
PS Paschim Vihar
U/s 186/353/333 IPC
STATE
VERSUS
RAJ KUMAR BHARDWAJ
S/O SH. KANHAYA LAL
R/O C/O NIRANJAN SHOKEEN,
H.NO. 175, PEERAGARHI VILLAGE,
DELHI.
Date of Institution : 07.03.2013
Date of Reserving Judgment : 29.04.2019
Date of Judgment : 30.04.2019
JUDGMENT
1. The State (NCT of Delhi) has sent up accused Raj Kumar Bhardwaj to face trial in furtherance to the chargesheet filed after investigation Result: Convicted Page 1 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) of FIR registered u/s 186/353/333 IPC. The accused was subsequently charged with commission of offence under section 186/353/333 IPC i.e. willfully obstructing a public servant from performing his duty, using criminal force for the said purpose and causing grievous hurt to the public servant.
2. Briefly put, as per the chargesheet, on 4.2.2010, complainant Suraj Bhan who is a bus driver with the DTC and deputed at Keshavpur depot, was asked by the accused at Peeragrahi traffic light point to open the bus door. The complainant however, asked the accused to wait at the bus stop. Enraged by the complainant's refusal to oblige, accused tried to hit the complainant with his stick through the gap in window on driver's seat (accused is a handicap and uses stick for walking support). The stick was caught by the complainant whereupon the accused bit complainant's thumb resulting in amputation of the right thumb. The complainant then caught hold of the accused after stepping out of the bus. Thereafter, a policeman standing nearby helped the complainant and the accused to board a TSR on which he reached the PCR van parked at a distance who then took the complainant and accused to hospital and Mangol Puri Police Result: Convicted Page 2 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Station respectively. Subsequently, police station Paschim Vihar was informed regarding the alleged occurrence since Peeragarhi traffic light point fell in the jurisdiction of Paschim Vihar police station. The complainant, accused as well as the statement of the complainant recorded at PS Mangol Puri alongwith MLC of complainant was then handed over to Sub Inspector Radhey Sham Investigating officer (IO) of Police Station Paschim Vihar for further necessary action.
BRIEF FACTS :
3. On 04.02.2010 on receipt of DD no. 80B, SI Radhey Shyam alongwith Ct. Chander Hass reached PS Mangol Puri, where SI Prem Chand produced complainant Suraj Bhan alongwith his statement & MLC, and accused Raj Kumar Bhardwaj. As per statement of the complainant, he was working as a driver in DTC and deputed in Keshopur Depot. On 04.02.2010, at about 05:00 PM, he was coming back with his Bus bearing no. DL1PC7355 (route no. outer Mudrika) towards Kesho Pur Depot. When he reached at Peeragarhi Crossing red light, one person namely Raj Kumar Bhardwaj (as disclosed by the accused later) came to him and asked him to open the door of bus. Complainant told him that he could not open the Result: Convicted Page 3 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) door at a traffic light. Thereafter, that person namely Raj Kumar Bhardwaj hit on the hand of Complainant with a stick which he was already having with him. When the complainant caught the stick of accused, he caught the complainant's hand and cut his right hand thumb with his teeth. Thereafter, the complainant stepped down from the bus and caught hold the accused with the help of conductor Ved Prakash, who also called one police official standing nearby. The police official took the complainant and accused Raj Kumar, and produced both before the PCR officials at Mangol Puri, B Block, Delhi. The PCR officials took the injured to Sanjay Gandhi hospital and accused Raj Kumar to PS Mangol Puri. An FIR for the offence u/s 186/353/333 IPC was subsequently registered against the accused.
4. During investigation, incident spot was inspected and site plan was prepared. Accused Raj Kumar Bhardwaj was formally arrested at the incident spot. Documents regarding posting of complainant as a driver, duty memo, driving licence etc. were collected by the Investigating Officer. In the MLC of the injured, the doctor had opined the nature of injuries as "Grievous" since there was amputation of thumb of the complainant as a result of the alleged bite Result: Convicted Page 4 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) by the accused.
CHARGE :
5. Since the accused was chargesheeted under section 333 of the IPC along with other sections, which offence is triable by the court of Sessions, the case was committed to the Court of Sessions. On 02.12.2013, Charge for the offence Punishable U/s 186/353/333 IPC was framed against the accused to which he pleaded 'not guilty' and claimed trial.
EVIDENCE :
6. To prove its case, the prosecution department has examined 10 witnesses i.e. PW1 HC Balwant Duty officer who recorded the FIR of the present case.
PW2 SI Prem Chand Visited the spot on 04.02.2010 on receipt of DD no. 25A at PS Mangol Puri.
PW3 Sh. Suraj Bhan Injured/complainant. PW4 HC Chander Hass Joined investigation with SI Radhey Result: Convicted Page 5 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Shyam on receiving DD no. 80B from PS Paschim Vihar. PW5 Sh. Pradeep Kumar The then Assistant Court & Accident cases at Keshav Pur Depot who proved documents related to the duty of injured Suraj Bhan. PW6 Dr. Vijay Kumar Examined the injured Suraj Bhan and proved his MLC Ex.PW6/A. PW7 Dr. Manoj Dhingra Gave opinion regarding the nature of injuries suffered by the injured Suraj Bhan at encircled portion X on MLC Ex.PW6/A. PW8 Insp. Radhey Shyam Investigating officer. PW9 Sh. Narender Kumar; Conductor deputed alongwith the driver/injured Suraj Bhan in Vehicle no. DL1PC7355 on the day of incident. Result: Convicted Page 6 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) PW10 Sh. Mam Chand Manager (retired) from DTC, who proved his complaint u/s 195 Cr.P.C. Ex.PW10/A.
7. Relevant portion of their respective examinationsinchief and crossexamination is being reproduced below.
PW1 HC Balwant was the duty officer who proved the computerized copy of FIR Ex.PW1/A and his endorsement made on the rukka Ex.PW1/B. He was briefly cross examined with regard to any personal knowledge about the facts of the case in response to which he answered in the negative.
PW2 Prem Chand Sub Inspector, PS Mangol Puri has deposed that on receipt of DD no.25A, Ex.PW2/A (attested copy), he went to police booth at A Block, in front of Mangol Puri, where he came to know that the injured has been taken to SGM hospital. He went to SGM hospital and found injured Suraj Bhan under treatment. He collected his MLC and came back to PS alongwith the complainant Suraj Bhan. In the Police Station, PCR officials handed over the Result: Convicted Page 7 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) accused Raj Kumar to him. He recorded the statement of injured. Since the present case fell under the jurisdiction of PS Paschim Vihar, SI Prem Chand sent the information to PS Paschim Vihar, upon which, SI Radhey Shyam along with Ct. Chander Hass came to PS Mangol Puri whereupon he handed over the custody of accused Raj Kumar to SI Radhey Shyam and also produced the complainant Suraj Bhan before him. He also handed over the MLC and statement of the injured to SI Radhey Shyam.
In Cross Exam. this witness deposed that when he reached A Block Police Booth Mangol Puri on outer ring road, he was informed that injured and accused had been taken by the PCR Official but the policemen in the police booth did not tell him about the place of occurrence.
PW3 Suraj Bhan is the complainant, who supported the prosecution case and deposed as per his statement U/s 161 Cr.P.C. given before the police. He deposed that on 04.02.2010, he was serving as driver in DTC and was deputed at Keshav Pur Depot. On that day, at about 04:00 PM, he took bus number DL1PC7355, Outer Mudrika from Keshav Pur Depot and it was an AC bus. When he reached at Result: Convicted Page 8 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Peeragarhi Chowk traffic red light, he stopped the bus. The accused, who was correctly identified by the witness before the court, came on the driver side and asked him to open the door of the bus. He told him that he may not be able to open the door of the bus at red light. The accused who was having a stick in his hand, then pointed the same on the rib of the complainant through the window glass of driver side which was slightly open. When the complainant caught the stick of accused, the accused cut his right hand thumb with his teeth. Thereafter, the complainant stepped down from the bus and caught hold the accused with the help of conductor Narender. PCR van took accused and complainant to the PS Mangol Puri and from there, complainant was taken to Sanjay Gandhi hospital.
This witness has proved his statement as Ex.PW3/A. He further deposed that due to mistake, he had stated the name of conductor as Ved Prakash to the police and infact the name of conductor was Narender. This witness has also proved the arrest memo and personal search memo of accused. He further deposed that due to teeth bite given by the accused, his right thumb became ineffective and he still feels pain in his right thumb.
In crossexamination, witness deposed that he had not Result: Convicted Page 9 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) named Narender as the conductor of the bus in his initial statement made to the police. He was also confronted with his statement given to the police on the point that he had apprehended the accused with the help of conductor. Witness clarified that the position of PCR Van was near B Block, Mangol Puri. He further deposed that Conductor had not accompanied him to the PCR Van from Peeragarhi Chowk and that he had reached B Block Mangol Puri near the PCR Van on a TSR from Peeragarhi Chowk. He returned to Peeragarhi Chowk from PS Paschim Vihar on the date of incident. He also deposed in the crossexamination that a substitute driver, who was already present at Peeragarhi Chowk when he returned there, took the bus to Paschim Vihar police station. This witness denied the suggestion put to him by the ld. Defence counsel that accused had never hit him nor had quarreled with him at any point of time and he has been falsely implicated.
PW4 HC Chander Hass deposed that on 04.02.2010 at about 06:15 PM, on receipt of DD no.80B by SI Radhey Shyam, he alongwith SI Radhey Shyam had gone to PS Mangol Puri, where SI Prem Singh produced the injured Suraj Bhan alongwith his statement and accused Result: Convicted Page 10 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Raj Kumar Bhardwaj. SI Radhey Shyam prepared rukka which was given to this witness for getting registration of the FIR. This witness got recorded the FIR at PS Paschim Vihar and handed over a copy of FIR and original rukka to SI Radhey Shyam at Peeragarhi Chowk where incident had occurred. Accused was arrested in the presence of this witness at Peeragarhi crossing.
In crossexamination, he was given suggestions that he did not accompany the IO, that he did not handover copy of the FIR to IO at the incident spot and that accused was not arrested in his presence at the incident spot. However, the witness denied all the above suggestions.
PW5 Sh. Pradeep Kumar, was posted as Assistant, Court & Accident cases in Keshav Pur Depot, who proved the documents relating to the complainant i.e. duty slip issued by Sh. Dinesh Babu, the then ATI as Ex.PW5/A; copy of memo Mark PW5/B and seizure memo of the abovesaid documents as Ex.PW5/C. He also proved the photocopy of I/D Card of driver Suraj Bhan as Mark PW5/D and copy of his driving licence as Mark PW5/E. This witness was not crossexamined.
Result: Convicted Page 11 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) PW6 Dr. Vijay Kumar, head of office, Deep Chand Bandhu hospital, Ashok Vihar, deposed that the injured Suraj Bhan was examined by Dr. Madhur vide MLC no. 1397, Ex.PW6/A under his supervision. Dr. Madhur had left the services of said hospital and his present whereabouts were not known. This witness had seen him (Dr. Madhur) writing and signing and therefore, he was acquainted with his handwriting and signatures. Witness identified Dr. Madhur's signatures at point A on the MLC Ex.PW6/A. He further deposed that being a medical expert, he could say from reading the MLC that right thumb of the patient was amputated due to the injuries sustained by him. The nature of injury suffered by the patient Suraj Bhan was therefore "Grievous" in nature.
In cross-examination, no suggestion was given to him that the injury sustained by the complainant could not have been caused by a human bite.
PW7 Dr. Manoj Dhingra, gave opinion on the MLC of injured at encircled portion X on Ex.PW6/A that the injuries were "Grievous" in nature as there was complete amputation of right thumb.
Result: Convicted Page 12 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) In crossexamination, this witness opined on the nature of injuries sustained. However, no suggestion of any kind was given regarding amputation of thumb of the accused.
PW8 Insp. Radhey Shyam was the Investigating officer (IO) of this case who deposed about the investigation conducted by him. He has proved copy of DD no. 80B as Ex.PW8/A; his endorsement on the rukka as Ex.PW8/B; arrest memo and personal search memo of accused as Ex.PW3/B & Ex.PW3/C and seizure memo of documents of the complainant (Ex.PW5/A to Ex.PW5/E) i.e. duty slip with duplicate gate pass; attested copies of duty roster; identity card, and driving licence of complainant as Ex.PW5/C. In crossexamination, the 2 relevant questions put to him were regarding nonfiling of site plan even though he claimed that he had prepared the same, and that he did not find any blood stains on the road or near the driver seat or on the driver seat. He also admitted that he made no inquiries from the police personnel stationed at Peeragarhi Chowk nor made any effort to trace the policeman who had taken complainant and accused to the PCR Van at B Block, Mangol Puri. He further, admitted that no oral swab of the accused Result: Convicted Page 13 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) was taken.
Witness further deposed in his crossexamination that he made inquiries from the PCR officials, who had brought the injured Suraj Bhan as well as the accused to the police booth from the spot however, he did not record their statements. The witness admitted that Peeragarhi crossing falls within the jurisdiction of PS Paschim Vihar. He admitted that during examination of accused, he did not make request to the concerned doctor to take swab from the mouth of accused so that it could be sent for DNA examination.
Witness denied the suggestions put by ld. Defence counsel to the effect that he had not gone to the spot and that is why the site plan was not on record; that he did not conduct fair investigation in the present case; and the accused has been falsely implicated in this case at the instance of the complainant.
PW9 Sh. Narender Kumar, was the Conductor of Bus no. DL1PC 7355. He deposed that on 04.02.2010, he was on duty as Conductor in the abovesaid Bus with driver Sh. Suraj Bhan and started their duty from Keshopur Depot to Keshopur Depot by covering the outer ring road. He alongwith driver Suraj Bhan left the depot at about 05:00 Result: Convicted Page 14 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) PM for their duty in the abovesaid Bus and when they reached at Peeragarhi crossing red light, the accused (correctly identified by the witness) came at the conductor gate side and knocked the door of the bus and asked him to open the door. He told the accused to go to the bus stop but then he came to the side of the driver, who also refused to open the door. At that point of time, he got angry and gave a stick blow to the driver Suraj Bhan who caught his stick, at which point of time, accused took the thumb of driver in his mouth and bit it. Police officials who were present at the said spot, came there and apprehended the accused. Suraj Bhan was then taken to the hospital.
In cross - examination, the witness deposed that his duty memo was not handed over to the Investigation Officer. He also deposed that he could not hear the conversation between the driver and the accused. Witness claimed to have accompanied Complainant to PS Paschim Vihar and to hospital also. Significant aspect of his crossexamination is regarding his deposition that when he came back to the incident spot along with complainant and IO/SI Radhey Shyam, the bus was driven by the complainant and the accused sat in it. On this point, the complainant had deposed that the bus was driven away from the spot by an alternate driver.
Result: Convicted Page 15 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) PW10 Mam Chand, Retd. Manager (Traffic) DTC deposed that in the month of February, 2010, driver Suraj Bhan took the bus no. 7355 at about 04:00 PM on route Outer Mudrika (+) and started the said bus at about 04:30 PM from Uttam Nagar. At about 05:30 PM, the driver Suraj Bhan informed him telephonically that one passenger had caused injuries on his right thumb by giving teeth bite at Peeragarhi crossing. On 14.12.2010, he made a complaint u/s 195 Cr.P.C. regarding the abovesaid incident and it was handedover by him to the SHO of PS Paschim Vihar. The said complaint was proved by this witness as Ex.PW10/A. This witness was not crossexamined.
8. On conclusion of prosecution evidence, statement of the accused U/s 313 Cr. P. C. was recorded wherein he denied all the allegations appearing against him in view of the evidence led by prosecution. Accused submitted that he was innocent and had been falsely implicated in this case. He further submitted that PW9 Narender Kumar (Conductor) identified him at the instance of IO and injured Suraj Bhan. He had suffered from a major accident which occurred about 1½ years prior to the present incident due to which he is unable Result: Convicted Page 16 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) to walk normally as his right leg has been affected due to the accident. On the date of incident, he had hired a cycle rickshaw and reached bus stand, Peeragarhi. When the bus to Shahdara destination arrived, he was trying to board the bus. Several persons alighted from the bus and they were shouting due to which he fell down on the road. He remained unconscious for about 10 minutes and after regaining consciousness, he noticed that he was sitting on the bus stand seat. Thereafter, Police took him with them and he was under impression that his medical check up will be conducted. It was not done but instead he was involved in this false case. However, he did not lead any evidence in his defense.
9. Before proceeding any further, it would be relevant to give the definitions of Sections 186 IPC; 353 IPC and 333 IPC, which are as follows :
Section 186 IPC :
Obstructing public servant in discharge of public functions - Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months,or with fine Result: Convicted Page 17 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) which may extend to five hundred rupees, or with both. Section 353 IPC :
Assault or criminal force to deter public servant from discharge of his duty - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 333 IPC :
Voluntarily causing grievous hurt to deter public servant from his duty - Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.Result: Convicted Page 18 of 29
State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16)
10. During the course of final submissions, ld. Prosecutor submitted that the guilt of accused regarding the alleged offences stand proved beyond all doubt in view of the testimony of the complainant, PW9, documentary evidence, medical evidence adduced and most importantly, the statement of accused u/s 313 Cr. P.C wherein the accused has not even denied his presence at the incident spot though he has given a different version regarding his arrest.
11. On the other hand, ld. Counsel for the accused highlighted a number of infirmities in the evidence led by the prosecution:
First, starting from the place of occurrence, ld. Counsel for the accused argued that no site plan was filed along with the chargesheet even though the IO in his cross examination admitted that he had prepared the site plan. In the second DD i.e. DD no. 80 B which was received at Paschim Vihar Police station, place of occurrence has been shown as Peeragarhi crossing, whereas in the first DD no. 25 A which was received at police station Mangol Puri, the place of occurrence has been shown in front of police booth A Block, Mangol Puri. Further, in DD no. 80B, there is no mention of any incident Result: Convicted Page 19 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) involving any bus or its driver and passenger.
Second, Ld. Counsel for the accused highlighted that there are conflicting/contradictory versions regarding the transportation of complainant and accused from the incident spot to police station Mangol Puri. Further, conductor of the bus (PW9) deposed that he went along with the complainant to the police station and then to the hospital but the complainant himself was completely silent on this.
Third, Ld. Counsel for the accused further highlighted 2 relevant facts which are as under :
(a) Despite suffering grievous injury which resulted in amputation of the thumb of complainant, no blood stains were found by the Investigating Officer either on the driver seat or near it, or on the road. Even assuming that blood did not spill on the ground, it must have smeared on the clothes of the complainant. However, even the clothes of the complainant were not taken into custody by the Investigating Officer;
(b) There is contradiction in the testimony of PW9 Narender Kumar (bus conductor) and PW3 Suraj Bhan (Complainant) with regard to Result: Convicted Page 20 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) the bus. As per the complainant, the bus was driven away from the spot by a substitute driver whereas PW9 testified that on return to the place of incident, after visiting the police stn. Mangol Puri and the hospital, the bus was driven from the spot by the complainant along with the accused.
Another noteworthy argument raised by Ld. Counsel is regarding non examination of the accused by a doctor. It was submitted that oral examination of the accused by the doctor would have revealed whether there were any traces of the skin of thumb of the complainant in the mouth of the accused.
Further, presence of PW9 Narender (Conductor) is doubtful since the Investigating Officer did not collect the duty slip of Narender to confirm whether he was actually deputed on 4.2.2010 on DTC bus no. 7355 along with the Complainant. His presence at the incident time is also doubtful in view of his testimony that the bus was driven away by the complainant from the spot with accused sitting in it whereas the complainant himself deposed that the bus was driven away from the incident spot by a substitute driver.
Result: Convicted Page 21 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Finally, ld. Counsel argued that in DD No.80B and the complaint, the accused has been referred to as the passenger whereas as per the chargesheet, the accused has been shown as a person who wanted to board the bus.
12. Rival submissions have been carefully considered, oral evidence perused and documentary evidence scanned.
FINDINGS :
13. Regarding uncertainty about the actual place of incident i.e. whether the alleged incident took place at Peeragarhi traffic light stop or in front of Block A Mangol Puri Police Booth, it needs to be clarified that in the first DD no. 25 A (Ex. PW 2/A), place of incident has been shown to be in front of police booth, A block because the PCR van was stationed there and the complainant reached the PCR van on a TSR from the place of occurrence. The 2 nd DD which is DD no. 80B was received at Paschim Vihar police station (from Mangol Puri police station) and by that time the statement of complainant had Result: Convicted Page 22 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) been recorded where the place of incident had been specified as Peeragarhi Traffic light spot. It was further clarified by the ld. Addl. P.P. for the State that police booth is in B Block, Mangol Puri which is right opposite A Block with only a road separating A and B Block. Ambiguity regarding the place of occurrence thus stands clarified.
14. In regard to transportation of complainant and accused from the place of incident to PCR Van and then to hospital/police station, complainant's testimony in Court is corroborated by his statement u/s 161 Cr.P.C. In the statement to the police and in Court deposition, complainant consistently stated that from the place of incident to PCR Van, he was taken alongwith the accused in a TSR by a police official who was standing at Peergarhi Chowk. There is of course a minor contradiction with regard to whether the complainant was taken first to the hospital by the PCR van or to the police station however, keeping in view that there was a gap of 06 years between the date of incident and testimony of the complainant, this minor contradiction can be over looked.
15. Regarding the other two aspects highlighted by ld. Defence Result: Convicted Page 23 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) counsel i.e.(1) absence of site plan despite the IO stating that he prepared it, and (2) lack of investigation regarding the presence of blood stains in the bus or on the clothes of the complainant, ld. Prosecutor has not been able to give a satisfactory rebuttal. In so far as necessary investigation (actually the lack of it) regarding presence of blood stains is concerned, ld. prosecutor fairly admitted that there has been lapse in this regard by the Investigating Officer. Regarding absence of site plan, Ld. Prosecutor had no answer at all. However, both these aspects are again not material to the prosecution case. The place of occurrence has been sufficiently explained and established by the prosecution. Further, the accused himself has not disputed his presence at the incident spot. Additionally, lack of investigation regarding blood stains would have been material if the alleged injury had been disputed by the accused which is not the case. As already highlighted, at no stage did the accused dispute the injury suffered by the complainant or the eventual amputation and further, the examined doctors were not even put a suggestion that the accused could not have been given such an injury with human bite or, that he did not suffer the injury complained of.
Result: Convicted Page 24 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16)
16. It was argued by the ld. Defence counsel that accused should been examined by the doctor for any traces of the skin of thumb of the complainant in the mouth of accused.
Nonexamination of the accused by a doctor is also not a material aspect in view of the fact that when the examining doctors gave their evidence regarding the MLC of complainant and medical opinion regarding nature of injuries, not even a suggestion was given by the ld. counsel for the accused as to whether the injury could not have been caused by a human bite. Accused did not even dispute that the complainant infact had to undergo amputation of thumb as a result of the injury sustained i.e. human bite.
17. Further, it has been argued by the ld. defence counsel that presence of PW9 Narender (Conductor) on the spot is doubtful.
So far as this argument is concerned, any doubt regarding the presence of Conductor Narender along with the complainant on 4.2.2010 in DTC bus no. 7355 stands dispelled in view of the duty slip of the complainant which was collected by the Investigating Officer wherein name of Narender has been mentioned as the Conductor on duty. This duty memo was handed over to IO on 05.02.2010, just a day after the alleged occurrence. Regarding the Result: Convicted Page 25 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) doubt as to who drove away the bus from the spot, there is undoubtedly a contradiction between the statements of the complainant and PW Narender. However, the contradiction pertains to a postfacto occurrence i.e. when the complainant and accused were brought back to the incident spot by the Investigating Officer. This contradiction does not in any way affect the prosecution allegation against the accused though admittedly, ld. prosecutor has not been able to explain the said contradiction.
18. Lastly, ld. Defence counsel argued that in DD no.80B, the accused has been referred to as the passenger.
This argument requires no consideration since the status of the accused at the time of boarding the bus was that of a passenger. There was no other way to describe him except as a passenger. In any case, the accused in his statement u/s 313 Cr. PC also clarified that he was at Peeragarhi flyover bus stop at the time of incident. Ld. Counsel tried to create a doubt by stressing that use of the word 'passenger' indicates that the accused was inside the bus and the alleged incident did not happen in the manner as has been projected by the prosecution. However, the argument is of no value since the Result: Convicted Page 26 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) accused himself in his statement u/s 313 Cr. P.C admitted his presence at the Peeragarhi bus stop.
19. It is true that IO could have conducted a better and more efficient investigation. Citing of PCR van officials as witnesses or the police man who took the complainant and accused to the PCR van officials would have provided greater corroboration to the complainant's testimony but the lack of these witnesses has not affected the veracity of prosecution evidence.
20. The policeman who took the complainant in the TSR to PCR van was not identified but the same is not such a lacunae which can create doubt in the prosecution case. Considering the condition of complainant, he could have hardly been expected to inquire and remember about the name or the designation of the policeman who helped him to hire the TSR.
21. As a post script, it is important to highlight that passenger complaint book which was seized by the IO, forms a part of the judicial file but was not exhibited. Being a part of judicial file, the Result: Convicted Page 27 of 29 State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16) Court looked into it which reveals that the same records the statement of a passenger regarding the occurrence of 04.02.2010. As per the statement, incident happened at the Peeragarhi bus stop (instead of traffic lights) wherein the accused blocked the bus from proceeding further, abused the complainant (bus driver) and then bit his thumb. Thus, even from this complaint book, prosecution allegation stands corroborated materially.
22. In view of the above discussion, it stands proved beyond doubt from the testimony of complainant and PW9 Narender that on 4.2.2010, accused obstructed a public official (complainant) in discharge of his official duties, caused grievous injury to him in the course of such obstruction and used criminal force to deter public servant from discharge of his duty. Ocular evidence has been corroborated by medical evidence. The infirmities pointed out in the prosecution evidence by the ld. Defence counsel, stand rebutted in view of the preceding detailed discussion. Further, complainant had no previous enmity with the accused which could be the basis for false implication.
Result: Convicted Page 28 of 29State Vs. Raj Kumar Bhardwaj FIR 30/10 (56334/16)
23. Consequently, prosecution has successfully proved all the three Charges against the accused. Hence, accused Raj Kumar Bhardwaj is hereby held guilty and convicted for the offence punishable U/s 186/353/333 IPC.
24. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
Be heard on the point of Sentence.
ANNOUNCED IN THE OPEN (AJAY GULATI) COURT ON: 30.04.2019 ASJ05 (West), THC, Delhi.
Digitally
signed by
AJAY AJAY GULATI
Date:
GULATI 2019.05.13
16:05:58
+0530
Result: Convicted Page 29 of 29