Delhi District Court
The State vs Vikram @ Vicky on 27 May, 2014
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 106/2014
UID NO . : 02404R0291022011
FIR no :720/2005
P. S : Mangol Puri
u/s 186/353/307
IPC & 25 Arms Act.
The State versus Vikram @ Vicky
S/O Pradeep Kumar
R/O A-3/35 , Nand Nagri, Delhi.
Date of committal to session court : 07.12.2011
Date of argument : 17.05.2014
Date of order : 27.05.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) On 20.10.2005 at about 7:05 pm, HC Pawan Kumar, Constable Rakesh (PW5) and ASI Sushil Kumar (PW1) were petrolling in the area of Mangol Puri and were present near police post industrial area, Mangol Puri . They noticed one boy(co-accused absconding) siting on a motorcycle near Railway track, gate no. 4 and one another boy i.e accused Vikram @ Vicky, was SC No. 106/14 State vs Vikram @ Vicky (Page 1 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act standing there near bushes. All the police officials namely ASI Sushil Kumar(PW1), HC Pawan and Constable Rakesh(PW5) were in uniform and on seeing them the person who was sitting on the motorcycle (co-accused absconding) asked accused Vikram @ Vicky"Bhag Jaldi aa" on which the police officials became suspicious and ran towards the motorcycle . Thereafter the said motorcyclist started his motorcycle and fled away towards the railway line and he could not be apprehended as he crossed the railway line.
Aforesaid police officials tried to apprehend accused Vikram @ Vicky who took a turn towards them and fired upon ASI Sushil Kumar (PW1) from the weapon which he was carrying in his hand . HC Pawan pushed him (ASI Sushil Kumar) due to which he could save him from the bullet injury and bullet passed in between ASI Sushil Kumar ( PW1) and HC Pawan. Accused Vikram @ Vicky tried to re-load the Desi Katta , which he was carrying, after taking out a bullet from his pocket . However in the meanwhile he was over powered by said police officials and they took Desi Katta and live cartridges from his possession .
b) The information of the said incident was given to the Police post, Sanjay Gandhi Memorial ( SGM) hospital which was recorded there vide DD no.26. Said DD was marked to Incharge police post, SGM Hospital.
c) On 20.10.2005, S.I R.K Mann(PW7) who was posted as Incharge police post SGM hospital, on receipt of DD no.26 reached at the spot and met HC Pawan Kumar, constable Rakesh (PW5) and HC Sushil Kumar (ASI) (PW1). They produced accused Vikram @ Vicky to him. SI R.K Mann (PW7) was also handed over the Desi Katta and one live cartridge recovered from the possession of accused Vikram @ Vicky .
SC No. 106/14 State vs Vikram @ Vicky (Page 2 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
d) S.I R.K Mann(PW7) checked the country made pistol and unloaded it and on being unloaded, one empty cartridge was found inside the barrel which was taken out. He prepared the sketch of country made pistol and live cartridge and empty cartridge . The aforesaid desi katta and live cartridge alongwith empty cartridge were kept in a cloth parcel and sealed with the seal of RKM and seized. S.I R.K Mann(PW7) made endorsement on the statement of ASI Sushil Kumar(PW1) and prepared the Rukka and got registered the FIR through HC Rakesh. Accused Vikram @ Vicky was arrested, his personal search was conducted and his disclosure statement was recorded.
e) After the completion of investigation, accused Vikram @ Vicky was chargesheeted for offences u/s 186/353/307 IPC and u/s 25 & 27 Arms Act.
f) Vide order dated 08.6.2007, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 307 IPC was exclusively triable by the court of sessions, therefore, vide order dated 7.12.2011, case was committed to the court of sessions .
2. Vide order dated 6.2.2012, ld predecessor of this court decided the charge and accordingly, charges u/s 186/353/307/34 IPC and 25 Arms Act were framed against the accused to which he pleaded not guilty and claimed to be tried.
SC No. 106/14 State vs Vikram @ Vicky (Page 3 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
3. In order to prove its case, prosecution has
examined as many as nine witnesses which are as
follows:
i) PW1 ASI Sushil Kumar :- He is the member of the police team
patrolling in the area of Mangol puri on the day of occurrence. He is also the complainant in the present case. He has deposed on the lines of the complaint ExPW1/A on the basis of which rukka was prepared and present case was registered. The contents of the said complaint have already been mentioned in para 1 (a) herein above , therefore , same are not being repeated for the sake of brevity , though I would be discussing while giving the findings.
ii) PW2 Sh Kumar Gyanesh :- On 01.03.2007, he was posted as ACP Sultan Puri . He deposed that after perusing the complete case file, he had given the complaint U/s 195 CrPC ExPW2/A .
iii) PW3 Dr. Sagar Preet :- He was posted as Addl Deputy Commissioner of Police, North West District on 21.2.2007 . He accorded sanction u/s 39 Arms Act ExPW3/A.
iv) PW4 Ct. Shri Krishan :- He is the formal witness who deposited the case property to the FSL vide RC no 681 .
v) PW5 Ct. Rakesh Kumar :- He was with HC Sushil Kumar (PW1) and has deposed exactly on the lines of PW1 AS.I Sushil Kumar and the contents of the initial complaint lodged by ASI Sushil Kumar.
SC No. 106/14 State vs Vikram @ Vicky (Page 4 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
vi) PW6 HC Suresh Kumar :- He was posted at Police post , SGM Hospital. He has recorded the departure of HC Pawan , constable Rakesh (PW5) and HC Sushil (PW1) for patrolling in the area of Mangol Puri vide DD no. 24 ExPW6/A on 20.10.2005.
vii) PW7 S.I R.K Mann :- He is the IO of the present case. He deposed that on 20.10.2005, He was was posted as Incharge police post SGM hospital and on receipt of DD no.26 ExPW6/B reached at the spot where he met HC Pawan Kumar, constable Rakesh (PW5) and HC Sushil Kumar (ASI) (PW1) at that spot who produced accused Vikram@ Vicky him. They also handed over the Desi Katta and live cartridge recovered from the possession of accused Vikram @ Vicky. PW7 further deposed that he recorded statement of HC Sushil Kumar(PW1) ExPW1/A and requested some public persons to join the investigation but none of them joined the investigation and left the spot after showing their inability and without disclosing their names and addresses. He checked the country made pistol and unloaded it and one empty cartridge was found inside the barrel which was taken out. He prepared the sketch of country made pistol and live cartridges and empty cartridges ExPW1/B and kept the aforesaid desi katta and live cartridge alongwith empty cartridge in a cloth parcel and sealed with the seal of RKM and seized vide seizure memo ExPW1/C and also filled up the FSL form on the spot and thereafter seal was handed over to HC Pawan after its use. He made endorsement on the statement of ASI Sushil Kumar(PW1) and prepared the Rukka ExPW7/A and and got registered the FIR Ex C1 through Ct. Rakesh. He prepared site plan ExPW7/B on the pointing SC No. 106/14 State vs Vikram @ Vicky (Page 5 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act out of HC Sushil (PW1) . Accused Vikram @ Vicky was arrested vide arrest memo ExPW1/D , his personal search was conducted vide memo ExPW1/E and his disclosure statement ExPW1/F was recorded. On 23.1.2006 exhibits were sent to FSL Rohini . He was cross examined by the ld counsel for the accused.
viii) PW8 S.I Ajay Kumar : He is the witness who collected the FSL result from MHC(M) and then applied for sanction u/s 39 Arms Act and obtained the same on 02.2.2007 .
ix) PW9 Sh V.R Anand , Assitant Director Ballistics, FSL Rohini : He deposed that on 23.1.2006 he examined the case property and found that country made pistol, which was received vide sealed parcel sealed with the seal of RKM was in working order and test fire conducted successfully . He prepared his report ExPW9/A.
4. Thereafter, statement of accused u/s 313 CrPC was recorded. During the statement u/s 313 CrPC, wherein he has denied the allegations of the prosecution. He opted to lead evidence in his defence .
5. Accused has examined one Sh Pradeep Rana , father of the accused as DW1 and Rajender Kumar , who is uncle (Chacha) of the accused as DW2.
SC No. 106/14 State vs Vikram @ Vicky (Page 6 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
6. I have heard the ld Addl P.P for the state and the ld counsel for the accused. I have also perused the record very carefully.
7. Accused Vikram @ Vicky is facing trial on following three counts :
a) He voluntarily obstructed the public servants and used the criminal force against them while they were discharging their official duties ( charges u/s 186/353 IPC) .
b) He fired on HC Sushil Kumar( PW1) with country made pistol (charges u/s 307 IPC ) .
c) He was found in possession of country made pistol with one live and one empty cartridge ( charges u/s 25 Arms Act).
Charges u/s 186/353 IPC
8. Section 186,IPC is applicable to a case where the accused voluntarily obstructed the public servant in discharge of his public function but under section 353 the ingredients of assault or use of criminal force, while the public servant is doing his duty as such is necessary.
9. PW1 ASI Sushil Kumar deposed that on 20.10.2005, he alongwith HC Pawan Kumar and constable Rakesh (PW5) were on petrolling duty in the area of P.S Mangol SC No. 106/14 State vs Vikram @ Vicky (Page 7 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act Puri and at about 7:05 pm, when they were present near police post, industrial area, Mangol Puri, they noticed one boy sitting on a motorcycle make Pulsar of black colour near Railway track, gate no.4. One another boy was standing near the bushes near the railway phatak. He further deposed that they all were in uniform and on seeing them the boy who was sitting on the motorcycle asked another boy 'Vicky bhag jaldi aa' on which they became suspicious and they all the three police officials ran towards the motorcycle on which the motorcyclist started his motorcycle and tried to fled away towards the railway line and crossed the railway line.
10. PW1 ASI Sushil Kumar further deposed the when they tried to apprehend the another boy (accused present in the court, correctly identified ), he turned towards them and fired upon him by the weapon which he was carrying in his hand.
11. Constable Rakesh (PW5) who was with the HC Sushil Kumar (ASI) (PW1) deposed on the lines of PW1 ASI Sushil Kumar and has corroborated the testimony of PW1. PW1 ASI Sushil Kumar and PW5 ASI Sushil Kumar were cross SC No. 106/14 State vs Vikram @ Vicky (Page 8 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act examined by the ld counsel for the accused but even during their cross examination, ld counsel for the accused could not impeach their testimonies and there is no material contradiction.
12. Even during their cross examination, PW1 ASI Sushil Kumar replied that he made departure entry and DD writer recorded the same. They started from the police post on foot. The distance between the spot and the police post is 1-1 ¼ km. They had seen the boy on the motorcycle from 25 yards. During his cross examination, constable Rakesh (PW5) replied that they left the police post at about 5:30:6:00 pm and departure entry was made at that time. The distance between the police post and the place of incident is about 1 km. The police booth is situated near the railway phatak at distance of about 500-550 paces. Accused Vikram @ Vicky has fired towards HC Sushil (PW1) from a distance of about 25-30 feets.
13. Both these witnesses have consistently stated that they were on petrolling duty near police post industrial area, Mangol Puri and they noticed one boy SC No. 106/14 State vs Vikram @ Vicky (Page 9 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act sitting on motorcycle and another boy was standing near bushes near railway phatak. It has come on record that they were in uniform and on seeing them the person sitting on the motorcycle asked another boy "
vicky bhag jaldi se". When the police officials ran towards the motorcyclist, motorcyclist tried to fled away towards the railway line and managed to cross the railway line but when they tried to apprehended the other boy i.e accused Vickram @ Vicky, he took a turn towards them and fired upon HC Sushil Kumar (PW1) by the weapon which he was carrying in his hand.
14. The departure of ASI Sushil Kumar (PW1), HC Pawan and constable Rakesh (PW5) on 20.10.2005 in respect of patrolling in the Mangol Puri area has been established. HC Suresh Kumar (PW6) deposed that on 20.10.2005, he was posted as DD writer from 4:00 pm to 12 mid night and on that day at about 6:00 pm HC Pawan, Constable Rakesh (PW5) and HC Sushil(Pw1) left the police post for patrolling and he made their departure entry in DD no.24 ExPW6/A. He further deposed that on the same day at about 7:18 pm, HC Sushil Kumar (PW1) telephonicaly informed him that one boy had fired upon him and he recorded this message SC No. 106/14 State vs Vikram @ Vicky (Page 10 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act vide DD no.26 ExPW6/B. he aforesaid testimony has not been disputed by the accused.
15. PW2 Kumar Gyanesh has proved the complaint u/s 195 CrPC ExPW2/A . PW2 has not been cross examined by the accused and in these circumstances, complaint ExPW2/A u/s 195 CrPC given by him stands proved which was necessary to prosecute the accused for the offence u/s 186 IPC as in terms of section 195 CrPC cognizance of the offence u/s 186 IPC is barred in the absence of such complaint .
16. From the aforesaid testimony of prosecution witnesses and documents on record, prosecution has been able to establish beyond reasonable doubt that (a) on 20.10.2005 , HC Sushil Kumar (PW1) alongwith HC Pawan Kumar and constable Rakesh (PW5) were patrolling in the area of Mangol Puri (b) they being the police officials were the public servants (c) on seeing these police officials accused Vikram @ Vicky alongwith his associate (absconding) tried to run and the said associate of accused Vikram @ Vicky managed to run away but accused Vikram @ Vicky was apprehended. (d) when said police officials ran towards accused Vikram @ Vicky and tried to catch him, accused Vikram @ Vicky fired upon HC Sushil Kumar (ASI) (PW1). (e) This shows that accused Vikram @ Vicky voluntarily obstructed the public servant i.e HC SC No. 106/14 State vs Vikram @ Vicky (Page 11 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act Sushil Kumar (PW1), HC Pawan and Constable Rakesh(PW5) in discharge of their public function i.e when they tried to apprehend the accused Vikram @ Vicky in suspicious conditions (f) accused Vikram @ Vicky by firing upon PW1 HC Sushil Kumar assaulted him and used criminal force to deter him alongwith other police officials from apprehending him. In these circumstances, all the ingredients of section 186/353 IPC stands proved.
Charges u/s 307 IPC
17. In order to bring the case within the ambit of section 307 IPC, it must be shown that accused acted with such intention or knowledge or under such circumstances that if by that act he caused death, he would be guilty of murder . So the intention was under
the knowledge to commit murder must exist. It is sufficient to justify the conviction u/s 307 IPC if there is present an intent coupled with some overt act in execution there off.
18. Now, take the case in hand. In the present case HC Sushil Kumar (PW1) and constable Rakesh (PW5) have categorically stated that when they tried to apprehend the another boy (accused Vikram @ SC No. 106/14 State vs Vikram @ Vicky (Page 12 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act Vicky present in the court) , then he turned towards them and fired upon HC Sushil Kumar (PW1) by a weapon which he was carrying in his hand. Since, the accused fired upon HC Sushil Kumar (PW1), HC Pawan pushed him due to which he could save him ( PW1 Sushil Kumar) from the bullet injury and bullet passed in between him and HC Pawan. PW1 HC Sushil Kumar deposed that accused tried to reload the desi katta after taking out bullet from his pocket, however accused was overpowered by them and they took out the desi katta and live cartridge from his possession.
19. Even during his cross examination, PW1 regarding firing replied that accused fired from a distance of 5-10 yards and the bullet had passed between him and HC Pawan. He further replied that he snatched the desi katta from the hand of the accused and the live cartridge had not fallen from the hand of the accused during the overpowering.
20. Same is the case with the cross examination of constable Rakesh (PW5) who replied that accused Vikram @ Vicky had fired towards HC Sushil SC No. 106/14 State vs Vikram @ Vicky (Page 13 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act Kumar (PW1) and from distance of about 25-30 feets . He further replied that HC Sushil Kumar (PW1) and HC Pawan has snatched the country made pistol and live cartridges from the hand of accused Vikram @ Vicky.
21. Learned counsel contended that no one was injured thus ingredients of offence under Section 307 are not attracted. I do not find any force in this contention. To justify conviction under Section 307 IPC it is not essential that bodily injury capable of causing death, should have been inflicted and an attempt in order to be criminal need not be penultimate act foreboding death. It is sufficient in law if intent is present coupled with some overt act in execution thereof, such act being proximate to the crime and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation.
SC No. 106/14 State vs Vikram @ Vicky (Page 14 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
22. In Om Prakash v. State of Punjab,
AIR 1961 SC 1782, Apex Court held that in cases of attempt to commit murder by fire arms, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under Section 307 IPC is made out.
23. Hon,ble Supreme Court in State of Maharashtra v. Kashirao, AIR 2003 (SC) 3901 has held thus, "The essential ingredients required to be proved in the case of an offence under Section 307 are:-
(i) That the death of a human being was attempted; (ii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause
(a) death, or (b) such bodily injury as is likely to cause SC No. 106/14 State vs Vikram @ Vicky (Page 15 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act death, the accused having no excuse for incurring the risk of causing such death or injury". It was further observed that for the application of Section 307 IPC it is not necessary that the injury capable of causing death should have been actually inflicted. Therefore, the aforesaid argument of the ld counsel for the accused is hereby rejected.
24. In my view, if an accused does an act with sufficient guilty intention and knowledge and in circumstances, which do not from their nature afford a defence from a charge of murder, and if the act is of such a nature as would have caused death in the usual course of events but for something beyond the accused's control which prevented that result, then the case would fall within the Section 307 IPC. What Section 307 IPC really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would amount to murder in the normal course of events.
25. In this case, accused with co-accused person started running in order to evade apprehension by the SC No. 106/14 State vs Vikram @ Vicky (Page 16 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act police party and with a view to stop them and in order to deter them from their continuous pursuit, he aimed towards the police party and fired on them . From the above circumstances, accused's intention becomes clear that he had intended to cause such bodily injuries to one or more members of the police party by using fire arms, which would have been capable of causing death, had shots have hit any of the members of police party. It is only by the act of God that the aim taken by the accused while running missed and fortunately enough for the police party that no one sustained injuries. In the facts of this case, in my view, offence under Section 307 IPC is made out.
Charges u/s 25 Arms Act
26. Accused has been charged for offences u/s 25/54/59 Arms Act also on the allegations that on 20.10.2005 , at about 7:05 pm , he was found in possession of one Desi Katta alongwith one live and one empty cartridges.
27. As stated herein above PW1 HC Sushil Kumar (PW1) and Constable Rakesh (PW5) deposed that desi SC No. 106/14 State vs Vikram @ Vicky (Page 17 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act katta alongwith one live cartridge were snatched by HC Sushil Kumar (PW1) and was handed over to S.I R.K Mann(PW7) when he reached there. S.I R.K Mann(PW7) deposed that he checked the desi katta and found that one empty cartridge was found in it. He prepared the sketch of country made pistol, live cartridge and empty cartridge exhibit and prepared the sketch of the said pistol ExPW1/B and cartridge were measured and details were mentioned in ExPW1/B. The said articles were kept in cloth parcel and sealed with the seal of RKM and seized vide seizure memo ExPW1/C .
28. It has also come on record that S.I R.K Mann (PW7) IO of the case reached at the spot . Desi Katta alongwith live cartridge was handed over to him. S.I R.K Mann(PW7) take the pistol and one empty cartridge was found in it. The aforesaid weapon of offence was sent to the FSL for its examination and as per the FSL result ExPW9/A, it was found that country made pistol was in working order and its test fire was conducted successfully.
SC No. 106/14 State vs Vikram @ Vicky (Page 18 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
29. PW4 Ct. Shri Krishan deposed that on
23.1.2006, he received one sealed parcel sealed with the seal of RKM alongwith FSL form from MHC(M) vide RC no.
681. He deposited the case property at FSL Rohini and on returning handed over the receipt copy of RC alongwith acknowledgment to MHC(M). he further deposed that the case property remained intact till the same remained in his possession.
30. Sh V.R Anand(PW9) ballistic expert, deposed that the individual characteristic of firing pin marks present on empty cartridges and on test fire cartridges were compared under comparison microscope and were found identical. He opined that the cartridge case ECI( empty cartridge) has been fired through the country made pistol mark as F1. Even this testimony of PW9 has gone unrebutted and undisputed. From this, it stands proved that accused Vikram @ Vicky was found in possession of desi katta , one live cartridge and one empty cartridge without any authority or licence .
31. Ld counsel for the accused has taken me to the testimony of prosecution witnesses particularly cross SC No. 106/14 State vs Vikram @ Vicky (Page 19 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act examination of PW1 ASI Sushil Kumar, PW5 Constable Rakesh and PW7 S.I R.K Mann and submitted that there is a contradiction regarding the proceedings carried out by these police officials. He submitted that the testimonies of these witnesses are not consistent on the point i.e scale used by them , the vehicle used by S.I R.K Mann for reached on the spot, the distance from where accused fired, presence of the relative of the accused on the spot , leaving the spot by the police officials etc, .
32. Learned counsel appearing for the accused vainly attempted to point out aforesaid discrepancies in the statement of the prosecution witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions.
SC No. 106/14 State vs Vikram @ Vicky (Page 20 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
33. In State of U.P. v. Naresh, (2011) 4 SCC 324, the Hon'ble Supreme Court after considering a large number of its earlier judgments held:
" In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence."
34. Thus, the law is well settled that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored. In case however the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. In the instant case, learned defence counsel has failed to demonstrate from the evidence of the prosecution SC No. 106/14 State vs Vikram @ Vicky (Page 21 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act witnesses such discrepancies, omissions, improvements and the like as would enable me to reject their testimonies after testing the same on the anvil of the law laid down by the Apex Court.
35. Ld counsel further argued that there is no public witness in the present case. He submitted that during the cross examination of PW5 Constable Rakesh, it has come on the record that public persons had gathered on the spot but despite that they were not made the witnesses. He further argued that the explanation of the IO of non-joining of public persons in the investigation does not inspire confidence.
36. I do not agree with the contention of the ld counsel for the accused , that the statements of PW-1, 5, and 7 should be disbelieved because no public witnesses participated in the proceedings and there is discrepancy in the statements as who and how public witnesses were requested to join but had refused. It is generally seen that it is difficult and virtually impossible to get and make public witnesses to participate and be part of a police raiding team in such cases. This practical reality cannot be ignored and forgotten. A realistic and pragmatic SC No. 106/14 State vs Vikram @ Vicky (Page 22 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act approach has to be taken. This has been reiterated by the Hon'ble Supreme Court in Dharampal Singh v. State of Punjab, (2010) 9 SCC 608.
37. The obligation to take public witnesses is not absolute. In the present case, I have contemporaneous official records in form of DD entries, recovery of Dessi Kutta which corroborate the testimony of the police officers. I note that statements made by the police officers in the court cannot be rejected merely on the ground that the statements are made by persons belonging to the police force. This cannot be a reason for me to discard and not accept these statements. In Aher Raja Khima v. State of Saurashtra , (1955) 2 SCR 1285 it has been held that:
" . ...The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
The case of the prosecution cannot be rejected only on the ground that independent witnesses have not been examined, in case on appraisal of the evidence on record the court finds the case of the prosecution to be trustworthy. It has come in the evidence of the prosecution witnesses that an attempt was made to join person from public at the time of SC No. 106/14 State vs Vikram @ Vicky (Page 23 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act search but none was available. In the face of it mere absence of independent witness at the time of search and seizure will not render the case of the prosecution unreliable."
38. Law is not that testimonies of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimonies of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy . In this regard help can be taken from the decision of a cases reported as JT 1996(3) SC 120, JT 1999 (2) SC 388, (2001) 1 SCC 652 and AIR 1995 SC 1930.
39. As stated herein above accused has examined two witnesses in his defence but it could not help the accused. It is not in dispute that DW1 Pradeep Rana is the father of the accused and DW2 Rajender Kumar is his uncle( Chacha). Both these witnesses, being interested witnesses would naturally depose in favour of the accused. As per their testimony , accused Vikram @ Vicky was picked up from the house of Rajender Kumar (DW2).
SC No. 106/14 State vs Vikram @ Vicky (Page 24 of 26 )
D.O.D 27.5.2014 FIR no. 720/2005
P.S Mangol Puri
u/s 186/353/307 IPC and 25 Arms Act
40. During his cross examination, DW1 replied that he does not know the name of those police officers and he did not make any complaint against them who allegedly picked up him and his son from the house of his brother. Similarly, DW2 Rajender Kumar during his cross examination replied that he did not make any complaint to the authorities in this regard. This is very surprising that two persons have been picked up 5-6 police officials, who were not in uniform, as claimed by the DW2, and were taken to some undisclosed destination. It is not the case of these witnesses that said police officers had disclosed that they are being taken to police station.
41. That being so, a normal person would at least make a call to the police. Not only that DW2 Rajender Kumar, who is the real brother of DW1 and uncle of accused did not make any effort to know as to what happened to aforesaid persons. In the background of the aforesaid fact, the testimonies of DW1 and DW2 does not inspire any confidence of this court.
42. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused in respect of offences u/s SC No. 106/14 State vs Vikram @ Vicky (Page 25 of 26 ) D.O.D 27.5.2014 FIR no. 720/2005 P.S Mangol Puri u/s 186/353/307 IPC and 25 Arms Act 186/353/307 IPC and 25 Arms Act.
Consequently, accused namely Vikram @ Vicky stands convicted u/s 186/353/307 IPC and 25 Arms Act.
Announced in the open (Rajesh Kumar Goel) Court today i.e 27.5.2014 ASJ-5, North Rohini Court SC No. 106/14 State vs Vikram @ Vicky (Page 26 of 26 )