Delhi District Court
State vs Deepak Kumar on 15 January, 2018
IN THE COURT OF
Dr. SATINDER KUMAR GAUTAM : ASJ- 03 (EAST)
KARKARDOOMA COURTS : DELHI.
S.C. No: 1550/2016
Old SC No. 294/2015
(ID No.: 02402R0274062015)
State Versus Deepak Kumar
S/o Sh. Radhey Shyam
R/o H.No. T-86, Kawar Singh Ka Makan
Sarai Kale Khan, New Delhi.
FIR No. 294/2015
PS. Pandav Nagar
U/s. 365/395/186/332/353/34 IPC
Chargesheet Filed On : 01.08.2015
Chargesheet Allocated On : 21.09.2015
Court Presided over on : 06.11.2017
Judgment Reserved On : 15.01.2018
Judgment Announced On : 15.01.2018
Final Decision : Conviction
JUDGMENT
1. Succinctly, prosecution case is that after lodging DD No. 31A dated 05.05.2015 while SI Vijay Kumar left the Police Station Pandav Nagar and reached near NH-24 near PWD Office, other police staff including ASI Dinesh Tyagi, Constable Neeraj and Constable Rachin met around 12.25 a.m. (during night hours). At that time, police party noticed one TSR stopped after 100-150 meters after going towards Yamuna Khadar. On getting suspicion, police party SC No. 1550/16 State Vs. Deepak page no. 1 of 10 reached there and noticed five boys got down from the said TSR and ran away in different directions. Out of those one was overpowered while four remaining managed to flee away from there. During said apprehension, the culprit caused obstruction in the duty of the police officials, torn shirt and caused injuries to Constable Neeraj. Sh. Police Mahto, driver of the said TSR bearing registration no. DL-1RK-7653, made his statement to the effect that he used to ply auto rickshaw and during night hours of said day after boarding and getting down the passengers to different points, while he reached near Apolo Bus stand, five persons including the apprehended culprit hired his auto for Galzipur Fly Over and when the TSR reached near Khel Goan Fly Over, one of them got stopped the TSR on the pretext of to answer the call of the nature and three boys got down. It was around 12.20 a.m. and after deboarding the auto those three boys pushed him on the rear seat, caused injuries to him and closed his eyes with his cloth (Gamchha). Four culprits were beating him and also threatened him not to raise any alarm. After sometime, TSR was moving on bumpy road, TSR was stopped, culprits robbed him for his mobile phone and cash amount of Rs. 900/-. Suddenly police arrived there and one of them was apprehended who was driving the TSR.
2. On the basis of the said statement and over all circumstances, present case bearing FIR No. 294/2015 Under Sec. 395/394/365/286/353/332 IPC PS Pandav Nagar was registered. Police remand of accused Deepak was obtained. Accused persons Mustafa and Monu @ Suraj were also arrested in the SC No. 1550/16 State Vs. Deepak page no. 2 of 10 present matter. During judicial TIP proceedings of both these accused, complainant/victim failed to identify them. Remaining accused persons could not be arrested. Proceedings in the present matter was conducted. After completion of investigation, chargesheet was filed against the present accused before the court of ld. Metropolitan Magistrate concerned.
3. After compliance of provisions of Sec. 207 CrPC by the court of ld. MM, case was committed to the Court of Sessions as offence under Sec. 395 IPC was exclusively triable by it.
4. Vide order dated 12.10.2015, charge under Section 365/34; 395/34; 186; 353 and 332 IPC was framed against the accused Deepak Kumar. To the said charges, accused pleaded not guilty and claimed trial.
5. To bring home the guilt of the accused, prosecution has examined twelve witnesses in all who are as under:
PW-1 HC Homender, Duty Officer proved the copy of FIR Ex.PW1/A. PW-2 Police Mehto, complainant, narrated the incident and identified the accused Deepak as one of the culprits responsible for the crime committed upon him. He proved his statement Ex.PW2/A and other memos prepared in his presence.
PW-3 Harender is registered owner of the vehicle bearing registration no. DL-1RK-7653.
PW-4 Constable Neeraj is another material witness of the case SC No. 1550/16 State Vs. Deepak page no. 3 of 10 and one of the victim. He narrated about the crime committed upon him by the accused and proved the memos prepared in his presence.
PW-5 ASI Dinesh Tyagi and PW-9 Constable Rchin joined the proceedings with SI Vijay Kumar.
PW-6 ASI Dharam Pal Singh deposed that after lodging DD No. 30-A dated 04.05.2015 ASI Dinesh Tyagi with Constables Neeraj and Rachin left the PS Pandav Nagar and proved the said DD as Ex.PW6/A. PW-7 Mukesh proved the receipt of mobile phone instrument issued in the name of Police Mahto.
PW-8 Sh. J.P. Nahar, the then DJS, proved the TIP proceedings regarding Monu @ Suraj and Mustfa as Ex.PW8/A to G. PW-10 Constable Mahesh Chandra is a witness to the arrest of accused Monu @ Suraj and proved the proceedings conducted in that respect.
PW-11 Dr. Arti Yadav medically examined Constable Neeraj and Police Mahto proved MLCs Ex.PW11/A and B prepared in that respect.
PW-12 SI Vijay Kumar is the Investigating Officer of the case.
6. The incriminating evidence was put to the accused in the statement recorded under Sec. 313 CrPC. He denied the incriminating evidence put against him and further pleaded that on 05.05.2015 at about 8.30/9 p.m. while he was present at Tea stall at Sarai Kale Khan, 2-3 police officials came to him, asked his name and then took him to the PS on the pretext of an inquiry and them implicated him in this case falsely. Accused did not opt to lead evidence in his SC No. 1550/16 State Vs. Deepak page no. 4 of 10 defence.
7. Having heard the submissions of parties and perused the record.
8. Ld. Addl. PP for the State argued that prosecution has been able to prove the charges through the evidence led by the prosecution with other material on record including MLCs. The complainant, who is an unknown to the accused, clearly supported the prosecution case and also identified him as an accused. It is further argued that there is no reason for false implication of the accused at the hands of the complainant as nothing has come on record for his false implication of the accused for any reason. Ld. Addl. PP, therefore, prayed that the accused is liable to be convicted as per the charges framed against him.
9. Per contra, Sh. Ravi Karan Veshnav, LAC argued that the prosecution has miserably failed to prove the case against the accused beyond all reasonable doubts. He argued that PW-2/Police Mahto is planted witness and twisted the story as per prosecution case. He also argued that there are material contradictions in the statements of the witnesses and non mention of the name of the assailant(s) in the MLCs is fatal to the prosecution and hence, prayed for acquittal of the accused under the circumstances.
10. The accused was charged for the offences punishable under Sections 365/34; 395; 186; 353 and 332 IPC.
11. Case can be divided in two parts - one for the commission of offence punishable under Sections 365/34 and 395 IPC and another for the remaining offences.
SC No. 1550/16 State Vs. Deepak page no. 5 of 10
12. For the first part there is only one and material witness namely PW- 2 Police Mahto. He in unequivocal terms stated that it was accused along with his associates, hired his auto and on the way, he was robbed at the hands of the accused and his associates. No reason is appendix for false implication of the accused at the hands of the complainant. No ill-will, grudge or enmity has either been alleged or proved on any point. Rather during court questions put on 19.02.2016, accused denied the facts that he knew the complainant ever before or having any enmity with the complainant. Complainant would be the most interested person to see the actual culprit behind bars for the commission of offence committed upon him. He was earning his bread by plying the auto on roads of Delhi in wee hours.
13. Moreover, it is more interesting fact is that at one point accused took the defence (during cross-examination on PW-4 on 11.05.2016 ) that accused heard the sound of bullets being fired, he stood up and saw that 4-5 boys running and police officials were chasing them and that accused raised his hands and he was wrongly apprehended in this case and on the other hand, during cross-examination conducted on PW-12 SI Vijay Kumar (conducted on 21.12.2017) he took defence that he was lifted from a tea shop at Sarai Kale Khan around 10.30 p.m. and then implicated in this case. During statement recorded under Sec. 313 CrPC he took the plea that on 05.05.2015 at about 8.30/9 p.m., 2-3 police officials came, asked his name and them lifted him on the pretext of inquiry and then implicated him in this case. These defences are SC No. 1550/16 State Vs. Deepak page no. 6 of 10 contradictory to each other and accused is on different stands at different points. As such, defence of the accused does not inspire confidence and is liable to be declined straightway.
14. Besides the above, if there are any minor contradictions, court is of the view that there is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Hon'ble Apex Court in catina of judgments held various times that the discrepancies which do not shake the basic version of the prosecution case may not be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to the lapse of memory may be given due allowance. I am taking support of case reported as Appabhai Vs. State of Gujrat and reported as AIR 1988 SC 696. Besides the above, in another celebrated authority reported as Nallabothu Venkaiah Vs. State of Andhra Pradesh 2002 VI AD (S.C.) 521 Hon'ble Apex Court was pleased to observe as under:
"It must be borne in mind that criminal justice system must be alive to the expectation of the people. The principle that no innocent man should be punished is equally applicable SC No. 1550/16 State Vs. Deepak page no. 7 of 10 that no guilty man should be allowed to go unpunished. Wrong acquittal of the accused will send a wrong signal to the society. Wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity people then would lose confidence in criminal justice system and would tend to settle their score on the street by exercising muscle power and if such situation is allowed to happen, woe would be the Rule of Law."
15. PW-2 Police Mehto (during his examination conducted on 19.02.2016) in clear and specific terms stated - "they covered my eyes and my mouth with my cloth (gamcha) and started beating me. They threatened me to kill me if I raised any voice. I kept quite... They stopped the TSR at some place and ..... and offenders started to flee away." and thus it is clear that there is no iota of evidence to the offences punishable under either under Sections 365/34 and 395 IPC. As such, accused is acquitted of the offences punishable under these offences i.e. 365/34 IPC & 395 IPC.
16. However, it is clear from the record that ingredients of Section 386 IPC are fulfilled to cover this case. It is clear that accused has not been charged with this offence. There is admitted position of law that any offender can be held guilty for the lesser offence for which he has been charged with. Section 386 IPC is lesser to the offence punishable under Section 395 IPC. With all these observations, accused is held guilty for the offence punishable under Section 386 IPC.
17. For the offences later on committed under Secs. 186; 353 and 332 SC No. 1550/16 State Vs. Deepak page no. 8 of 10 IPC, there is evidence on record of police official and for this, PW-4 is the star witness. He in unequivocal terms stated that he apprehended the accused, he disclosed his identity to him but he started scuffling with him and torn his shirt and scratched his chest from his nails. MLC Ex.PW11/A is clear to the aspect that said victim is having superficial abrasions on chest right side. It is also clearly mentioned in the said MLC under the caption "A/H Assault" and also stated to be beaten by accused. All the police officials present at that time also stated that Constable Neeraj disclosed that he was beaten by the accused during the course of his overpowering him. Shirt Ex.P2 has been identified by the said victim and same is in torn condition. For a moment, in order to implicate the accused for this offence, shirt can be torn but there would be no explanation for the abrasion over chest as mentioned in the MLC of the said victim.
18. There is no dispute on the fact that testimony of police officials be also treated at par to the public witnesses and same be treated as trustworthy, if not found with embellishment. There is no reason for false implication of the accused for this offence. No ill-will, grudge or enmity has either been proved or alleged against any of the police official for his false implication. As mentioned above, defence of the accused is itself contradictory and same does not inspire any confidence. No major contradiction has been pointed out which may shake the prosecution case. Accused obstructed the police, a public servant, in discharge of his duties used criminal force to deter said public servant from discharging the duties and caused simple hurt to Constable Neeraj for this and SC No. 1550/16 State Vs. Deepak page no. 9 of 10 proved all this beyond reasonable doubts.
19. With all above observations, it is clear that prosecution has also able to prove the case against the accused beyond reasonable doubts for the offences punishable under Sec.186/353/332IPC and as such, he is held guilty for the said offences.
20. To sum up is that accused is acquitted of the offences punishable under Sections 365/34 and 395 IPC but is held guilty under Sec. 386 IPC and 186/353/332 IPC.
Announced in the open Court on 15th day of January, 2018 (Dr. Satinder Kumar Gautam) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.
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