Delhi District Court
State vs . Narender Kumar on 25 February, 2016
FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 99/14 Unique Case ID No. 02404R0036302014 State Vs. Narender Kumar S/o Sh. Kamal Kishore R/o H.No. 272, B4, Pocket13, Narela, Delhi. FIR No. : 534/13 Police Station : Narela Under Sections : 186/353/332/307/34 IPC Date of committal to Sessions Court : 10.02.2014 Date on which judgment was reserved: 25.02.2016 Date on which Judgment pronounced : 25.02.2016 JUDGMENT:
1. The case of prosecution as mentioned in the chargesheet is as under:
(i). That on13.08.2013 at 6.25 am, intimation was received in PS Narela that one Beat Constable on duty at Lampur Border, had been hit by motorcycle and he was taken to hospital. Said information was recorded vide DD no. 24B ( Ex. PW7/B) and contents thereof were telephonically informed to ASI Surender (PW10) for necessary action. On receipt of said information, ASI Surender alongwith Ct. Mukesh (PW5) reached at the place of information, where they met Ct. Rajesh (PW9) who informed that Ct. Jaswinder (PW4) had been State V/s Narender Kumar ("Convicted") Page 1 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 removed by PCR Van to the hospital. Ct. Rajesh also produced one white plastic bag and motorcycle no. DL8SAA7961 make Pulsar. On checking the said plastic bag, same was found containing quarter bottles of liquor meant for Sale in Haryana. After leaving Ct. Rajesh (PW9) at the spot for keeping custody of the motorcycle and plastic bag containing illicit liquor, both the other police officials went to SRHC hospital, where Ct. Jaswinder (PW4) was found admitted there. ASI Surender collected MLC of Ct. Jaswinder who was declared fit for statement;
(ii). It is further the case of prosecution that ASI Surender recorded statement (PW4/A) of Ct. Jaswinder Singh, wherein he claimed that on 13.08.2013 at about 4.30 am, he alongwith Ct. Rajesh had left for picket duty and while they were checking vehicles at Lampur side, coming from the side of Haryana, at about 6.10 am, one motorcycle no. DL8SAA7961 being ridden by two boys coming from the side of Haryana, was given signal to stop the motorcycle. However, the driver of said motorcycle uttered the words ' Side Mai Hath Jaa Nahi to Motorcycle Uppar Chadha Doonga'. When Ct. Rajesh tried to stop the said motorcycle, the driver of motorcycle tried to hit the motorcycle against Ct. Rajesh who somehow managed to save himself by jumping on the other side. When he ( Ct. Jaswinder) tried to stop the said motorcycle, the boy sitting as pillion rider, asked the driver not to stop the motorcycle and to hit the same against him. Ultimately, driver of motorcycle hit the motorcycle State V/s Narender Kumar ("Convicted") Page 2 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 against him, due to which he fell down on the road and sustained injuries on his forehead. The said police officials managed to apprehend accused Narender and JCL Bhjanwar Singh but accused managed to flee away after giving fists blows;
(iii). On the basis of said information, FIR in question for the offences punishable U/s 186/353/332/307/34 IPC was got registered through Ct. Mukesh and investigation was entrusted to ASI Surender Singh;
(iv). It is further the case of prosecution that IO ASI Surender Singh prepared site plan of the place of occurrence at the instance of Ct. Rajesh, arrested the accused and collected result on MLC of complainant/injured namely Ct. Jaswinder. He also recorded statements U/s 161 Cr.PC of relevant witnesses. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to this Court.
3. After hearing arguments on the point of charge, charge for the offences punishable u/s 186/353/332/307/34 IPC was framed against the accused vide order dated 15.04.2014, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as ten witnesses namely PW1 HC Ved Singh, PW2 ACP Ganshyam Bansal, PW3 Dr. Rajesh Kumar, PW4 Ct. Jaswinder, PW5 Ct. Mukesh, PW6 Ct. Sonu, PW7 Ct. Ram Dhan, PW8 HC Jagbir Singh, PW9 Ct. Rajesh and PW10 SI Surender during trial.
State V/s Narender Kumar ("Convicted") Page 3 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016
5. It may be mentioned here that Ld. Additional PP dropped PW namely SI P.L Meena from the list of witnesses on 02.12.2014 on the ground that said witness had only conducted investigation in respect of JCL Bhanwar Singh in the present case. Ld. Additional PP also dropped Dr. Rajiv Ranjan from the list of witnesses on the ground that said doctor was one of the members of Medical Board which had conducted ossification test of JCL Bhanwar Singh and thus, he was not a relevant witness in the present case.
6. Thereafter, statement U/s 313 Cr.PC of accused was recorded, during which incriminating evidence were put to him but he denied the same. The accused claimed his innocence. However, his defence is of general denial. He also did not opt to lead DE towards his defence.
7. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and Ld. counsel Sh. Sumit Bhardwaj Adv. on behalf of accused. I have also gone through the material available on record.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial.
POLICE WITNESSES:
9. PW1 HC Ved Singh: This witness was working as MHC(M) in PS Narela during the relevant period. He deposed that on 13.08.2013, ASI Surender Kumar had deposited one motorcycle no. DL8SAA7961 make Pulsar of black colour, two pullandas sealed with the State V/s Narender Kumar ("Convicted") Page 4 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 seal of SRHC Hospital, one sample seal of same specimen and another pullanda sealed with the seal of SRHC Hospital containing blood sample, in malkhana, vide entry at serial no. 422 of Register no. 19. He exhibited copy of said entry in register no. 19 as Ex.PW1/A. He denied the relevant suggestions put to him on behalf of accused.
10. PW2 Sh. Ganshyam Bansal: He was posted as ACP Sub Division Alipur during the relevant period. He deposed that after going through the material placed before him by IO of the case, he found that Ct. Jaswinder was performing his official duty on 13.08.2013 at about 6.10 am while he was on picket duty at Lampur Border Picket in front of Sewa Sadan. Thus, he prepared complaint U/s 195 Cr.PC Ex. PW2/A for prosecuting accused Narender Kumar for the offence punishable U/s 186 IPC.
In his cross examination, he denied the suggestions that complaint Ex. PW2/A was prepared in mechanical manner without going through the relevant records or that no proper procedure was followed in filing the said complaint before the Court of law.
11. PW4 Ct. Jaswinder: He is the main victim/complainant in this case. He has deposed on the lines of prosecution story as mentioned in the charge sheet, by narrating the entire sequence of facts which led to the incident in question. He also identified accused Narender Kumar during trial to be amongst the assailants.
He testified that IO had recorded his statement Ex. PW4/A in SRHC hospital. Thereafter, he was referred to Trauma Center but due to State V/s Narender Kumar ("Convicted") Page 5 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 lot of rush in trauma center, Ambulance took him to Max hospital, Shalimar Bagh, where he remained admitted for 45 days. He also deposed that he had received four stitches over his forehead. He also identified his official uniform i.e. pant, blood stained shirt having his name plate and blood stained jacket as Ex. P1 (colly.) and also the motorcycle no. DL8SAA7961 as Ex. P3, during trial.
In his cross examination, he deposed to have told the concerned doctor of SRHC hospital that one motorcycle rider had caused injuries to him. At the time of incident, Ct. Rajesh was standing 1015 paces ahead of him on the same side i.e Nahari Village, where he was standing. He denied the suggestion that there was darkness at the time of occurrence. He deposed that accused was not wearing helmet at the time of incident and accused was previously known to him as he was one of the residents of Beat No. 6 of PS Narela as he was Beat Constable of said beat. He did not file any MACT claim petition against registered owner /driver of the motorcycle. He also did not claim reimbursement of medical expenses incurred by him on his medical treatment, from his department. He could not state as to whether the motorcycle (Ex. P3) was not belonging to accused Narender. He denied the relevant suggestions put to him on behalf of accused.
12. PW5 Ct. Mukesh and PW10 SI Surender: As per the case of prosecution, both these witnesses went to the place of occurrence on being informed about the contents of DD no. 24B on 13.08.2013. Both of them deposed on the lines of prosecution story and duly corroborated each State V/s Narender Kumar ("Convicted") Page 6 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 other during chief examination.
PW10 deposed that he had prepared rukka Ex. PW10/A and got the FIR registered through PW5. He further deposed that in SRHC hospital, Ct. Sonu Kumar had produced two pullandas sealed with the seal of SRHC hospital and one sample seal, before him and he seized the same vide memo Ex. PW6/A. He had also recorded statement Ex. PW9/A of PW Ct. Rajesh at the spot and had also got the FIR no. 535/13 U/s 33/38 of Delhi Excise Act registered through Ct. Mukesh. He had also prepared rough site plan Ex. PW10/C at the instance of Ct. Rajesh and had seized the motorcycle no. DL8SAA7961, vide memo Ex. PW10/D. Both the witnesses also deposed that accused Narender was arrested vide memo Ex. PW5/B and his personal search was also conducted vide memo Ex. PW5/C. They also identified accused Narender as well as motorcycle no. DL8SAA7961 (Ex.P3) from its photographs Ex. P2 (colly.) during trial.
In their respective cross examination, they deposed that they had reached SRHC hospital at about 6.50 am and remained there for about one hour or so. Accused was not known to them prior to the date of occurrence. Ct. Rajesh had not accompanied Ct. Jaswinder to the hospital. They denied the suggestion that it was darkness at the time of occurrence. Some relative of accused Narender was found to be registered owner of motorcycle Ex. P3. They denied the suggestion that accused was falsely implicated in this case by calling him to PS from his house in order to work out the case or that it was a case of simple accident and since official of State V/s Narender Kumar ("Convicted") Page 7 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 Delhi Police was injured, they invoked heinous sections in this case.
13. PW6 Ct. Sonu: This witness was working as Duty Constable at SRHC hospital from 8.00 pm of 12.08.13 to 8.00 am of 13.08.13. The doctor of said hospital had handed over two sealed pullandas alongwith one sample seal of same specimen to him. Out of said two sealed pullandas, one pullanda was containing official uniform of Ct. Jaswinder and other pullandas was containing blood sample of Ct. Jaswinder. He proved the seizure memo of said pullandas as Ex. PW6/A. During cross examination, he deposed that sealed pullandas and sample seal were handed over to him by concerned doctor at about 7.00 am on 13.08.2013. IO alongwith one constable whose name he could not disclose, had reached the hospital just 510 minutes prior to the handing over of said pullandas to him. He denied the suggestion that he had signed seizure memo Ex. PW6/A in the PS at the instance of IO and no such sealed pullandas and sample seal were handed over to him by concerned doctor of SRHC hospital.
14. PW7 Ct. Ram Dhan: He was working as DD Writer in PS Narela on 13.08.2013. He deposed that on 13.08.13 at about 4.25 am, police officials including Ct. Jaswinder had left PS Narela for different places and he had recorded their departure entry vide DD no. 18B. He deposed that Ct. Jaswinder and Ct. Rajesh had left for picket duty at Lampur Border vide DD no. 18B and proved attested copy thereof as Ex. PW7/A. He further deposed that on 13.08.2013 at 6.25 am, he had State V/s Narender Kumar ("Convicted") Page 8 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 received information through telephone from wireless operator that one motorcyclist had hit beat constable on duty at Lampur Border Sewa Sadan and he was being taken to hospital. Accordingly, he had recorded said information vide DD no. 24B and had telephonically informed contents thereof to ASI Surender Singh for appropriate action. He proved attested copy of said DD entry as Ex. PW7/B. In his cross examination, he deposed that concerned SHO was present in PS at the time of receipt of information from Control Room and SHO concerned was told about the said information. He had no knowledge about the exact position of ASI Surender Singh when he was telephonically informed about the contents of DD no. 24B. He denied the suggestion that DD entries no. 18B and 24B were subsequently manipulated at the instance of IO.
15. PW8 HC Jagbir Singh: This witness was working as Duty Officer at PS Narela on 13.08.2013. He proved factum of recording of FIR in question on the basis of rukka sent by ASI Surender, on 13.08.2013 at 8.25 am. He proved computerized copy of FIR as Ex.PW8/A and his endorsement on the rukka as Ex.PW8/B. He denied the relevant suggestions put to him on behalf of accused.
16. PW9 Ct. Rajesh : As per the case of prosecution, this witness alongwith complainant namely Ct. Jaswinder were on picket duty at Lampur Border on 13.08.2013 at about 6.10 am when the incident took place. He also deposed on identical lines as stated by PW4 Ct. Jaswinder during chief examination.
State V/s Narender Kumar ("Convicted") Page 9 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 He also deposed that IO ASI Surender Singh had recorded his statement Ex. PW9/A and got registered the FIR no. 535/13 U/s 33/38 of Delhi Excise Act at PS Narela regarding recovery of illicit liquor from the accused. He also exhibited copy of said FIR as Ex. PW9/B. He also deposed that IO had arrested accused Narender in his presence, vide memo Ex. PW5/B. He identified official uniform i.e. pant, blood stained shirt having name plate and blood stained jacket Ex. P1 (colly.) of Ct. Jaswinder and also the motorcycle no. DL8SAA7961 as Ex. P3 during trial.
In his cross examination, he deposed that he had not accompanied Ct. Jaswinder to the hospital. He was standing 1015 days ahead of Ct. Jaswinder at the time of incident. He denied the suggestion that it was darkness at the time of occurrence. Accused was not wearing helmet at the time of incident. He was not knowing the accused prior to the incident. He did not know as to who was the registered owner of the motorcycle (Ex. P3). He denied the relevant suggestions put to him on behalf of accused.
ARGUMENTS ADVANCED & CASE LAW CITED
17. While opening the arguments, Ld APP argued that prosecution has been able to establish the charges levelled against the accused beyond reasonable doubt. While so arguing, Ld APP referred to the testimonies of prosecution witnesses examined during trial, more particularly, the testimonies of PW4 Ct. Jaswinder, PW9 Ct. Rajesh, PW5 Ct. Mukesh and PW10 SI Surender.
State V/s Narender Kumar ("Convicted") Page 10 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016
18. Ld. APP further submitted that the accused has been duly identified by both the relevant police witnesses i.e. PW4 and PW9 during trial. He further argued that the motorcycle make Pulsar of black colour having registration no. DL8SAA7961 used by accused during commission of offence, has also been seized in this case. He also submitted that blood stained official uniform i.e. shirt and jacket of complainant/victim i.e. PW4 Ct. Jaswinder, have also been produced and identified by the witnesses as Ex. P1 (colly) during trial and therefore, accused is liable to be convicted.
19. On the other hand, it has been argued by Ld defence counsel that the prosecution has failed to prove its case beyond shadow of doubt. He argued that prosecution story is full of lies and there are several material contradictions appearing in the testimonies of prosecution witnesses, which create reasonable doubt in favour of the accused.
20. Firstly, I shall deal with the offences punishable U/s 186/353/34 IPC charged against the accused herein. It is needless to mention that in order to bring home the guilt in respect of offence punishable U/s 186/34 IPC, the prosecution was required to prove the following ingredients:
a). That the complainant and/or any other aggrieved person was / were public servants within the meaning of Section 21 IPC.
b). Said public servants were performing their official duty at the time of incident; and
c). Those public servants were obstructed or prevented from discharging their public functions by the accused persons.
21. In addition thereto, there is also a requirement under the law that complaint in writing of concerned public servant or of some other State V/s Narender Kumar ("Convicted") Page 11 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 public servant to whom the complainant/victim is administratively subordinate, shall also be filed before the Court in respect of offence U/s 186 IPC as stipulated by Section 195(1)(a)(i) Cr.P.C. without which no cognizance can be taken by the Court.
22. In the case in hand, it has been proved beyond doubt that PW4 Ct. Jaswinder and PW9 Ct. Rajesh were public servants within the meaning of Section 21 IPC and they were performing their official duty at the time of occurrence. PW7 Ct. Dhani Ram has produced roznamcha containing DD no. 18 ( Ex. PW7/A) showing that both the said police officials had left for their picket duty on 13.08.2013 at 4.25 AM at the said place. Further, the prosecution has also proved the complaint U/s 195 Cr.PC as Ex. PW2/A filed by PW2 namely Sh. Ganshyam Bansal who was posted as ACP of Sub Division Alipur during the relevant period. PW2 categorically testified that he had prepared the said complaint for prosecuting accused herein for the offence punishable U/s 186 IPC and nothing material could be elicited during cross examination of said witness so as to disbelieve his testimony available on record.
23. As regards the offences punishable U/s 332/353/34 IPC, the prosecution need to establish that accused alongwith his associate namely Bhanwar Singh (JCL) had voluntarily caused hurt to the public servant in discharge of official duty and had also intentionally assaulted or used criminal force against said public servant.
24. For the said purpose, again the testimonies of PW4 Ct. Jaswinder and PW9 Ct. Rajesh are material. Both the said witnesses have State V/s Narender Kumar ("Convicted") Page 12 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 categorically deposed during their testimonies that on 13.08.2013 at about 6.10 am, while they were on picket duty on account of Independence Day Rehearsal and were checking the vehicles coming from the side of Village Nahari, Haryana, accused Narender alongwith his associate who were coming on motorcycle no. DL8SAA7961 from the side of Nahari Village, Haryana, were given signal to stop their motorcycle but instead of stopping the motorcycle, this accused uttered the words ' Side Mein Hat Ja Nahi Toh Motorcycle Upar Chadha Doonga'. When PW9 tried to stop their motorcycle, accused intentionally tried to struck the motorcycle against PW9 who somehow managed to save himself by jumping on the other side. When PW4 tried to stop the motorcycle, the accused struck the motorcycle against him, due to which PW4 fell down and sustained injuries on his forehead. They also deposed that when PW4 tried to apprehend accused herein, he gave fist blows to him and managed to run away from the spot leaving behind the aforesaid motorcycle.
25. PW4 also deposed that he had received four stitches on his forehead and he remained admitted in the hospital for about 45 days. He also deposed that his statement (Ex. PW4/A) was recorded by IO in SRHC hospital, Narela. He has also identified his official uniform i.e. blood stained shirt bearing his name plate, pant and blood stained jacket as Ex. P1 (colly.), the photographs of aforesaid motorcycle as Ex. P2 (colly.) and the motorcycle produced during trial as Ex. P3. Despite the fact that both the aforesaid witnesses were cross examined at length by Ld. defence counsel, nothing contradictory could come on record during their cross examination State V/s Narender Kumar ("Convicted") Page 13 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 and both the witnesses have successfully withstood the test of cross examination.
26. Thus, it is quite evident from the aforesaid discussion that prosecution has been able to establish beyond pales of reasonable doubt that accused herein in furtherance of his common intention with Bhanwar Singh (JCL) had voluntarily caused hurt to PW4 Ct. Jaswinder in order to prevent him from discharging his official duty. Not only this, it has also been proved beyond shadow of doubt that they had used criminal force against PW4 Ct. Jaswinder while he was performing his duty in order to deter him from discharging the said duty. No doubt, mere use of force is not enough to bring an act within the mischief of Section 353 IPC as argued by defence but in the present case, there is sufficient evidence on record showing that accused Narender Kumar who was driving motorcycle no. DL8SAA7961, had intentionally used force against PW4. Not only this, he is also found to have given fist blows to the said witness in order to escape from the spot and ultimately, he managed to flee away from the spot in the said manner. The testimony of PW4 which is duly corroborated by the testimony of PW9, clearly proves that accused had assaulted PW4 and had also used criminal force against him while PW4 was discharging his official as public servant, in order to deter him from discharging his duty at the given date, time and place of occurrence.
27. The ocular evidence in the form of testimonies of PW4 Ct. Jaswinder and PW9 Ct. Rajesh, is duly corroborated by medical evidence in the form of testimony of PW3 Dr. Rajesh Kumar and MLC Ex. PW3/A State V/s Narender Kumar ("Convicted") Page 14 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 of PW4 proved during trial. PW3 has deposed during trial that during examination of Ct. Jaswinder (PW4), he had found five injuries of the nature as mentioned in the MLC Ex. PW3/A. Thereafter, PW4 was referred to S.R (Surgery), Ortho and Eye Specialist for expert opinion. On the basis of treatment received by said patient in Max Hospital, he gave his opinion regarding the nature of injuries as 'grievous' on the basis of fact that Ct. Jaswinder was found to have suffered fracture in his skull.
28. Although, Ld. defence counsel argued that injuries of the nature as sustained by PW4 Ct. Jaswinder, could be possible in road traffic accident and thus, the testimony of PW4 should not be taken as gospel truth but there is no substance in the said argument for the reason that there is no reason as to why PW4 would depose falsely against the accused and would allow his actual culprit to go scot free.
29. The law on the point of testimony of stamped witness is now well settled. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
30. In the judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, State V/s Narender Kumar ("Convicted") Page 15 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
xxxxxxx"
31. Moreover, I have already mentioned above that there is nothing on record to suggest untrustworthiness of the police witnesses. Although the accused in his statement has claimed that he is innocent and he has been falsely implicated but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would do this. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out the testimonies of the State V/s Narender Kumar ("Convicted") Page 16 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 witnesses.
32. The evidence available on record speaks sufficiently about the circumstances and the manner in which offence is shown to have been committed by the accused alongwith his associate. It is duly established from the testimonies of relevant witnesses i.e. PW4 & PW9 that the accused and his associate had participated during commission of offence. Thus, there is no iota of doubt that the present accused and his associate were sharing common intention to commit the offences within the meaning of Section 34 IPC.
33. In the light of aforesaid discussion, Court is of the view that the prosecution has been successful in establishing the guilt of accused Narender Kumar for the offences punishable U/s 186/333/353 read with Section 34 IPC.
34. This brings me down to the offence punishable U/s 307/34 IPC charged against the accused. Before dealing with the rival submissions made on behalf of both the sides, it would be relevant to note the essential ingredients required to be proved in case of offence punishable U/s 307 IPC. Same can be summed up as under: (1) That the death of a human being was attempted;
(2) That such death was attempted to be caused by, or in consequence of, the act of the accused;
(3) 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 such death by doing an act known to him to be so State V/s Narender Kumar ("Convicted") Page 17 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
35. In order to attract application of Section 307, it was necessary to establish that if the victim would have met his death, the offence would have been one under Section 302. An attempt to commit a crime is an act done with intention to commit that crime, and would constitute its actual commission, if not interrupted. To justify a conviction under this section, it was not essential that bodily injury capable of causing death should have been inflicted. Although, the nature of injury actually caused may often given considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to the actual injury sustained.
It is sufficient if the act was one capable of causing death and there was an intention to cause death. A person commits an offence under Section 307 when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the act whether that act was the penultimate act thereof.
36. Now adverting back to the facts of the present case. The prosecution has alleged that accused alongwith Bhanwar Singh (JCL) since rammed motorcycle against Ct. Jaswinder (PW4) and caused grievous injuries to him with intention to cause his death or having requisite State V/s Narender Kumar ("Convicted") Page 18 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 knowledge that death of PW4 shall be caused due to said act, accused is liable to be convicted for the offence punishable U/s 307 read with Section 34 IPC. For the said purpose, Ld. Additional PP vehemently relied upon the police statement ( Ex. PW4/A) of complainant Ct. Jaswinder (PW4), wherein he has claimed that accused had hit the motorcycle against him with intention to kill him. However, in his testimony recorded during trial, PW4 nowhere deposed that accused had hit the motorcycle against him with intention to kill him or even to cause his death. Rather, the facts and circumstances in which the accident is shown to have taken place, would speak otherwise. The prosecution story would show that PW4 and PW9 were checking vehicles coming from the side of Nahari Village, Haryana and the accused who was coming on one motorcycle alongwith his associate Bhanwar Singh (JCL), refused to stop the motorcycle on being given signal by said two police officials to do so. Rather, accused exhorted that ' Side Mein Hat Ja Nahi Toh Motorcycle Upar Chadha Doonga'. Initially, accused tried to hit PW9 but he managed to save himself by jumping on the other side and subsequently, when PW4 tried to stop the motorcycle, accused hit the motorcycle against him, due to which PW4 fell down.
37. The nature of injuries as mentioned in MLC Ex. PW3/A available on record, would show that PW4 has suffered abrasions on right side of his face, on right shoulder and on right knee besides lacerated wound over right side of his forehead. Although, the nature of injuries is opined to be grievous on account of some head injury but the relevant State V/s Narender Kumar ("Convicted") Page 19 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 records including the xray report showing that PW4 had actually suffered fracture in his skull as argued from the side of prosecution, has neither been produced before Court nor proved during trial.
38. Be that as it may, even if it be presumed for the sake of arguments that PW4 had sustained fracture on his skull on account of hitting of motorcycle by accused against him, still, the case would not fall within the mischief of Section 307 IPC as there is no finding/opinion of concerned doctor that fracture of skull would have been sufficient to cause the death of PW4. Rather, PW4 himself has stated during trial that he had suffered four stitches on his forehead and he remained admitted in the hospital for about 45 days. The vehicle with which accident is shown to have been caused, is motorcycle. Had it been the situation where vehicle used by accused would have been heavy vehicle like bus, truck, bulldozer etc., position would have been entirely different as in such a situation, one can still raise an inference that hitting such a heavy vehicle against a person, was definitely going to cause his death. However, same is not the case in the present case as accused is shown to have hit two wheeler motorcycle against PW4.
39. There is another factor which persuades this Court to arrive at the conclusion that offence punishable U/s 307 read with Section 34 IPC is not proved in this case. Even after being hit by motorcycle, PW4 claimed to have stood up and managed to apprehend accused and his associate Bhanwer Singh (JCL) with the help of PW9 Ct. Rajesh. Same shows that it was not a serious accident and the motorcycle had not hit on any of the State V/s Narender Kumar ("Convicted") Page 20 of 21 FIR No. 534/13; U/s 186/353/332/307/34 IPC; P.S. Narela DOD: 25.02.2016 vital parts of PW4 so as to incapacitate him from moving or acting in any manner. For all these reasons, I am of the opinion that prosecution has been unsuccessful in bringing home the guilt of accused Narender Kumar for the offence punishable U/s 307 read with Section 34 IPC. It is held accordingly.
40. In the light of aforesaid discussion, accused namely Narender Kumar S/o Sh. Kamal Kishore stands acquitted for the offence punishable U/s 307/34 IPC. However, he is convicted for the offences punishable U/s 186/333/353 read with Section 34 IPC.
Announced in open Court today
On 25.02.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Narender Kumar ("Convicted") Page 21 of 21