Delhi District Court
The State vs 1. Bhagwan Dass on 31 October, 2014
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 146/2014
UID NO . : 02404R0265772010
FIR no : 271/2010
P. S : Alipur
u/s : 186/353/333/308/379/34
IPC
The State versus 1. Bhagwan Dass
S/O Sunera
R/O H No. 705 , A Block, Metro
Vihar, Phase II, Holambi Kalan,
Delhi
2 . Raj Kumar @ Rana
S/O Jugga R/O H. NO 1137, A
Block, Phase II, Metro Vihar,
Holambi Kalan, Delhi
3. Gulfam S/O Sabir
R/O H.NO 132 Block A Metro
Vihar Phase II , Holambi Kalan
Delhi(P.O)
Date of committal to session court : 06-12-2010
Date of argument : 21-10-2014
Date of order : 30-10-2014
JUDGMENT
SC No.146/14 State vs Bhagwan Dass etc (Page 1 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC 1 The matrix of the facts, unfolded during the course of trial, which needs a necessary mention for the purpose of deciding the case and emanating from the record, as claimed by the prosecution, is that constable Dilbagh (PW7) posted at P.S Alipur was beat constable in the area of Bacoli within the jurisdiction of P.S Alipur . On 09.8.2010, at around 11:00 pm, he was in the said area and was patrolling on government motorcycle bearing no. DL-1SN-4145. When he reached near NRL, Petrol Pump on the main road, he saw four boys standing near their scooter no. DL -8SJ-9679. He made inquiry from them as to why they are standing there. As no reasonable explanation was given by them, therefore, they were asked to come to the police station with him (Constable Dilbagh). On this they gave iron rod blow on the head of Ct. Dilbagh and also exhorted that "
maro sale ko".
2 It is alleged that the scooter of those boys could not be started so they left the scooter there and ran away from the spot. In the meanwhile, Constable Sushil (PW1) along with home guard Ct Pramod was SC No.146/14 State vs Bhagwan Dass etc (Page 2 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC passing from there in a Gypsy. They saw one yellow colour motorcycle and constable Dilbagh in injured condition. Constable Sushil and constable Pramod removed constable Dilbag in the said Gypsy to SRHC Hospital. Information was given to the police which was recorded vide DD No. 29A. On receipt of DD no.29 A , S.I Dinesh(PW12) and Constable Devender(PW11) also reached at the SRHC Hospital and recorded statement of constable Dilbagh on the basis of which rukka was prepared and present FIR was got registered.
3 The aforesaid scooter no. DL -8SJ-9679 was seized from the spot. According to the prosecution, accused Bhagwan Dass is the owner of the said scooter having purchased it from one Pawan(PW2) . During investigation accused Bhagwan Dass and Raj Kumar were arrested. At the instance of accused Raj Kumar iron rod i.e weapon of offence, was recovered from the GT Road which was seized. Accused Gulfam (PO ) was also arrested. All the aforesaid accused persons were put to TIP proceedings but they refused to join the same.
4 Dr. Mazhar Hussain(PW13) is shown to have
SC No.146/14 State vs Bhagwan Dass etc (Page 3 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
examined Constable Dilbagh at SRHC Hospital on
09.8.2010 and found lacerated wound of size 5 cm X
0.5 cm over left parietal region. As per the NCCT
report of head of patient Dilbagh , it was found that there was fracture of right tempero-parietal bone with Extra-Dural hematoma.
5 Case properties were got deposited with MHC(M). The then ACP Harpal Singh filed the complaint u/s 195 CrPC making a request to prosecute the aforesaid accused persons.
6 Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 09-08-2010, the accused persons with their common intention voluntarily caused grievous hurt and deter the complainant in discharge of his official duty as such public servant. In the background of these allegations and in the wake of statement of the complainant, the present criminal case was registered against the accused persons, on accusation of having committed the offences punishable under sections 186,353, 333, 308 and 379 read with Section 34 IPC by the police of Police Station Alipur, in the manner SC No.146/14 State vs Bhagwan Dass etc (Page 4 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC depicted here-in-above.
7 After completion of the investigation, the final police report (challan) was submitted by the police against the accused persons to face trial for the offences in question.
8 Vide order dated 11.10.2010, Ld MM took the cognizance of the offences and subsequently, since the offences u/s 308/333 IPC were exclusively triable by the court of sessions, therefore, vide order dated 6.12.2010, case was committed to the court of sessions .
9 Having completed all the codal formalities, Vide order dated 18.02.2011, of ld predecessor of this court, accused persons were substantively charged for the commission of offences punishable u/s 186, 353, 333,308 and 379 read with section 34 IPC, . As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
10 In order to prove its case, prosecution has
examined as many as 18 witnesses ( inadvertently
two witnesses have been examined as PW13) which
SC No.146/14 State vs Bhagwan Dass etc (Page 5 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
are as follows:
i) PW1 Ct. Sushil Kumar :- He is the witness who was posted at
P.S Alipur during relevant time and on the day of incident he along with Homeguard Ct.Pramod were going from Alipur to Sindhu Border in a Govt Gypsy. He noticed constable Dilbagh in injured condition. He is shown to have removed constable Dilbagh to SRHC hospital. He is also witness to the seizure of scooter no. DL-8SJ-9679 which was seized vide seizure memo ExPW1/A.
ii) PW2 Pawan :- He is the witness who was running a scooter repairing shop at village Bhorgarh, Delhi. He deposed that in the month of February or march 2010, he had purchased a scooter LML No. DL-8SJ-9679 and in the month of August or September , accused Bhagwan Dass has purchased the same for Rs 6000/-(Six Thousand) against which accused had handed over the photocopy of Voter ID card which was seized by the IO vide seizure memo ExPW2/A. He further deposed that accused Bhagwan Dass did not get the scooter transferred in his name despite request. He is also witness to the arrest of the accused Bhagwan Dass. He deposed that on 12.8.2010, he along with IO reached at BY police colony, Narela in search of accused Bhagwan Dass. He had seen accused Bhagwan Dass coming from other side and upon his identification, accused Bhagwan Dass was arrested vide memo ExPW2/C. His personal search was conducted vide memo ExPW2/D. Laminated copy of voter ID was recovered from the pocket of the accused which was seized vide memo ExPW2/E. Disclosure statement of accused Bhagwan Dass was recorded vide memo ExPW2/F. Iii) PW3 Ct.Mrityunjay ,PW4 Ct Naresh, PW5 Ct. Anoop :- .
SC No.146/14 State vs Bhagwan Dass etc (Page 6 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
These witnesses are formal witnesses who assisted the IO during
investigation. All these witnesses have deposed that at the instance of accused Raj Kumar , iron rod which was used by them for committing the crime, was recovered and seized.
iv) PW6 HC Bijender Singh :- He is the duty officer who proved the registration of FIR ExPW6/A and certificate u/s 65 B of Evidence Act as ExPW6/C.
v) PW7 Ct. Dilbagh :- He is the injured and the maker of the FIR. He has deposed exactly on the lines of the case of the prosecution, as mentioned in the introductory brief facts of the case herein above.
vi) PW8 HC Devender Singh :- He is another formal witness who was with IO during the investigation.
vii) PW9 S.I Sandeep :- He is the witness who was also with the IO during investigation and in his presence accused Bhagwan Dass was arrested . He was also the member of the raiding party who apprehended accused Raj Kumar at the instance of accused Bhagwan Dass . He deposed that on 13.8.2010, he along with S.I Mukesh(PW10), S.I Rishi, Ct. Anoop(PW5), Ct. Mritunjay(PW3), Ct Naresh(PW4), HC Devender(PW8), S.I Dinesh(PW12) and accused Bhagwan Dass reached at Metro Vihar and at the instance of accused Bhagwan Dass ,accused Raj Kumar was apprehended and arrested vide arrest memo ExpW9/B and his personal search was conducted vide ExPW9/C . Accused Gulfam(PO) was also arrested at the instance of accused Bhagwan SC No.146/14 State vs Bhagwan Dass etc (Page 7 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC Dass. Disclosure statement ExPW9/F of accused Raj Kumar was recorded. Pointing out memo of accused Raj Kumar ExPW9/H was prepared. Accused Raj Kumar got recovered one iron rod from the place near the streetlight on the GT road near the place of occurrence and accused had also claimed that he had used the rod in that incident. Rod was seized by the IO vide memo ExPW9/J .
viii) PW10 S.I Mukesh Kumar: He is the witness who was member of the raiding party in whose presence accused Raj Kumar was arrested .
ix) PW11 Ct. Devender : He is the witness who was with S.I Dinesh and who took the rukka to the P.S . In his presence scooter was seized vide ExPW1/A by the IO.
x) PW12 S.I Dinesh Kumar : He is the IO of the present case. He deposed that in the intervening night of 09/10.8.2010 , on receipt of DD no. 29 A ExPW6/D , he along with Ct. Devender reached at SRHC Hospital where he found Ct. Dilbagh under treatment. He collected the MLC of the injured and recorded his statement ExPW12/A. He made his endorsement ExPW12/B on the complaint and got registered the FIR . From the hospital he came to the spot i.e NRL Petrol Pump, Main GTK Road along with ct. Sushil and Ct. Parmod. He prepared site plan ExPW1/DA and on inspection of the spot he found two wheeler scooter no. DL 8SJ 9679 near the place of occurrence abandoned. Scooter was seized vide memo ExPW1/A. He further deposed that on 11.8.2010, he came to know that scooter was sold to accused Bhagwan Dass by Pawan @ Kale(PW2) . Photocopy of SC No.146/14 State vs Bhagwan Dass etc (Page 8 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC Voter ID Card of Bhagwan Dass was seized vide seizure memo ExPW2/A. On 12.8.2010, accused Bhagwan Dass was apprehended at the instance of Pawan(PW2) and Bhagwan Dass was arrested vide arrest memo ExPW2/C and his personal search was conducted vide memo ExPW2/D and disclosure statement of accused Bhagwan Dass ExPW2/F was recorded. Pointing out memo of place of occurrence of accused Bhagwan Dass is ExPW9/A. At the pointing out of accused Bhagwan Dass, accused Raj Kumar was apprehended and was arrested vide arrest memo ExPW9/B and his personal search was conducted vide ExPW9/C. Disclosure statement of accused Raj Kumar ExPW9/F was recorded and pointing out memo of accused Raj Kumar ExPW 9/H was prepared . PW12 further deposed that all the accused persons refused to join TIP . Accused Raj Kumar got recovered one iron rod from the place near the streetlight on the GT Road near the place of occurrence and claimed that he had used the rod in that incident. Rod was seized vide seizure memo ExPW9/J.
xi) PW13 Ct. Lokesh : He is the DD writer who on 09.8.2010 recorded DD no. 78 B regarding departure of driver Pramod and ct Sushil in govt Vehicle.
xii) PW13 Dr. Mazhar Hussain :He, on 09.8.2010 at about 11:50 pm , examined injured Ct. Dilbagh and prepared MLC ExPW13/A and prepared report after going through the NCCT report of head of patient Ct. Dilbagh , which is at point X on ExPW13/A. Xiii) PW14 HC Jagdish Chander : He is the witness who on 10.8.2010 was posted as MHC(M) at P.S Alipur and with whom scooter SC No.146/14 State vs Bhagwan Dass etc (Page 9 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC bearing registration no. DL 8SJ 9679 was deposed by the IO and he made entry at serial no. 2585 in register no.19 which is ExPW14/A. Xiv) PW15 HC Devender Singh : He was posted as MHC(M) at P.S Alipur and with him on 5.10.2010 case properties were deposited by the IO which were entered in register no.19 vide ExPW15/A . On 1.11.2010, case property were sent through Ct. Naveen to FSL vide RC no.93/21/10 and copy of receipt of RC and acknowledgment is ExPW15/B and 15/C respectively.
xv) PW16 Dr. P.N Pandey: He on 10.8.2010 , examined patient Dilbagh and on examination found that there was multiple fracture on left tempro-parietal bone with underline extra dural hemotoma .
xvi) PW17 ACP Harpal : He was posted as ACP , Sub Division Alipur Delhi and on 10.10.2010 he had filed a complaint u/s 195 CrPC ExPW17/A making a request to prosecute the accused Raj Kumar @ Rana, Bhagwan Dass and Gulfam(PO) u/s 186/353/333/308/379/34 IPC .
11 Here it is pertinent to mention that accused Gulfam was declared P.O vide order dated 16.9.2014.
12 After the close of the prosecution evidence, the statements of the accused persons were recorded. The entire incriminating material/evidence was put to SC No.146/14 State vs Bhagwan Dass etc (Page 10 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, they have denied the prosecution evidence in its entirety and pleaded false implication. They did not opt to lead any evidence in their defence.
13 I have heard the ld Addl P.P for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
14 Accused Bhagwan Dass and Raj Kumar are facing trial for the offences u/s 186/353/333/308/379/34 IPC .
Charges u/s 186/353/333 IPC 15 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.
16 Section 333 postulates that "Whoever voluntarily
SC No.146/14 State vs Bhagwan Dass etc (Page 11 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
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 that lawful discharge of his duty as such public servant, shall be punished therein." Section 353 IPC posits that "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 public servant, shall be punished thereunder."
17 A conjoint and meaningful reading of these provisions would reveal that in order to invoke the pointed offences, it is the mandatory duty of the prosecution to produce the cogent and reliable evidence to prove that the accused persons have voluntarily caused grievous hurt to a public servant in discharge of his official duty as such public servant and used the criminal force to deter him from discharging his official SC No.146/14 State vs Bhagwan Dass etc (Page 12 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC duty.
18 Above being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination of the instant case is, as to whether the prosecution was able to prove the indicated charges against the accused persons or not ?
19 In the present case (PW7) constable Dilbagh is the maker of the present case whose entire testimony is relevant and material one, which reads as under:
" On 09.8.2010 I was posted at P.S Alipur. I was beat constable in the area of patrolling duty at Bacoli on the High within the jurisdiction of P.S Alipur. At 11:00 am I was going to my area of patrolling on my government vehicle DL-1-SN-4145 for patrolling purpose. When I reached near NRL Petrol Pump on the main road I saw that four boys were standing near their scooter no. DL8S9679 of green colour and make is LML. I asked them about the reason of standing there and why they were standing. They had not revealed anything and I asked them to come to the PS with me. On this they have given a iron rod blow on my head and also exhorted 'maro-sale ko' they had pushed my motorcycle and laid down on the road. They also pushed their scooter for some distance as it was not started and thereafter they left the scooter there and ran away SC No.146/14 State vs Bhagwan Dass etc (Page 13 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC from the spot. In the meantime a government Gypsy which arrived at the spot, one Ct. Sushil along with home guard ct. was also in the Gypsy. They removed me to the hospital in Gypsy in Harish Chandra Hospital, Narela. From the Harish Chandra Hospital I was referred to L&JP Hospital. I remained there for about three days. I was carrying two mobiles and one I card which were also taken out by the assailants along with cash. I can identify the assailants if shown to me. Out of four three accused persons are present in the court today,(one accused Roshan had expired during trial) witness pointed out towards accused Raj Kumar and stated that he is the person who had given me iron rod blow on my head and he also exhorted maro -sale ko . Witness pointed out accused Bhagwan Dass and Gulfam that after exhortation both the accused grappled me.
At this stage a rod sealed with the seal of FSL IKM Delhi is opened and rod shown to the witness, who identify the same, which is ExP2. I can also identify the scooter of the accused if shown to me. MHC(M) has not brought the scooter and ld APP requested to defer the examination in chief. Request disallowed as the scooter is already ExP1 during examination of PW1.
I can identify the shirt if shown to me. At this stage parcel no.1 is produced sealed with the seal of FSL IKM Delhi. Seal is opened which containing a shirt of uniform of police (Khaki Colour) having blood stains, same is shown to the witness, who identify the same. Same is ExP3...."
SC No.146/14 State vs Bhagwan Dass etc (Page 14 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC 20 PW7 constable Dilbagh is talking about that he was removed to the hospital by constable Sushil (PW1) along with HG constable who were passing from there in a government Gypsy which finds corroboration from the testimony of PW1 Ct. Sushil Kumar. PW1 Sushil Kumar deposed that on 09.8.2010, he was on duty as driver on Gypsy in P.S Alipur. At about 11:15 pm, in the night, he was going from Alipur to Sindhu Border. When he reached near Bakoli village road on the other side which was coming towards Delhi, he had seen one yellow colour govt motorcycle lying on the road and he reached there. He had seen Ct. Dilbagh(PW7) of P.S Alipur in injured conditions lying near the motorcycle. Ct. Pramod DHG was also with him in govt Gypsy. He along with DHG Pramod removed Ct. Dilbagh in govt gypsy in SRHC Hospital .
21 PW1 Ct. Sushil and PW7 Ct. Dilbagh were cross examined by the ld counsel for the accused persons but even during their cross examination, ld counsel for the accused could not impeach their testimonies and there is no material contradiction. Rather during cross examination , testimony of PW7 Ct. Dilbagh on material points has gone unchallenged and un-rebutted. PW7 SC No.146/14 State vs Bhagwan Dass etc (Page 15 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC replied that he regained senses in Harish Chander Hospital and he has seen the accused persons running. He further replied that his statement was recorded in the SRHC Hospital on the same night.
22 PW7 has testified that accused persons ran away leaving their scooter at a little distance from the spot which also finds corroboration that scooter has been seized from the spot vide seizure memo ExPW1/A. Further, PW2 Pawan deposed that accused Bhagwan Dass had purchased the scooter but he did not get transferred the scooter in his name. During the statement recorded u/s 313 CrPC , accused Bhagwan Dass replied that in the intervening night of 8-9.8.2010 at about 1:15 am his scooter was stolen by someone. In this regard, nothing has been brought on record by accused Bhagwan Dass that scooter was stolen or lost. He has not disputed that he is the owner of the said scooter which was seized from the spot.
23 Now adverting to the medical evidence, PW13 Dr. Mazhar Hussain deposed that on 09.8.2010, one injured Dilbagh was brought to the hospital with the alleged history of physical assault and two episodes of SC No.146/14 State vs Bhagwan Dass etc (Page 16 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC vomiting. He medically examined the patient and found lacerated wound of size 5 cm X.5 cm over left parietal region. Anti-septic dressing with stitching were performed and the patient was referred for surgery deptt for further examination and he is shown to have prepared the MLC ExPW13/A. The incident has taken place at around 11:00 pm and as per the MLC ExPW13/A he was removed to the hospital at 11:50 pm and he was examined by the doctor which supports the story of the prosecution. Further, as per the NCCT of head of constable Dilbagh ExPAdv8 , admitted vide statement dated 26.9.2013, there was fracture of right tempero-parietal bone with Extra-Dural hematoma on the person of Ct. Dilbagh Singh. As per the subsequent opinion Ex Padv 9( admitted vide statement dated 10.1.2014) given by Dr. Mazhar Hussain (PW13), aforesaid injury on the person of Ct. Dilbagh Singh by iron rod cannot be ruled out. Accused persons have not disputed the medical evidence as testimony of PW13 has gone un-rebutted and unchallenged.
24 PW17 ACP Harpal has proved the complaint u/s 195 CrPC ExPW17/A . PW17 has also not been cross examined by the persons and in these circumstances, complaint ExPW17/A u/s 195 CrPC given by him stands SC No.146/14 State vs Bhagwan Dass etc (Page 17 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC 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 .
25 Further, PW12 S.I Dinesh, who is the IO deposed that he along with constable Devender on receipt of DD no. 29 A ExPW6/D reached at SRHC Hospital where he found ct. Dilbagh under treatment. ct. Sushil and DHG Ct. Parmod were also present in the hospital . He recorded the statement of Ct. Dilbagh ExPW12/A . Ct. Dilbagh was posted in P.S Alipur and was on patrolling duty at the time of incident. He made endorsement ExPW12/B beneath the statement of complainant ExPW12/A and got registered the FIR through Ct. Devender. Although, PW12 was cross examined by the ld counsel for the accused persons but there is no cross examination on this point. Not even a suggestion was put to the effect that at the time of incident ct. Dilbagh was not on patrolling duty .
26 Scientific evidence also supports and corroborates the case of the prosecution that injuries were caused by SC No.146/14 State vs Bhagwan Dass etc (Page 18 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC iron rod. The said iron rod ExP2 was recovered at the instance of accused Raj Kumar and was identified by injured Ct. Dilbagh Singh. As per the FSL report ExP-2 , the blood was detected on said iron rod and it was human blood. This circumstance also goes against the accused persons.
27 From the testimonies of aforesaid witnesses, it stands proved that :
a) On 09.8.2010 at about 11:00 pm constable Dilbagh Singh (PW7) was in the area of Bacoli and was patrolling on his government motorcycle bearing no. DL-1SN-4145 and as such was a public servant on duty.
b) 3-4 persons were noticed in the suspicious condition including accused Bhagwan Dass and Raj Kumar near scooter no. DL-8SJ-9679. They were asked to come to police station.
c) Accused Raj Kumar gave iron rod blow on the head of constable Dilbagh and exhorted 'maro sale ko' . Accused Bhagwan Dass while acting in furtherance of their common intention grappled with constable Dilbag Singh. Thereafter they ran away leaving their scooter at the spot.
d) The rod ExP 2 was recovered at the instance of the accused Raj Kumar which was used by him for committing the offence .
e) The scooter bearing no. DL-8SJ-9679 was seized from the spot vide seizure memo ExPW1/A and the said scooter belonged to the accused Bhagwan Das.
SC No.146/14 State vs Bhagwan Dass etc (Page 19 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC
f) As per medical evidence Adv 8, NCCT head of constable Dilbagh there was fracture of right tempero- parietal bone with Extra-Dural hematoma and as per the opinion ExPAdv 9 of Dr. Majhar Hussain, there is a possibility that aforesaid injury could have been caused by said iron rod.
g) Constable Dilbagh sustained grievous injuries being a public servant in discharge of his duty as a public servant .
28 Having regard to the rival contentions of learned counsel for the accused persons and Ld Addl PP for the state, to me, the answer must obviously be in the affirmative as the prosecution has proved that accused persons have voluntarily caused grievous injuries to the complainant Ct Dilbagh(PW7) while he was on his official duty as public servant.
29 The chain of link evidence is complete by the statements of prosecution witnesses. The evidence of PWs is cogent and reliable. They were cross-examined but no substantial material could be elicited in their notional cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to the complainant injured/eye witness(Ct Dilbagh) as to why he would falsely depose and implicate accused persons in this case. PWs gave a vivid, SC No.146/14 State vs Bhagwan Dass etc (Page 20 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC consistent and cogent version of the occurrence and supported the prosecution story on all vital counts. The mere routine denial by accused persons that they were falsely implicated by the complainant, out rightly deserves to be rejected in the absence of any cogent material on record in this relevant connection. Therefore, it is held that it stands proved on the record that accused persons namely Raj Kumar and Bhagwan Dass obstructed the public servant namely Ct. Dilbagh Singh while he was discharging his public functions and had also assaulted him and voluntarily caused grievous hurt on the person of ct. Dilbagh Singh with iron rod. It has come on the record that accused Bhagwan Dass grappled with constable Dilbagh Singh and Raj Kumar gave iron rod blow on his head . The acts of both the accused persons cumulatively resulted in the commission of offence in furtherance of their common intention and both of them shared a common intention to commit the offence . Accordingly, prosecution has been able to prove the offences u/s 186/353/333/34 IPC against both the accused persons.
CHARGES U/S 308 IPC.
30 Accused persons have been charged for the offence u /s 308 IPC also, which provides punishment upto seven SC No.146/14 State vs Bhagwan Dass etc (Page 21 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC years or with fine or with both. As indicated herein above prosecution has been able to prove the offence u/s 333 IPC also . Section 333 provides punishment upto 10 years . I am of the opinion that both the aforesaid provisions of law i.e section 308 IPC and 333 IPC cannot go together. That being so. Accused persons need not be convicted for the offence u/s 308 IPC separately . CHARGES U/S 379 IPC 31 Accused persons have been charged for the offence u/s 379 IPC also on the allegations that on the date of incident noted herein above, they committed theft of two mobile phones belonging to Ct. Dilbagh Singh. PW7 Ct. Dilbagh Singh deposed that he was carrying two mobiles which were also taken out by the assailants alongwith cash. This is the only evidence qua the offence u/s 379 IPC which in my opinion is not sufficient to convict the accused persons for that offence. Allegations appears to be general , vague and uncertain. It has not been explained as to actually who committed the theft of said mobile phones ? What was the make of those mobile phones ? What happened to the mobile phones ? Although a specific role has been assigned to both the accused persons regarding the injuries sustained by ct.
SC No.146/14 State vs Bhagwan Dass etc (Page 22 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
Dilbagh Singh but regarding the theft of mobile phones evidence is lacking. Accordingly, prosecution has failed to establish the offence u/s 379 IPC against both the accused persons.
32 In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused Raj Kumar and Bhagwan Dass in respect of offences u/s 186/353/333/34 IPC but failed to prove its case against the accused persons u/s 379 IPC. Consequently, accused namely Raj Kumar and Bhagwan Dass stands acquitted for offence u/s 379 IPC but stands convicted for the offences u/s 186/353/333/34 IPC .
Announced in the open (Rajesh Kumar Goel)
Court today i.e 30.10.2014 ASJ-5, North
Rohini Court
SC No.146/14 State vs Bhagwan Dass etc (Page 23 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 146/2014
UID NO . : 02404R0265772010
FIR no :271/2010
P. S : Alipur
u/s 186/353/333/34 IPC
The State versus 1. Bhagwan Dass
S/O Sunera
R/O H No. 705 , A Block, Metro
Vihar, Phase II, Holambi Kalan,
Delhi
2 . Raj Kumar @ Rana
S/O Jugga R/O H. NO 1137, A
Block, Phase II, Metro Vihar,
Holambi Kalan, Delhi
ORDER ON SENTENCE
31.10.2014
Present: Sh Ashok Kumar , ld Addl PP or
the state.
Convict Bhagwan Dass and Rajkumar
produced from JC.
Ms Geeta Singh Chauhan , ld Amicus Curiae for accused persons.
SC No.146/14 State vs Bhagwan Dass etc (Page 24 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
I have heard both the sides on the quantum of sentence. I have also perused the record.
Ld Amicus Curiae for the convict Bhagwan Dass submits that convict Bhagwan Dass is the only bread earner in the family and has the responsibility to maintain his family . It was pointed out that convict Bhagwan Dass is in JC for the last about 3 ½
-4 years and prayed to take a lenient view against him.
In respect of convict Raj Kumar , ld Amicus Curiae submitted that convict is aged about 40 years and has family consisting of two unmarried sisters and old age parents to maintain. She further submitted that convict Raj Kumar is also the only bread earner of the family and is in JC for last near about 4 years.
On the other hand, ld Additional P.P for state argued that convict persons are not entitled for any leniency as they obstructed and assaulted a public servant while discharging his public duty and caused grievous injury on his person by giving iron rod blow on the head of the victim. He further submitted that the act of convict persons are quite grave and prayed that maximum sentence may be awarded to them .
In a case State of M.P Vs Najab Khan & Ors. , 2014 II AD (S.C) 194, It was held that " In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for SC No.146/14 State vs Bhagwan Dass etc (Page 25 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC commission of the crime , the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment" .
In the present case , convict persons have been convicted for the offences u/s 186/353/333/34 IPC .
After considering the entire facts and circumstances of the present case and the discussion made herein above , the convict persons namely Bhagwan Dass and Raj Kumar are sentenced as follows:
1. u/s 186 /34 IPC : R.I for two months along with fine of Rs 200/- each in default of payment of fine 2 days S.I .
2. u/s 353/34 IPC : R.I for one year along with fine of Rs 500/- each in default of payment of fine 5 days S.I .
3. u/s 333/34 IPC : R.I for five years along with fine of Rs 1000/- each in default of payment of fine 10 days S.I. SC No.146/14 State vs Bhagwan Dass etc (Page 26 of 28 ) D.O.D 30.10.2014 FIR No. 271/2010 P.S Alipur u/s 186/353/333/308/379/34IPC Fine not paid by convict Bhagwan Dass and Rajkumar.
All the sentences shall run concurrently. At this stage, both the convict pointed out that they are already serving sentence of imprisonment in case bearing FIR no. 27/2011 , P.S Ashok Vihar and made a request to order that sentences awarded in the present case may be run concurrently with that case .
In view of the submission made and in the interest of justice, it is directed that the sentences awarded by this court in the present case shall run concurrently with aforesaid previous sentences of convict persons, if any.
Benefit of section 428 CrPC shall be given to both the convicts persons for the period already undergone by them during the trial, as per rules.
Both the convict persons have been informed that they have a right to prefer an appeal against this judgment . They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37,Lawyers Chamber Block, High Court of Delhi, New Delhi.
SC No.146/14 State vs Bhagwan Dass etc (Page 27 of 28 )
D.O.D 30.10.2014 FIR No. 271/2010
P.S Alipur
u/s 186/353/333/308/379/34IPC
Copy of the judgment and order on sentence be given to the convict persons free of cost.
File be consigned to record room after necessary compliance with a liberty to the prosecution to get revived it as and when accused Gulfam (PO) is traceable. File not to be destroyed .
( Rajesh Kumar Goel) ASJ-5, North / 31.10.2014 SC No.146/14 State vs Bhagwan Dass etc (Page 28 of 28 )