Delhi District Court
Prosecution vs Jabbar S/O Sh. Abdul Rehman on 25 April, 2018
1
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE+1/ SPECIAL JUDGE
(POCSO), SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
CNR No. : DLSH01-000114-2011
Sessions Case No : 526/2016
FIR No. : 86/2011
Under Section : 452/323/506/307 IPC
Police Station : Gandhi Nagar
In the matter of :
State
.......... Prosecution
VERSUS
1. Jabbar S/o Sh. Abdul Rehman
R/o: 17, Ansari Road, Daryaganj
Delhi.
2. Jogender s/o Sh. Chander
R/o : H. No.418, Gali No.4, Village Meethapur
Delhi.
3. Jagga s/o Sh. Gurnaam Dass
R/o : H. No.418, Gali No.4, Village Meethapur
Delhi.
.......... Accused
Date of Institution : 28-10-2013
Date of reserving judgment : 25-04-2018
Date of pronouncement : 25-04-2018
JUDGMENT
1) Accused persons namely Jabbar, Jogender and Jagga were sent FIR No.:86/2011, PS: Gandhi Nagar Page 1 of 43 2 up for trial by the police of PS Gandhi Nagar for the offences punishable under Section 323/451/307/506/34 of Indian Penal Code, 1860 (herein after referred to as "IPC" in short) and under S. 27 of Arms Act, 1959 (hereinafter referred to as "A. Act" in short) on the allegations that on 28.03.2011, DD No.29B was marked to HC Kunwar Pal. In the meantime, injured came to police station and they were sent to hospital in the company of Ct. Sunil Kumar. Ct. Sunil Kumar handed over the MLC of the injured namely Parvesh Kumar, Jarnail Singh and Kamal Kotia and they were declared 'fit to make statement' by doctor concerned and regarding nature of injury in respect of above mentioned accused, doctor concerned opined 'under observation blunt', 'simple blunt' and 'under observation blunt' respectively. It is also revealed that injured has gone to another hospital and by way of telephone it is revealed that injured had gone to Ramlal Kundan Hospital, Pandav Nagar, Parparganj, Delhi. Accordingly IO and Ct. Sunil reached at Ramlal Hospital where injured Jarnail Singh met and got his statement recorded.
2) He stated that today at about 11:00 a.m. he, his elder brother Parvesh Kumar, younger brother Kamal, Jagdish Prasad and Anil Verma were present in office IX/1045, Patel Gali No.2, Gandhi Nagar, Delhi. Four persons entered, out of them, one was Jabbar, who was known to them previously and they surrounded them on the point of revolver (gun) and told "Parvesh, you were earlier told that you got removed Kashmiri FIR No.:86/2011, PS: Gandhi Nagar Page 2 of 43 3 Lal from the post of Trustee, Secretary and you also did not recognize Ishwar Singh and Jaipal Singh as Trustee and today they would leave after finishing you and your brothers. (Parvesh tujhe hamne pahle bhi kaha tha ki tune Kashmiri Lal ko Trustee Secretary pad se hatwaya tha aur tum Ishwar Singh and Jaipal Singh ko bhi Trustee nahi mante ho. Aaj tujhe aur tere bhaiyo ko jaan se khatan kar ke jayenge). Thereafter, they held Parvesh and dragged him outside and started beatings him with iron rod badly. In the meantime, public persons / neighbours collected on hearing noise and accused persons fled away by showing revolver while threatening that they would come again and teach them lesson and would kill them. He and his brothers sustained injuries and he made call to police over 100 number. He with the help of neighbour made his brothers sit in the car and took them to police station from where they were sent to SDN Hospital for medical examination from where his brother Parvesh was referred to higher centre for management and he has taken his brother to Kundan Lal Orthopedics Hospital where he is under treatment/ operation. He requested that legal action be taken against accused persons. SHO was apprised of the incident.
3) On the basis of statement and MLCs, FIR was registered for offences punishable u/s 452/323/506/34 IPC and under S. 27/54/59 Arms Act. IO seized the pant of injured Parvesh through Jarnail Singh, which was bearing stamp of Kundan Lal FIR No.:86/2011, PS: Gandhi Nagar Page 3 of 43 4 Orthopedics Hospital. Statement of witnesses was recorded and efforts were made to trace accused but they could not be arrested.
4) Thereafter the investigation was marked to IO. Site plan was prepared after spot inspection. On 02.04.2011, at the instance and identification of complainant, accused Jabbar and his two brothers Jogender and Jagga were arrested and accused Jabbar was kept without muffle face and his brothers were kept in muffle face. Accused persons pointed out the spot. Weapon of offence i.e. rod and country made pistol could not be recovered despite efforts. No eye witness came forward despite search. Judicial test identification parade (TIP) of accused Jogender and Jagga was got conducted from Ld. MM in Tihar Jail wherein both accused refused to join the TIP proceedings. Police custody remand of accused Jabbar was taken but no recovery could be effected.
5) During investigation, Kashmiri Lal was given notice and enquiry was made from him. He stated that he has nothing to do with the present offence. There is one Nijdham Charitable Trust and it has constructed one dharamshala in name of Garibdas Puram, Haridwar. There is dispute regarding their functioning (hisab kitab) amongst trustees. Injured Parvesh Kumar, witness Anil Verma and Jagdish Prasad are trustee of the said trust who are supporter of former director Sh. S. K. Sabbarwal and former FIR No.:86/2011, PS: Gandhi Nagar Page 4 of 43 5 Treasurer Basant Gupta. On account of dispute, Kashmiri Lal and other trustee have got the account of the trust freezed and they (injured party) have in connivance with bank manager withdrawn Rs.25,000/- after forging documents. In this regard a case 41/11 is registered at City Kotwali, Haridwar. Accused Jabbar has nothing to do with the said trust, however, there is dispute between accused Jabbar and Parvesh Kumar regarding some money transaction. Recently, injured Parvesh Kumar, Jagdish Verma and Anil Verma have made a complaint to MCD after taking photographs of shop of accused Jabbar and due to which, the present incident might have taken place. Enquiry was also made from Ishwar Singh, who also reiterated the above facts.
6) There is one civil suit pending in between both parties. From the investigation, no evidence is found regarding involvement of Kashmiri Lal, Ishwar Singh and other trustees in the present offence. It is also stated in the charge-sheet that efforts were also made to trace co-accused Nand Kishore, but he could not be traced and NBWs against him were also obtained from the court concerned and as and when he will be arrested a supplementary chargesheet will be filed.
7) Opinion regarding nature of injury was received on the MLC No.801/11 which is given as grievous and regarding MLC No. 802/11 and 803/11, it was opined as simple. Thereafter offences FIR No.:86/2011, PS: Gandhi Nagar Page 5 of 43 6 punishable u/s 307 IPC and 325 IPC were added in the FIR. After completion of the investigation, charge-sheet was filed.
8) Vide order dated 30.5.2011, Ld. MM has taken cognizance of offences. After supplying the necessary copies to the accused persons, Ld. MM has committed the case to the court of Sessions vide order dated 23.6.2011.
9) After supplying necessary copies to the accused, My Ld. Predecessor vide order dated 16.12.2011 charged the accused persons for offences punishable u/s 452/34 IPC, 307/34 IPC, 323/34 IPC and 506/34 IPC to which they pleaded not guilty and claimed trial.
10) The prosecution in support of its case, examined as many as 14 witnesses. The prosecution examined following material witnesses:-
i. PW-1 Sh. Jarnail Kotiya is complainant and injured. He proved his statement as Ex.PW-1/A, arrest memo and personal search memo of accused Jabbar as Ex.PW-1/B and Ex.PW-1/C respectively and seizure memo of blood stained pant of his brother Parvesh as Ex.PW-1/D and he also identified the same as Ex.P1.
ii. PW-2 Sh. Kamal Kotiya is also one of the injured /victims. He was cross-examined by Ld. Addl.PP for State on the point of threat extended to them by accused FIR No.:86/2011, PS: Gandhi Nagar Page 6 of 43 7 while escaping and also that site plan was prepared at his instance.
iii. PW-4 Sh. Parvesh Kumar is also one of the injured. He proved his statement as Ex.PW-4/A and identified his pant as Ex.P1.
iv. PW-11 Sh. Jagdish Prasad, 84 years old, is eye witness of incident who alongwith injured were present in office of injured. However, he stated that he could not see the faces of those persons. He was declared hostile by the prosecution.
v. PW-12 Sh. Anil Kumar, is eye witness of incident who alongwith injured were present in office of injured. However, he also could not identify any of accused persons in the court. He was declared hostile by the prosecution.
11) The prosecution also examined following formal witnesses:-
i. PW-3 Sh. J. P. Nahar, who as metropolitan magistrate at the relevant time conducted TIP proceedings in respect of accused Joginder and Jagga. He proved application Ex.PW-3/A, another application Ex.PW-3/B, TIP proceedings of Joginder and Jagga as Ex.PW-3/C and Ex.PW-3/D respectively and application for supplying copy of TIP proceeding as Ex.PW-3/E. Both accused FIR No.:86/2011, PS: Gandhi Nagar Page 7 of 43 8 have refused to join the TIP proceedings.
ii. PW-6 HC Harinder Singh is duty officer who got recorded FIR through computer operator on the basis of rukka received from Ct. Sunil Kumar sent by IO HC Kunwar Pal and he proved FIR as Ex.PW-6/A and his endorsement on rukka as Ex.PW-6/B. iii. PW-9 Dr. Shamoli Kundu, CMO, SDN Hospital is doctor who medically examined injured Parvesh and proved MLC as Ex.PW-9/A. He examined x-ray reports. He also opined the nature of injuries to be grievous.
iv. PW-10 Dr. Rajiv Gupta, Radiologist who examined x-ray plate of injured Parvesh Kumar and proved report Ex.PW-10/A and x-ray plates (7 in number) as Ex.PW-10/B (Colly.).
v. PW-13 Dr. R. Chaterjee, CMO, SDN Hospital who has examined both injured Kamal Kotia and Jarnail Kotia and proved their MLCs as Ex.PW-13/A and Ex.PW-13/B.
12) The prosecution also examined following witnesses of investigation:-
i. PW-5 HC Kunwar Pal Singh is initial investigating officer who got the FIR registered and seized pant of injured Parvesh and he proved DD No.39-B as Ex.PW-5/A, rukka as Ex.PW-5/B and site plan as FIR No.:86/2011, PS: Gandhi Nagar Page 8 of 43 9 Ex.PW-5/C. ii. PW-7 HC Dinesh is witness regarding arrest of accused persons. In additions to other memos, he proved arrest memo of accused Joginder and Jagga as Ex.PW-7/A and Ex.PW-7/B respectively, their personal search memo as Ex.PW-7/C and Ex.PW-7/D respectively and disclosure statement of all three accused as Ex.PW-7/E, Ex.PW-7/F and Ex.PW-7/G respectively. On being put leading question, he admitted and proved pointing out memo of the place of incident by accused persons vide memo Ex.PW-7/H and accused Joginder and Jagga were kept in muffled face immediately after their apprehension.
iii. PW-8 Ct. Sunil Kumar who got the medical examination of the victims/ injured got conducted as per instruction of initial IO. However, he was declared hostile partly by Ld. Addl. Public Prosecutor.
iv. PW-14 Retd. SI Mahavir Singh is investigating officer who conducted investigation after registration of FIR. In addition to other memos/ documents, he proved his application for one day police custody remand of accused Jabbar as Ex.PW-14/A, application for TIP of accused Joginder and Jabbar as Ex.PW-14/B, application for issuance of NBWs of accused Nand Kishore (P.O.) as Ex.PW-14/C, application for issuance of process u/s FIR No.:86/2011, PS: Gandhi Nagar Page 9 of 43 10 82/83 Cr.PC as Ex.PW-14/D and copy of his statement as Ex.PW-14/E.
13) After conclusion of evidence, statement of accused persons was recorded u/s 313 Cr.PC, wherein they denied the prosecution evidence and claimed to be innocent.
14) In his statement u/s 313 Cr.PC, accused Jabbar has stated that the land at 17, Ansari Road, Darya Ganj, Delhi was allotted to them by MCD. He stated that he himself appeared before the concerned police official at police station. No disclosure statement was made by him and his signatures were obtained on blank papers. He stated that this is a false case and he is innocent and has been falsely implicated in this case. Parvesh had taken Rs.60,000/- from him for allotting Tehbazari site and whenever he demanded his money from him as no Tehbazari was allotted, he used to threaten him and his amount was also not returned. He stated that he would lead evidence in his defence.
15) Accused Joginder in his statement u/s 313 Cr.PC stated that he was arrested from his office at Hassan Pur. He did not make any disclosure statement and his signatures were obtained on blank papers. He admitted that he has refused to join TIP proceedings and stated that he was shown to the witnesses in the police station. He is innocent and has been falsely implicated in this case. He also stated that he would lead evidence in his defence.FIR No.:86/2011, PS: Gandhi Nagar Page 10 of 43
11
16) Similarly accused Jagga in his statement u/s 313 Cr.PC has stated that he was arrested from field near Yamuna River. He did not make any disclosure statement and his signature were obtained on blank papers. He also admitted that he refused to join TIP proceedings. He stated that he was not aware as for what purpose he was asked to go under the TIP proceedings. He is innocent and has been falsely implicated in this case. He also stated that he would lead evidence in his defence.
17) In defence, accused persons examined DW-1 Sh. Karan Singh and DW-2 Sh. Preetam Kumar.
18) I have heard Sh. Ravinder Bhati, Ld. Addl. P.P. for State and Sh. B. B. Sharma and Sh. P. L. Behl, Advocates for accused persons I have also gone through the record.
19) PW-1 Jarnail Kotiya is the complainant. He testified that he was doing construction business and he was also trading in clothes.
On 28.3.2011, at about 1:00 p.m., he alongwith his elder brother Parvesh Kumar, younger brother Kamal and his known persons Jagdish Prasad and Anil Verma were sitting in his office at 1045, Patel Gali No.2, Gandhi Nagar. Four persons including accused Jabbar, came at their office and they were armed with revolver. On the point of revolver, they covered them. Accused Jabbar told his brother Parvesh "Tujhe hamne pahle bhi kaha tha ki tune Kashmiri Lal ko Trustee Secretary pad se hatwaya tha aur tum Ishwar Singh aur Jai Pal Singh ko bhi trustee nahi FIR No.:86/2011, PS: Gandhi Nagar Page 11 of 43 12 mante ho, to aaj tum sabko khatam karke jaayenge" Accused Jabbar was known to him prior to the occurrence. He identified the other two accused in the court, who were associates of accused Jabbar at the time of incident. Later he came to know that their names were Joginder and Jagga. Thereafter, Jabbar and one of his associates, who is not present today, tried to pull Parvesh, they tried to resist and then accused (witness pointed out towards accused Jagga) hit barrel of the revolver on his face. Accused Joginder hit butt of revolver on the face of his brother Kamal Kumar. Accused forcibly dragged his brother Parvesh Kumar outside the office. Accused Jabbar and other associate, who was not present in the court, to whom he could identify if shown to him, had dragged her brother Parvesh outside the office and the other accused persons, present in the court, had covered them inside the office on the point of revolvers. They heard the noise of abuses from outside. They could not get out of the office as accused were standing at the gate of the office. Thereafter accused persons gave beatings (sic) to Parvesh with iron rods. Thereafter the accused persons left from there. They also came out. While leaving, accused were saying "Phir Aayenge, Jaan se maar denge". His brother Parvesh had become unconscious. He informed the police at 100 number. We then rushed Parvesh in the car of neighbourer to Police Station Gandhi Nagar. Police then took them to SDN Hospital. After examination, the doctor referred Parvesh to higher centre for FIR No.:86/2011, PS: Gandhi Nagar Page 12 of 43 13 management. Parvesh was then taken to Ram Lal Sunder Lal Orthopedics Centre at Pandav Nagar for treatment. Parvesh received multiple fractures on his left hand and both legs and was operated upon in the hospital. He stated that his statement was recorded at the hospital at Pandav Nagar, which is Ex.PW-1/A.
20) He further stated that on 02.04.2011, police called him in the police station and joined him in the investigation. At about 5:00 p.m., they reached Jheel Chowk Gandhi Nagar. Accused persons were going through there. They were apprehended by the police at his instance. Accused Jabbar was arrested and his personal search was conducted. Police also arrested the other accused. At the time of incident, his brother Parvesh was wearing a pant and shirt. The pant was soaked in blood and it was removed by the doctor and kept in a pullanda and handed over to the police and police took the pullanda of pant into possession and he identifed the same as Ex.P1.
21) PW-2 Sh. Kamal Kotiya is brother of PW-1 and witness of incident. He has corroborated PW-1 regarding their presence on 28.03.2011 at their office at Gandhi Nagar, accused persons arrived and covered them on the point of revolver and he alongwith his brother PW-1 were hit by butt, injured Parvesh was dragged outside office by Jabbar and one of his associates (not arrested) and he and PW-1 were confined in office, accused FIR No.:86/2011, PS: Gandhi Nagar Page 13 of 43 14 Jabbar was only known to them previously, words/threat uttered/extended by accused Jabbar and beatings given to Parvesh after dragging him outside shop and thereafter they left. He also corroborated regarding fact of going to police station from where they were sent to SDN Hospital where injured Parvesh was referred to higher centre and taken to Ram Lal Kundan Lal Orthopedics hospital where he was operated upon. He was cross-examined by Ld. Addl. PP for State as his testimony was not in complete consonance with previous statement. Thereafter he stated that he does not remember whether accused had threatened them to come again at the spot and to kill them on the point of revolver while escaping from the spot and voluntarily stated that he does not remember the said fact due to lapse of time.
22) PW-4 Sh. Parvesh Kumar is also witness of incident and injured. He stated that Jagdish Prasad and Anil Verma are his neighbourers and they both are members of a Nijdham Charitable Trust at Haridwar and he is also member of the said charitable trust. He corroborated other witnesses/ his brothers PW-1 and PW-2 regarding their presence alongwith neighbourers Jagdish Prasad and Anil Verma on 28.03.2011 in office at Gandhi Nagar, accused persons arrived and covered them on the point of revolver and his brothers PW-1 and PW-2 were hit by butt, he was dragged outside office by Jabbar and one of his associates (not arrested) and they were threatened to FIR No.:86/2011, PS: Gandhi Nagar Page 14 of 43 15 sit quietly otherwise they would be killed and accused Jabbar was only known to them previously, words/threat uttered/extended by accused Jabbar and beatings given to Parvesh after dragging him outside office and thereafter they left. In addition, he also testified that thereafter accused Jabbar and the fourth assailant (PO) dragged him out of his office in the gali and he tried to run away by pushing the accused in order to save him, then accused Jabbar fired at him from his revolver but the bullet did not hit him. 7-8 associates of the accused having revolvers and iron rods in their hands were already standing in the gali, surrounded him. Accused Jabbar took iron rod from the hands of one of his associates and tried to hit him on his head. He tried to save himself with his left hand as a result of which he received injury on his left arm. Then accused persons gave severe beatings to him with iron rods as a result of which, he received injuries on his both legs, waist and ribs and he got fracture on his legs and left arm. When accused were beating him, the public persons starting gathering in the gali. On seeing the crowd gathering, accused fled away while firing in the air threatening him to teach him a lesson again. He was rushed to SDM Hospital by his brothers and neighbours. Police met him in the hospital. The trust had removed Kashmiri Lal from the membership of the trust for the misappropriation of funds. Kashmiri Lal was under the impression that he had hand in his removal from the trust and therefore he and Ishwar Singh FIR No.:86/2011, PS: Gandhi Nagar Page 15 of 43 16 had threatened and manhandled him and other trustees of Nijdham Charitable Trust and therefore before this incident, he had filed a complaint against Kashmiri Lal and Ishwar Singh at PS Prashant Vihar. His statement was recorded in writing by the police at the hospital which is Ex.PW-4/A. Doctor had seized his clothes at the hospital.
23) MLC of injured Pravesh Kumar is exhibited as Ex.PW-9/A. PW-9 Dr. Shamoli Kundu, CMO SDN Hospital was examined and he has deposed that on 28.3.2011 he was working as CMO and examined patient Parvesh Kumar with alleged history of being involved in a quarrel and being beaten with heavy rods, at 1:15 p.m. and on examination, he found following injuries:-
i. Alignment disrupted of left forearm, movements restricted and tenderness was present ii. Alignment disrupted both side, movements restricted of lower limb both sides.
24) After giving first aid, the patient was referred to orthopaedics surgeon. He advised x-ray of right leg, left leg and left forearm and x-ray pelvis and both hips. On 25.4.2011, he examined the x-ray reports and found:-
i. He found fracture in shaft of right tebia and fibula i.e. both bones of lower limb and also fracture in fibula of left leg. He also found fracture in shaft of left forearm in FIR No.:86/2011, PS: Gandhi Nagar Page 16 of 43 17 radius ulna and communited of lower end of radius. On the basis of this opinion, he opined the nature of injuries to be grievous in the MLC.
25) PW-10 Dr. Rajiv Gupta, Radiologist, SDN Hospital was also examined. He deposed that on 28.3.2011 he was working as Radiologist at SDN Hospital and on that day he examined x-ray plate of one Parvesh Kumar vide x-ray no.104 dtd. 28.3.2011 and he opined as i. X-ray pelvis with both hips : NBI ii. x-ray chest : no bony or lung injury seen iii. x-ray right leg with knee : fracture shaft right tibia and fibula seen iv. x-ray left leg : fracture on left fibula seen v. x-ray fore arm : fracture shaft of left radius and ulna seen with communuted fracture of lower of left radius.
26) It is submitted by Ld. Counsel Sh. B. B. Sharma on behalf of accused Jagga that initial FIR was registered for offences punishable u/s 452/323/506/34 IPC on the complaint of Sh.
Jarnail Singh. No opinion regarding nature of injury was given. Subsequently charge-sheet was filed with nature of injury as grievous. The injury is not on vital part of the body and therefore offence punishable u/s 307 IPC is not made out. Further it is submitted that admittedly large number of public FIR No.:86/2011, PS: Gandhi Nagar Page 17 of 43 18 persons were present but no independent public witness has been joined in the investigation. Despite the fact that they knew name of one of the assailants, they had not given name of the assailant to doctor and it was mentioned as assault by unknown and subsequently by way of improvement name of the assailants was given. Further it is submitted that star witness of the prosecution case is injured Parvesh who was examined by the police after four days of the registration of FIR wherein he has given typed statement after having advise of the advocate and made vital improvements to falsely implicate accused persons in this case.
27) Ld. Counsel also pointed out that there are material discrepancies and inconsistencies in the statement of witnesses. As per police version constable had taken only two persons alongwith him to hospital and it is not explained as to how injured Parvesh had gone to the hospital whereas SI states that injured were removed by PCR to the hospital. PW- Jarnail and PW-Kamal were brothers and therefore interested witnesses and independent witness has not been supported the prosecution. PW-11 was 84 years old and a man of this age would naturally speak truth and he has not supported the prosecution case. PW-2 has also denied suggestion of preparing site plan and therefore at whose instance site plan was prepared is not clear. Further, it is submitted that no bullet or empty cartridge has been recovered from the spot and nor despite the fact that police FIR No.:86/2011, PS: Gandhi Nagar Page 18 of 43 19 remand were taken rod and alleged revolver were not recovered which falsify the version created by injured. Further there is no injury on the face who had allegedly sustained injury from the butt of the revolver.
28) Sh. P. L. Behl, Ld. Counsel for accused persons Jabbar and Jogender submitted that name of the neighbour, who had taken injured in car, is deliberately concealed and make and registration number of the car by which allegedly injured were removed from the spot to the police station and thereafter from the police station to hospital are not disclosed. No PCR call was made nor PCR took them to hospital and therefore no reliance can be placed on the version. Further, integral part of the statement was falsified by making vital improvement by which they were confronted with. The version of firing is not supported, and moreover the version of firing had come by way of supplementary statement after 7 days of the incident. Further submitted that the version of arrest is also false - as per police version, witness pointed out only towards Jabbar and not towards other person but they were arrested and therefore it cannot be said that these persons were involved in the occurrence otherwise they would have been identified at the spot itself and they were simultaneously arrested and therefore subsequent test identification parade (TIP) of accused persons is of no consequence. It is also submitted that as per witnesses the office was of small size and despite that there was no sign of FIR No.:86/2011, PS: Gandhi Nagar Page 19 of 43 20 dragging, breaking of any furniture, glasses or any other articles at the spot and therefore story of dragging injured Parvesh from the office is not believable.
Scene inside the office.
29) In view of above submissions of Ld. Defence Counsel, the evidence shall be appreciated. PW-1 complainant Sh. Jarnail Kotia in his cross-examination on behalf of accused Jabbar and Joginder has stated that the office is at the ground floor and there are two more floors over the office, which were used for residential purpose, however, he did know about them. The gali is 10-12 ft wide. He stated that size of the office is about 7ft x 7 ft or 8 x 8 ft. His office is at 1 ½ above the road level. There is an aluminum gate of the office and there is a glass fitted on the gate of the office with blinds on the inner side. There is a centre table in the office measuring about 4ft x 1 ½ ft. On 28.3.2011, he came to the office at about 12:30 p.m. and Jagdish and Anil were already sitting in the office.
30) PW-1 was confronted with portion of his statement that they tried to resist when Jabbar and one of his associates tried to pull Parvesh. PW-1 was also confronted with the portion of his statement wherein it is not so recorded that one of the associates of Jabbar hit butt of revolver on the face of Kamal Kumar.
31) In his further cross-examination, PW-1 stated that his brother did not respond to the utterance made by accused Jabbar and FIR No.:86/2011, PS: Gandhi Nagar Page 20 of 43 21 voluntarily stated that he did not get any opportunity as Jabbar and his associate tried to pull out his brother. He was not beaten up by anyone prior to the pulling out of his brother. It hardly took about one minutes in making the utterance and dragging out of his brother. Jabbar and his associate were having revolver in one hand and they were dragging out his brother with the other hand. The glass of the door had not got broken. He admitted that Jagdish, Anil, Kamal and he remained inside. The door got closed because of the door closer and they did not try to throw the chair etc. on the other assailants and voluntarily stated that there was no space to lift the chair and throw it. The two assailants inside had beaten them. They hit him with the butt of the revolver on his face. None of 20-30 persons present outside told him that as to what had happened with Parvesh outside. The rod was not seen lying outside when they came out. His statement was recorded at hospital by head constable.
32) PW-2 Sh. Kamal Kotiya stated in his cross-examination on behalf of all three accused persons that the office of Jarnail is at the ground floor and there are two floors above the office which are being used as residence but did not know who were residing on those floors. He admitted that office of Jarnail is a small office but could not say the size of office is 7x7 ft. There is a central table in the office behind which a chair on which his brother sits and there is a settee in front of the table and he was sitting on the settee and there were two chairs on the side of the FIR No.:86/2011, PS: Gandhi Nagar Page 21 of 43 22 table. He admitted that there is a 10 ft gali in front of the office of Jarnail and there are residential houses opposite to office which is thoroughfare. On 28.3.2011, he came to office of Jarnail at 12:45 p.m. and as it was Monday and therefore his shop was closed and he had no work and therefore had come to meet his brother. Anil and Jagdish were already present in the office when he reached there. The chair in the office did not fall while Parvesh was being dragged outside the office. No damage was caused to the furniture lying in the shop.
33) PW-4 Sh. Parvesh Kumar, injured was cross-examined at length and his cross-examination is running in to 22 pages. In his cross-examination on behalf of accused Jabbar and Jogender, he stated that he has been running his office at the place of incident for last about 8 years. At the relevent time, there were three floors in the building where his office was located, however, he could not tell as to who were residing on the first and second floor in the building where his office was located in the ground floor on the day of incident. The lane outside his office was about 12 feet. There were 12-15 houses in front of his office. He could not tell the name of any of his neighbourers who were residing in front of his office. His office was 8 ft x 8ft in dimension. He was having a table in his office measuring about 4 x 1 ½ ft. He was having his chair across the table and at the time of incident two chairs were lying on his right side and a settee was lying front of him. His office was at a height of 1 - 1 FIR No.:86/2011, PS: Gandhi Nagar Page 22 of 43 23 ½ feet from the road. There was a aluminum gate with glass. The gate was also having blinds. PW-4 also admitted that when he was dragged by the accused persons outside his office, no furniture was broken and voluntarily stated that the centre table was disturbed from its place.
34) In his further cross-examination on behalf of Jabbar and Joginder, PW-4 stated that he could not tell the exact distance from his office in feet till the place he was dragged but he was dragged just outside his office. His clothes had torn during dragging. He could not say whether he had received any abrasion on his back when he was dragged from his office and voluntarily stated that he had sustained small abrasion on his body. He was crying when he was beaten on the road. He could not say as to how many public persons had collected on the spot on hearing his crying. He did not know the name of the persons who had gathered there. He could not say whether Pappu, the Sikh family residing opposite his office and other neighbourers had collected at the spot or not. He stated that neither police asked him nor he own his own disclosed the police the name of the person who had collected at the spot on hearing his crying.
The scene outside office & removal to Hospital
35) PW-1 Sh. Jarnail Singh stated that when he came out of the office, he saw Parvesh lying in front of the office 2-4 steps away and 15-20 public persons were present there at the spot. The FIR No.:86/2011, PS: Gandhi Nagar Page 23 of 43 24 incident took place for about 5-6 minutes. He denied the suggestion that he passed no information to police at 100 number. PCR did not reach at the spot as long as he was there. He took Parvesh to the police station in a car. He did not notice blood on the road but his clothes were blood stained. He and Kamal lifted Parvesh and made him lie down in their lap in the car. He did not know who had brought the car and number of the car and who was the owner of the car and who droves the car to the police station. They stopped at the police station for 5- 7 minutes. He did not take note of his clothes had also got blood stained and police did not ask for his clothes or the clothes of Kamal in his presence. He did not take note if any blood had fallen in the car.
36) In his cross-examination on behalf of accused Jagga, PW-1 stated that he and his brother Kamal were declared fit for statement by the doctor but did not know about Parvesh. He could not tell whether the statement in writing was recorded by the IO in his presence after he narrated the incident because he had to leave for arranging the blood for left hand surgery of Parvesh. IO came at the hospital for about 4:00 to 5:00 p.m. after they reached there. He stated that the doctor questioned them only about the assault and not about the person who caused them injuries and therefore he did not know whether the word 'someone' assaulted them is written by the doctor by his own. They reached SDN hospital at about 1:30 - 1:45 p.m. FIR No.:86/2011, PS: Gandhi Nagar Page 24 of 43 25 Neither he nor Kamal made any effort at the hospital to call the police. Jagdish and Anil did not accompany them to the police station in car. He and Kamal did not enter inside the police station and they remained sitting in the car with Parvesh in their lap. Kamal requested someone to call somebody from the police station. He admitted that he had engaged a private counsel for opposing the bail application and for trial. PW-2 stated that he and his brother Jarnail started bleeding because of being hit by the butt of the revolver. He did not remember whether blood had fallen on the clothes of Jarnail and police neither seized clothes of Jarnail nor his clothes nor he was asked to provide the same.
37) PW-2 stated that the incident took place for about 5-7 minutes.
The blood was not lying at the place where Parvesh was lying unconscious. He stated that he did not remember the telephone number from which Jarnail informed the police at 100 number. He did not make call to the police at 100 number. When they came out in the gali, he saw 25-30 neighbourers who gathered in the gali. Police made no enquiry about the names of those neighbourers and he himself did not tell the names of those neighbours to the police. The PCR did not come at the spot in his presence. He also stated that he did not remember the number and colour of the vehicle and the name of the neighbourer in whose car Parvesh was taken to the hospital and name of the person who was driving the car. He and Jarnail accompanied Parvesh in the car first to the police station and FIR No.:86/2011, PS: Gandhi Nagar Page 25 of 43 26 then to the hospital. The blood had not fallen in the car although the clothes of Parvesh had got blood stains. They reached the police station at about 1:15-1:20 p.m. Neither he nor Jarnail went inside the rooms in the police station to report the matter and he voluntarily stated that police officials came outside and asked them to take Parvesh to the hospital. There were about 10 neighbours and he had requested them to go inside the police station and tell the police. He did not know whether police recorded (sic) their statement. The neighbours did not accompany them in the car to the hospital. Their (witnesses) statements were not recorded before taking Parvesh to the hospital. One constable was sent with them to the hospital.
38) PW-2 stated that he remained in the SDN Hospital for about 30 minutes. They reached Ram Lal Kundan Lal Orthopeadics Hospital at about 2:00-2:15 p.m. He did not remember the time when IO met them in the Kundan Lal Hospital. He stated that his brother Parvesh was discharged from the hospital after about 10 days and till then he remained at the hospital on his bed side. Police did not contact Parvesh on 28.3.2011 for recording the statement. He could not tell after how many days of the incident his statement was recorded. Parvesh did not respond to the utterance of Jabbar and voluntarily stated that he could not get the opportunity to respond.
39) In his further cross-examination on behalf of accused Jagga, FIR No.:86/2011, PS: Gandhi Nagar Page 26 of 43 27 PW-4 Sh. Parvesh stated that he was not fully conscious when he was examined by the doctor at SDN Hospital and voluntarily stated that he was suffering immense pain due to the injuries sustained by him. A police official had accompanied him from the police station itself on the day of occurrence. His brother Jarnail as well as Kamal were in the car when they went to the police station. He could not tell whether Jarnail or Kamal ever went inside the police station to report the incident. He stated that he might have reached the police station alongwith his brother after about 5 or 10 minutes of the incident. He also stated that he did not know in whose car he was taken by his brothers to the police station and thereafter to the hospital and till today (on the day of cross-examination) neither Jarnail nor Kamal had ever disclosed to him that who went inside the police station and reported about the incident and voluntarily stated that he was told by Jarnail that he had lodged the FIR. He stated that his statement was recorded by the police on 3.4.2011. He stated that he did not remain inside the operation theater right from 28.3.2011 to 03.4.2011 and in fact during these days he also remained in ICU ward of the said hospital. No police official either contacted him or met in the hospital between the above said dates. He was discharged from the hospital on 6.4.2011. He admitted that no police official ever enquired from him to know about the place of incident where he was assaulted and even his brothers did not disclose him that ever they had FIR No.:86/2011, PS: Gandhi Nagar Page 27 of 43 28 shown place of incident to the police officials.
40) PW-4 further stated that he did not know who made the PCR call and after how much time PCR Van came to the spot. He could not tell as to who was driving the private vehicle in which he was taken to hospital and also could not tell its make, colour and registration number. He stated that after six months of the incident, he came to know that private counsel has been engaged on their behalf and did not know if private counsel has been appearing in this case since very beginning and has been opposing the bails of accused persons. During six months period, his brother did not tell him about engaging of private counsel. He was not fully conscious when he was medically examined at SDN Hospital as he was suffering with acute pain. He did not remember for how much time he was treated in SDN Hospital. As far as he remember he had undergone x-ray examination at SDN Hosptial. He did not remember as to when his counsel had visited Ram Lal Kundan Lal Hospital when he was admitted there. He was in room when her statement already Ex.PW-4/A was recorded. He did not remember if his brother Jarnail and Kamal were present in the hospital when his statement Ex.PW-4/A was recorded. He did not recognize SI Mahavir. There were two police officials when Ex.PW-4/A was recorded, however, he did not remember their names and designation. Ex.PW-4/A was recorded within 10-15 minutes. He denied the suggestion that Ex.PW-4/A was recorded after FIR No.:86/2011, PS: Gandhi Nagar Page 28 of 43 29 deliberation and legal consultant by him on afterthought allegation.
Associates of accused Jabbar.
41) PW-4 stated that when he was dragged, two accused persons remained inside the office. Accused Jagga remained inside the office at that time when he was dragged outside the office. Inside the office the incident remained only for two minutes and even only for two minutes the incident remained outside the office. He could not tell description of those 7-8 associates of the accused persons those who had also participated in the incident outside his office. He admitted that he did not see anyone out of those 7-8 associates near his residence till today.
42) PW-4 admitted that in his statement of 3.4.2011 made by him to the police, he did not disclose either the name of Jagga accused as well as his description and voluntarily stated that name of accused was not known to him till that time. He had sustained blows of the rods on his person caused by 7-8 persons. He had received rod blows at the hands of 7-8 persons near his waist on his legs as well as his foot. He admitted that till today no residents near his office disclosed him that the bullet fire ever struck against their door or ever seen by them fired on 28.3.2011 by the assailants and voluntarily stated that he had not visited his office after the day of incident till date. He had closed the said office and stopped visiting there. I did not FIR No.:86/2011, PS: Gandhi Nagar Page 29 of 43 30 disclose the name as well as the description of the assailants to the doctor during his examination and he voluntarily stated that doctor had not asked the name and description of the assailants. He admitted that the place of incident is the residential cum commercial space.
43) In his further cross-examination on behalf of accused Jogender and Jabbar, PW-4 stated that he never made any complaint against accused Jabbar with MCD or police at any point of time. He was having licensee revolver since year 2002. He stated that his statement was being reduced into writing apart from two police officials perhaps one of his brothers namely Jarnail Kotia was also present and also stated that either those police officials or his brother Jarnail Kotia had written his statement Ex.PW-4/A. PW-1 & 2 were confronted with portion of their statements where they have made improvements.
44) PW-1 was further confronted with the portion of his statement wherein it is not so recorded that they could not get out of the office as accused were standing at the gate or that when his brothers Parvesh was being dragged by accused Jabbar and one of his associates, two other persons had covered them inside the office on the point of revolver.
45) PW-2 stated that he has stated to police in his statement that Jabbar and one of his associates tried to pull Parvesh wherein it is no specifically mentioned that Jabbar and one of his FIR No.:86/2011, PS: Gandhi Nagar Page 30 of 43 31 associates tried to pull Parvesh but only thing mentioned is 'unhone'. He was further confronted with the portion of his statement that when they tried to resist accused Jagga hit the barral of revolver on his face or that they heard the noise of abuses from outside, wherein it is not so recorded. PW-2 was also confronted with the portion of his statement that when they tried to stop them, the accused Joginder hit the butt of the revolver on his face wherein it is not so recorded. He was further confronted with the portion of his statement that his brother Jarnail was also hit with revolver on his face by one of the accused.
46) PW-2 was also confronted with the portion of his statement that he heard the noises of abuses and the sound of beaten by iron rods. He also confronted with portion of his statement that they came out and found Parvesh lying unconscious.
Police officials.
47) PW-5 HC Kunwar Pal in the police official whom the DD No.39-B was marked for investigation. He testified that on 28.3.2011, he was posted at PS Gandhi Nagar as Head Constable and on that day, he received DD No.39B Ex.PW-5/A for further proceedings. As soon as he was about to leave the police station, injured Parvesh, Jarnail Singh and Kamal reached at the police station. He filled injury sheets and sent the injured person to SDN Hospital through Constable Sunil Kumar FIR No.:86/2011, PS: Gandhi Nagar Page 31 of 43 32 for their medical examination. Ct. Sunil Kumar returned back to the police station and handed over him the MLCs of the injured and informed him that injured had gone to some other hospital and came to know that injured had gone to Ram Lal Kundan Hospital, Pandav Nagar. Thereafter, he alongwith Ct. Sunil Kumar reached at Ram Lal Kundan Lal Hospital and injured Parvesh Kumar had already been taken to operation theatre while other injured met him in the Emergency. He recorded the statement of Jarnail Singh and prepared rukka and got the FIR registered through Ct. Sunil Kumar. Jarnail Singh handed over him a sealed pullanda bearing seal of hospital containing pant of injured Parvesh which was taken into possession and he alongwith injured Kamal reached at the spot i.e. H. No. 1045, Patel Gali No.2, Gandhi Nagar, Delhi where he prepared site plan at the instance of Kamal Kotiya and recorded the statement of witness. However, injured Kamal Kotiya has denied that site plan was prepared at his instance.
48) PW-5 in his cross-examination stated that at first instance, he took them to hospital and their statement was not recorded at that time. They all three were in conscious state and they met him at the gate of PS. He admitted that he did not accompany Ct. Sunil for medical examination of the injured to the hospital. After recording the statement of Jarnail Ex.PW-1/A he made endorsement of registration of case u/s 452/323/506 read with S. 34 IPC as well as 27 Arms Act. He admitted that no lathi or FIR No.:86/2011, PS: Gandhi Nagar Page 32 of 43 33 iron rod was found near the spot. Driver of TSR, who took the injured to the PS, did not meet him at the spot. The office was of medium size of a shop There were chair and table lying in the office. PW-5 admitted that there were transparent glass in the office of Parvesh and the person while sitting inside the office could see outside. He also admitted that in their statement Kamal Kotiya and Jarnail Singh had not levelled any allegation of firing a bullet. No empty cartridge or shell was found outside the shop to him.
49) From the testimony of witnesses and their cross-examination, it is established on record that office of injured Parvesh was small having door with closer and was opening on street which was about 10-12 ft in width. Three witnesses examined by the prosecution namely Parvesh, Kamal and Jarnail are injured and therefore their testimony cannot be treated that of interested witnesses but shall be on higher pedestal. PW Jarnail and Kamal testified that they were covered by associates of accused Jabbar in the office and they were hit by butt of revolver which resulted in bleeding injury. MLC of Kamal Kotia Ex.PW-13/A mentions that on local examination contusion over left zygoma and below lower eye lid 1"x1" c/o heariness in left ear and tenderness on the left interior chest. The MLC of injured Jarnail Ex.PW-13/B finds mentioned one CLW 2 cm x 1 cm (approx) on the left chest, active bleeding present; there was surrounding contusion of ½" x ½" and no restriction of movement. Therefore presence FIR No.:86/2011, PS: Gandhi Nagar Page 33 of 43 34 of PW-1 and PW-2 at the spot and their version that they were hit by the butt of revolver find fully corroborated by medical evidence as well as by each other.
50) Next important question is as to who had given beatings to Parvesh and whether gun shot fire was made? Admittedly PW Kamal and Jarnail were present inside the office, which was just near the place where accused Parvesh was given beatings and none of them had stated that they heard sound of firing and therefore testimony of Parvesh to the effect that revolver fire was shot at him does not inspire confidence on account of fact that he had given statement to the police subsequently and apparently after seeking legal advise from his lawyer and he has made other vital improvements. Moreover admittedly neither bullet nor empty cartridge was recovered from the spot nor there was any mark noticed by the IO at the spot. However, the version of injured Parvesh that he was dragged out of the office and was given beatings by iron rod stands corroborated by his own medical evidence and PW-1 and PW-2.
51) Now question arises as to who has caused injury? All three witnesses are consistent that it was accused Jabbar who alongwith his other associates had dragged Parvesh out of the office and Parvesh had also stated that Jabbar had given beatings with iron rod. Therefore there is no iota of doubt that it was accused Jabbar who had caused injury on the person of FIR No.:86/2011, PS: Gandhi Nagar Page 34 of 43 35 Parvesh with blunt object. PW-9 Dr. Shamoli Kundi has very categorically stated he found fracture in shaft of right tebia and fibula i.e. both bones of lower limb and also fracture in fibula of left leg. He also found fracture in shaft of left forearm in radius ulna and communited of lower end of radius. On the basis of this opinion, he opined the nature of injuries to be grievous in the MLC. Therefore it is proved that accused Jabbar with his associates had caused injury with common intention on the person of complainant Jarnail, his brothers Kamal Kotia and Parvesh Kotia. Nature of injury in respect of injuries caused to PW-1 and PW-2 is opined to be simple, however, nature of injury regarding injury caused to Parvesh is opined to be grievous.
52) Now next important questions arises as to whether offence punishable u/s 307 IPC is made out? The injuries on the person of injured Parvesh are not on the vital part of the body and allegations regarding firing of bullet is disbelieved and therefore I am of the opinion that offence punishable u/s 307 IPC is not made out.
53) As regards offence punishable u/s 506 IPC, since witness was hostile on this point and even after cross-examination he had not stated that he does not remember whether accused had threatened them to come again at the spot and to kill them on the point of revolver while escaping and therefore I am of the FIR No.:86/2011, PS: Gandhi Nagar Page 35 of 43 36 opinion that threat is doubtful. Accordingly offence punishable u/s 506 IPC is not made out.
54) Now coming to arrest of accused. PW-14 Retired SI Mahavir Singh was the investigating officer. He testified that on 2.4.2011, he was present in the police station and the complainant Sh. Jarnail Kotia came in the police station and he alongwith HC Dinesh, Ct. Chandrakant and complaiant left the police station for the search of accused persons. When they reached at Jheel Chowk, the complainant pointed out towards a person stating that a person who is standing with two other person is Jabbar. On pointing out and on identification of complainant they overpowered said person and his name on enquiry was revealed as Jabbar. The other two boys who were standing with Jabbar started running and HC Dinesh and Ct. Chandrakant apprehended those two persons. Name of those persons were revealed as Jogender and Jagga. He arrested all of them. During investigation, the accused persons pointed out the place of incident and in this regard he prepared pointing out memo. He further stated that he moved application for one day PC remand of accused Jabbar and the remaining two accused persons were sent to J/C in muffled face. On the same day, he moved application for the TIP of accused Jogender and Jagga. He further stated that they refused to participate in TIP proceedings.
FIR No.:86/2011, PS: Gandhi Nagar Page 36 of 4337
55) PW-7 HC Dinesh is another witness of arrest. He corroborated other witnesses regarding pointing out by complainant towards Jabbar to be assailant and his apprehension and Jogender and Jagga started running on seeing them and thereafter they were chased and apprehended. He stated that complainant did not point out against accused Joginder and Jagga. On being put leading question, he admitted that accused persons pointed out the place of incident and accused Joginder and Jagga were kept in muffled face immediately after their apprehension.
56) IO in his cross-examination on behalf of accused Jagga, admitted that on the personal search memos and arrest memos of accused Jagga and Jogender, signatures of witness Jarnail Kotial were not obtained. In his further cross-examination, he admitted that name of accused Jagga and Joginder or their description was not mentioned in the statement of Kamal Kotia or Jarnail. He did not observe any mark of firing on the nearby buildings of the spot. On 2.4.2011, PW Jarnail Kotia came to police station on his own at about 10:00 - 11:00 a.m. and was alone. They left police station after 15-20 minutes of arrival of Jarnail Kotia. They made departure and arrival entry but he did not remember the number of same. PW Jarnail pointed out only accused Jabbar at the distance of 10-15 meters. PW Jarnail Kotia knew Jabbar prior to the incident.
57) PW-7 HC Dinesh in his cross-examination stated that they left FIR No.:86/2011, PS: Gandhi Nagar Page 37 of 43 38 the police station at about 4:00 p.m. on 2.4.2011.The spot where accused persons were arrested is a crowded area. They were in civil dress. The returned to police station from the spot around 6:00 p.m. and PW Jarnail also accompanied them to police station from the spot.
58) PW-1 complainant admitted that accused Joginder was not known to him either by name or face prior to the occurrence. He did not give the age and description of accused Joginder in his statement. PW-2 also admitted that he had not seen accused Joginder and Jagga prior to the incident or knew them by name or face. He did not tell the names of the assailants including that of Jabbar to the doctor. PW-4 stated that Jagga accused was not known to him prior to the incident and he was not arrested by the police at his pointing out. PW-4 stated that he did not know accused Joginder prior to the incident either by name or by face and he did not give any description of accused Joginder including his height, colour, age and the clothes worn by him, to the police. He voluntarily stated that police did not ask the same. He admitted that he did not give feature of any of the three associates of accused Jabbar who had entered in his office in his statement before the police and voluntarily stated that police did not ask the same. Accused Joginder was never arrested in his presence.
59) Admittedly, all the witnesses are consistent that accused Jagga FIR No.:86/2011, PS: Gandhi Nagar Page 38 of 43 39 and Jogender were not known to them prior to the incident and even they did not know them by their faces also. As per police witnesses, complainant Jarnail Singh only pointed out towards accused Jabbar from 10-15 meters and not towards remaining two accused persons namely Jogender and Jagga, however, on seeing police when they started running they were apprehended. All the witnesses had seen the assailants who had arrived in their office and caused injuries to Parvesh. Had Jagga and Joginder alongwith other associates and Jabbar arrived at the spot without covering their face, the complainant Jarnail Singh would have pointed out towards them as well to be assailants as well, but he did not do so. They were apprehended as they started running on seeing them as per police version. Moreover, admittedly, the arrest memos and personal search memos of accused Jagga and Jogender do not bear signature of complainant Jarnail Singh, which creates doubt regarding their involvement in the incident and apprehension at the instance of complainant Jarnail Singh. The other public witness, PW Anil and PW Jagdish did not support the prosecution case that it was accused persons who caused injuries to Parvesh and others.
60) Now coming to the submission that name of the assailants was not disclosed to the doctor. The doctor has prime duty to provide treatment as per the history of injury. The history of injury was given as assault by unknown. The doctor in his cross-examination has stated that he did not ask the name of the FIR No.:86/2011, PS: Gandhi Nagar Page 39 of 43 40 assailants from the injured. Therefore there is no question of the name actual assailants withheld and the accused were implicated subsequently.
61) As regards the submissions that PW Parvesh is not reliable as he has given his statement after legal consultation after four days of the incident and had imputed motive which was found to be not true as per the investigation and he had deliberately named accused Jabbar on account of his persistent demand of returning his money. It is true that the statement of Parvesh Kotia was recorded after sometime and from his statement, it appears that it was well thought statement. Yet the injury on the person of Parvesh and the statement of his brothers regarding presence of accused Jabbar and his associates provides assurance to the court regarding truthfulness of vital part of his evidence. As regards the inconsistencies and improvements, the improvement as noted are minor in nature and do not go to the root of the matter. On the other hand, the medical evidence provides due corroboration to the version of hitting face with the butt of the revolver.
62) Accordingly as per discussion above, I am of the opinion that prosecution has succeeded in proving offences punishable u/s 323/452/325/34 IPC against accused Jabbar.
63) Now coming to defence of accused Jabbar that he has given Rs.60,000/- to Parvesh for allotment of MCD kiosk which he FIR No.:86/2011, PS: Gandhi Nagar Page 40 of 43 41 had not returned despite his several demands and on that account he was falsely implicated in this case. He examined DW-1 Sh. Karan Singh and DW-2 Sh. Preetam Kumar in his defence. DW-1 Sh. Karan Singh has stated that he is running general store at Daryaganj for last 17 years and he knows accused Jabbar, who is also having his photostate shop near his shop and accused is running under the name and style of J. R. Photostat. Around Diwali, 2009 he had gone to aforesaid shop of accused Jabbar in noon time. Another shopkeeper Pritam was also present there, accused Jabbar and Parvesh @ Gopi were also present there. He knows Parvez @ Gopi who has been dealing in property dealer business. At that time, accused Jabbar and Parvez @ Gopi were discussing allotment of khokha from MCD, Parvez @ Gopi told Jabbar that he had good acquaintance with Commissioner, MCD and he would allotted to accused Jabbar near Shastri Park and demanded Rs.1 lakh for accused Jabbar for getting allotted Khokha. In his presence accused Jabbar gave Rs.60,000/- as advance to Parvez @ Gopi who assured accused Jabbar that he would get allotted khokha to him after sometime from MCD. In July, 2011 accused met him and when he asked about getting khoka from Parvez @ Gopi, accused Jabbar told him that Parvez @ Gopi had neither got allotted any khokha to him nor returned Rs.60,000/- taken from him. In his cross-examination by Ld. Addl. PP for State, he stated that he was not a witness in any document relating to FIR No.:86/2011, PS: Gandhi Nagar Page 41 of 43 42 handing over of Rs.60,000/- by accused Jabbar to Parvez @ Gopi and voluntarily stated that no document was prepared of this transaction. He admitted that he did not make any complaint before police or concerned magistrate regarding false implication of accused Jabbar.
64) Similar statement is given by another defence witness DW-2 Sh. Preetam Kumar.
65) The defence of the accused is that he has been named on account of his persistent demand of Rs.60,000/- which was given to Parvesh for allotment of MCD khokha. However, the motive of the injured to name the accused only on that account appears to be far fetched and improbable. Accordingly the defence of accused is rejected.
66) Therefore as per discussion above, I am of the opinion that prosecution has succeeded in proving offences punishable u/s 323/452/325/34 IPC against accused Jabbar beyond reasonable doubt. However, prosecution has failed to prove offence against accused Jogender and Jagga and they are entitled to benefit of doubt. Accordingly accused Jogender and Jagga are acquitted of the charges. Accused Jogender @ Chunnu is in judicial custody, he be set free, if not required in any other case. Bail bonds of accused Jagga stand cancelled and surety discharged. However, all three accused are directed to furnish separate bail bonds u/s 437 A Cr.PC within a week.
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67) Let accused be heard on quantum of sentence in respect of accused Jabbar.
Digitally signed by GURDEEP GURDEEP SINGH
Location: Addl. Seessions
Announced in the open court Judge-1/ Special Judge
today i.e. 25.04.2018
SINGH (POCSO),Shahdara/KKD
Date: 2018.04.25 16:47:31
+0530
(GURDEEP SINGH)
ASJ-1+SPL. JUDGE (POCSO)
SHAHDARA/KKD/DELHI/25.04.2018
FIR No.:86/2011, PS: Gandhi Nagar Page 43 of 43