Delhi District Court
Fir No. 163/08; State vs . Nitin & Anr. Page 1 Of 31 on 25 April, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 68/11
FIR No. 163/08
P.S. Adarsh Nagar
U/S: 186/353/332/333/34 IPC
STATE
Versus
(1) NITIN
s/o Dinesh Yadav
r/o H. No. G297,
Jahangirpuri, Delhi
(2) DINESH
s/o Amar Dev
r/o jhuggi no. 1/136, CD Park,
Kali Mata Mandir, Jahangirpuri, Delhi
Date of Institution: 30032009
Date of arguments: 21042012
Date of judgement: 25042012
J U D G M E N T
1. The Prosecution case, in brief, is that on 18072008 Mange Lal working as Cattle Catcher in Veterinary Department, MCD, Town Hall, Delhi along with other employees namely Shiv FIR No. 163/08; State Vs. Nitin & Anr. Page 1 of 31 Kumar, Rohtash Singh, Atma Ram all cattle catchers, and driver Satish Kumar had started from Town Hall in Truck no. DL1M2749 to catch stray animals. At about 3:30 pm when they reached just near Adarsh Nagar bus stand no. 100, the traffic was moving slowly due to traffic jam, two boys namely Dinesh and Nitin and residents of Jahangirpuri came on motorcycle from the backside and reached near the conductor side seat of the truck and they both started to give danda blows on Rohtash and Shiv Kumar sitting near the conductor window due to which Rohtash received grievous injury on his hand whereas Shiv Kumar received simple injury. They got down from the truck and tried to catch both the boys and snatched the danda but both the boys ran away from the spot on their motorcycle. Police was called at the spot and injured Shiv Kumar and Rohtash were removed to hospital. Mange Lal made complaint to the police. FIR was registered u/s 186/353/332/333/34 IPC. On 23072008 Mange Lal and Shiv Kumar identified both the accused before the police and accused were arrested. After completion of investigation, chargesheet was filed in the court.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section FIR No. 163/08; State Vs. Nitin & Anr. Page 2 of 31 186/353/332/333/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution examined 13 witnesses. Statements of accused u/s 313 Cr. P. C. were recorded wherein they denied all the allegations made against them. However, the accused have led evidence in their defence. Pradeep examined as DW1, Nitin/accused as DW2 and Dinesh/accused as DW3.
4. I have heard the Ld. Defence counsel and Ld. APP for the State and have perused the entire records.
5. Let us firstly examine the evidence led in this case. PW1 Mange Lal deposed that on 18072008 he was posted at MCD Adarsh Nagar and on that day, as per directions of the Hon'ble High Court, his senior officers directed them to catch the stray animals from the roads. Then, he along with Shiv Kumar, Rohtash Singh, Atma Ram and driver Satish Kumar left the Head Office at Town Hall on truck no. DL1M2749 for catching the stray animals. They caught eight stray animals and at about 3:30 pm they reached Adarsh FIR No. 163/08; State Vs. Nitin & Anr. Page 3 of 31 Nagar, near 100 number bus stop. They were moving slowly as there was a traffic jam. At that time, two boys came on a motorcycle from their backside and reached near the Conductor side seat of their truck and they gave a danda blow on the person of Rohtash and Shiv Kumar who were sitting near the Conductor window. They immediately got down from the truck and tried to catch hold both the boys. Due to danda blow, Rohtash and Shiv Kumar received injury on their left hand. They snatched the danda but both the accused persons ran away from the spot. Both the boys obstructed them in the government duty and also caused injuries to government employees during their duties. They made a call at 100 number to police and police reached there and removed them to the hospital and Shiv Kumar and Rohtash were medically examined there. PW1 made a complaint Ex. PW1/A to the police signed by him at point A. PW1 further deposed that on 23072008, he along with Shiv Kumar joined the investigation of this case. Accused Nitin and Dinesh were arrested by the police vide memo Ex. PW1/B and PW1/C both bearing his signature at point A. Their personal search was conducted vide memo Ex. PW1/D and PW1/E and both bearing his signatures at point A. PW1 identified the accused persons before the police and they made complaint to their senior officers. PW1 FIR No. 163/08; State Vs. Nitin & Anr. Page 4 of 31 also deposed that as per the order Ex. PW1/F of the senior officers, he was supervising the cattle catching raids. PW1 knew both the accused persons prior to the incident. Police recorded his statement. At the time of incident, the accused persons were threatening them to set free their animals and they also threatened that they had done wrong by lifting their animals and they further threatened for dire consequences. They refused to set free their animals as per orders of Hon'ble High Court and then they gave danda blows to Shiv Kumar and Rohtash. The witness identified accused Nitin and Dinesh in the court.
6. PW2 HC Jagat Singh deposed that on 18072008, he was posted at PS Adarsh Nagar as Duty Officer from 5 pm to 1 am night. On that day, at about 8:05 pm, Ct. Bijender Singh came to the PS and handed over rukka sent by ASI Munshi Lal. He got recorded FIR through Computer Operator. He brought computergenerated copy of FIR. Another kept in judicial file as Ex. PW2/A bearing his signature at point A. PW2 also made endorsement on the rukka vide Ex. PW2/B bearing his signature at point A. PW3 is Dr. V. K. Singh, Veterinary Officer, Central Meat Raid Team, Gazipur Slaughter House, MCD, Delhi. PW3 deposed that on 04122006, he was FIR No. 163/08; State Vs. Nitin & Anr. Page 5 of 31 working as Veterinary Officer at Headquarter of MCD, Town Hall, Delhi and on that day, Sh. Mange Lal (one of the cattle catcher of the Headquarter squad and being a literate one) was directed to supervise cattle catching raids through headquarters squad on the occasions when the cattle supervisor (Hq.) engaged in performance of other assigned duties. PW3 also deposed that he made an office order Ex. PW1/F (OSR) in this regard and he brought the original of said order which was issued with the approval of the Addl. Commissioner (Health). PW4 Shiv Kumar deposed that in the year 2008, he was working in the MCD as Cattle Catcher in the Cattle Veterinary Servicing Department, Town Hall, Delhi. On 18072008, he along with Mange Lal, Rohtash and driver left the Town Hall by a truck used for cattle catching. They reached at Jahangirpuri and caught a cow and were going towards Timarpur Phatak side. When they reached Adarsh Nagar, near bus stand, two boys came on a bike and reached near the conductor side and gave a danda blow to him and Rohtash as they were sitting near the conductor window. They got down from the truck and tried to caught hold of both boys. They caught hold of danda but the accused persons ran away. He received injury on his left hand. He along with Mange Lal caught hold of accused Dinesh and Nitin (present in the court) and they were FIR No. 163/08; State Vs. Nitin & Anr. Page 6 of 31 handed over to the police. Police prepared arrest memo of both the accused vide Ex. PW1/B and Ex. PW1/C bearing his signature at point C. Their personal search was conducted vide memo Ex. PW1/D and Ex. PW1/E bearing his signature at point B. After receiving the injury, they also informed to the police at 100 number and were medically examined in BJRM hospital. Police recorded his statement. Accused persons obstructed them to perform their government duty. However, with the permission of Ld. Predecessor court, PW4 was reexamined by Ld. APP for the State and PW4 deposed that accused persons were arrested from Salam Bandh on 23072008 and due to lapse of time, he could not tell the exact date of arrest.
7. PW5 Rohtash Singh deposed that he was working as Cattle Catcher with the Veterinary Department of MCD and on 18072008, he along with Atma Ram, Shiv Kumar, Mange Ram and driver Satish left from Town Hall by a truck used for catching cattles. They went to Jahangirpuri where they caught 8 stray cattles. While they were taking the cattles to the Cattle Pound, Timarpur at about 3:30 pm and when they reached at the bus stand of bus route no. 100 at Adarsh Nagar, the truck was stopped because of traffic jam FIR No. 163/08; State Vs. Nitin & Anr. Page 7 of 31 and two boys came on a motorcycle and hit dandas to him and other staff. He and Shiv Kumar received injuries on their hands. He sustained fracture on his left hand. After hitting dandas, motorcyclist fled away. He identified one motorcyclist namely Nitin present in court. He disclosed the name of other accused as Dinesh and stated that he can identify him (accused Dinesh was exempted for that day through counsel and his identity was not disputed by the counsel). They received treatment from BJRM hospital. PW6 is Dr. M. L. Sharma, Veterinary Officer, Gazipur Slaughter House, MCD Delhi. He deposed that on 19122008 he was working as Veterinary Officer (Enforcement in MCD). On that day, he made complaint u/s 195 Cr.P.C. against accused persons Nitin s/o Dinesh Kumar r/o H. No. G297, Jahangirpuri, Delhi and also against Dinesh s/o Anaar Dev r/o jhuggi no. 1/136, CD Park, Kali Mata Ka Mandir, Jahangirpuri, Delhi. On 18072008 the MCD staff consisting of Shiv Kumar, Rohtash Singh, Cattle Catchers of MCD were on MCD duty for catching the stray animals in the area of Adarsh Nagar and they were hit by aforesaid accused persons with the stick on their left hands and they were treated in BJRM Hospital. Rohtash Singh, Cattle Catcher received fracture in his hand in the said incident. FIR no. 163/08 was lodged at PS Adarsh Nagar regarding the aforesaid incident as FIR No. 163/08; State Vs. Nitin & Anr. Page 8 of 31 accused persons obstructed the MCD staff in performing their duties and they were caused injuries. His complaint dated 19122008 is Ex. PW6/A which bears his signatures at point A.
8. PW7 HC Kanwar Pal deposed that on 18072008 he was posted as HC in PCR, NW Zone and on that day, he was on duty on PCR vehicle C35 which was stationed at Azadpur Mandi. At about 4:15 pm, he received a message from Control Room regarding a quarrel at 100 no. bus stand, Adarsh Nagar. He along with his staff reached there and found two injured persons namely Rohtash and Shiv Kumar of MCD. He immediately took them in the PCR vehicle to BJRM hospital and got them admitted in the emergency. Later on, IO recorded his statement in this regard. PW8 Satish Kumar deposed that he was working as a driver in MCD (VO) Headquarters, Civic Centre, Minto Road, Delhi. He used to drive the veterinary vehicle from Town Hall. On 18072008, he left his office along with 56 cattle catchers in truck no. DL1M2749 at around 9:30 pm for Jahangirpuri, Civil Lines for catching stray animals. Some stray animals were caught in the Jahangirpuri area and thereafter they came on the main road near Mandi. When the vehicle reached at red light near 100 number bus stand, two boys came on a motorcycle. FIR No. 163/08; State Vs. Nitin & Anr. Page 9 of 31 One of the boys gave a danda blow on the hand of Rohtas who was sitting on the conductor side of the truck. Shiv Kumar also received danda blow by those boys. After giving beatings to the Cattle Catchers, both the boys ran away. The matter was reported to the police. Both the cattle catchers were medically examined at BJRM hospital. He deposed that he cannot identify those boys as he could not see them properly as he was driving the vehicle and also he cannot say whether the accused present in court were the same boys who gave beatings to the cattle catchers. The statement of PW8 was recorded by the police.
9. PW9 HC Ram Karan deposed that on 23072008 he was posted as HC at PS Adarsh Nagar and on that day, he joined investigation of the present case with ASI Munshi Lal and the police team along with Shiv Kumar and Manage Ram (MCD employees) reached Shah Alam Bandh for the investigation of the present case. Nitin and Dinesh met the police team near Kali Mata temple, Jahangirpuri and those boys were identified by aforesaid MCD employees namely Shiv Kumar and Mange Ram. Both of them were apprehended and brought to the place of occurrence when they pointed out the place of occurrence. Both the accused were got FIR No. 163/08; State Vs. Nitin & Anr. Page 10 of 31 medically examined at BJRM hospital. Both the accused were arrested in the present case vide arrest memo already Ex. PW1/B and Ex. PW1/C and their personal search memo Ex. PW1/D and Ex. PW1/E were also prepared. All the memos bear his signature at point B. Both the accused were produced in court and they were sent to J/C. Accused Dinesh was correctly identified by the witness and identity of accused Nitin was not disputed by the Ld. Defence counsel. PW10 Dr. R. S. Mishra, CMO, BJRM Hospital, Delhi deposed that on 18072008, he was working as CMO in BJRM hospital and on that day, two injured persons i.e. Rohtash s/o Duli Chand, age 40 years and Shiv Kumar s/o Jagdish, age 42 years were brought to the Casualty Department by PCR official with the alleged history of assault. He examined both the injured persons vide ME no. 53019 and 53027 Ex. PW10/A and Ex. PW10/B respectively which bear his signatures at point A on both the MEs. The patients Rohtash and Shiv Kumar were having swelling and tenderness on their left hands and they were advised xray left hands and referred to Senior Resident, Orthopaedics. PW10 further deposed that the nature of injuries on both the MLCs were given by Dr. Sameer. The nature of injury on the ME of injured Rohtas was th given as grievous as patient was having fracture of 5 metacarpal FIR No. 163/08; State Vs. Nitin & Anr. Page 11 of 31 bone of left hand. He identified the endorsement given by Dr. Sameer at point X on ME already Ex. PW10/A and signature at point B. The nature of injury on the ME of injured Shiv Kumar was opined as simple at point X on ME Ex. PW10/B upon which he identified the signatures of Dr. Sameer at point B. Dr. Sameer has left the services of the hospital, however PW10 is conversant with the handwriting and signatures of Dr. Sameer as he has worked with him in BJRM Hospital.
10. PW11 Ct. Bijender Singh deposed that on 18072008 he was posted as Ct. at PS Adarsh Nagar and on that day, he gave copy of DD no. 15A to ASI Munshi Lal as per the instructions of Duty Officer and after that he along with ASI Munshi Lal had reached the spot i.e. 100 number bus stand, Adarsh Nagar where no injured was present. On inquiry, ASI Munshi Lal came to know that injured persons had been removed to BJRM hospital by PCR van. Thereafter, he along with ASI Munshi Lal reached BJRM hospital where ASI Munshi Lal collected the MEs of injured Rohtash Singh and Shiv Kumar and made inquiries from them. In the meanwhile, one Mange Lal, Incharge of Cattle Catcher Veterinary Department, Town Hall met them in hospital and gave a complaint to ASI Munshi FIR No. 163/08; State Vs. Nitin & Anr. Page 12 of 31 Lal on which ASI Munshi Lal prepared rukka and gave the same to him for registration of FIR. Accordingly, he went to PS and got the case registered through Duty Officer. After registration of case, he collected copy of FIR along with original rukka and reached the spot where he handed over copy of FIR and rukka to ASI Munshi Lal. After that, they tried to find out the accused persons namely Nitin and Dinesh but they could not be found. Thereafter, while searching the accused, they came back to PS where his statement was also recorded by the IO.
11. PW12 SI Munshi Lal deposed that on 18072008 he was posted as ASI at PS Adarsh Nagar and on that day, DD no. 15A Mark X regarding quarrel at Adarsh Nagar bus stand was received to him through Ct. Bijender while he was attending some other call. He along with Ct. Bijender reached there but nothing was found at the spot. From the spot, he came to know that injured had already been shifted to BJRM hospital. He along with Ct. Bijender reached BJRM hospital and met two injured persons namely Shiv Kumar and Rohtash. He collected their MEs. One of employees of MCD namely Mange Ram was also present in the hospital and he gave written complaint to him for registration of FIR. On the basis of said FIR No. 163/08; State Vs. Nitin & Anr. Page 13 of 31 complaint, he made endorsement vide Ex. PW12/A for registration of FIR u/s 186/353/332/34 IPC and deputed Ct. Bijender for registration of FIR. Thereafter, he along with Mange Ram again reached at the spot where he prepared site plan Ex. PW12/B at the instance of Mange Ram. Ct. Bijender reached at the spot with copy of FIR. Complainant and police team made search for the accused persons but they were not traceable. PW12 further deposed that on 23072008 he along with HC Ram Karan were searching accused persons of the present case. Complainant Mange Ram and injured Shiv Kumar met them outside PS and they were also joined in the investigation. The police team along with complainant and injured reached Jahangirpuri, near Sai Baba Temple. Mange Ram pointed out towards two boys who were razing their cows in the fields. Both were apprehended at the instance of Mange Ram and their names came to be known as Nitin and Dinesh (correctly identified by the witness). Both of them were interrogated and arrested in the present case vide arrest memo already Ex. PW1/B and PW1/C and their personal search memos Ex. PW1/D and PW1/E were also prepared. The danda which was used by the accused persons in beating the injured persons could not be recovered as they threw the same at construction site of Metro. Both the accused were got medically FIR No. 163/08; State Vs. Nitin & Anr. Page 14 of 31 examined, produced in the court and sent to J/C. During investigation, he obtained complaint u/s 195 Cr. P. C. from MCD. The opinion on the MEs of both the injured were also taken. On the ME of Rohtash, the nature of injury was grievous whereas on the ME of Shiv Kumar, it was simple injury. He recorded statement of witnesses. After completion of investigation, file was put up before SHO who forwarded the same to court.
12. PW13 is Dr. Mohamad Tufail Sheikh, SR, Department of Radiology, BJRM Hospital. He deposed that he was deputed by the MS to depose in the present case on behalf of Dr. Shipra Rampal who was on leave that day. PW13 further deposed that he is acquainted with the handwriting and signatures of Dr. Shipra Rampal as she has worked with him. He saw the report dated 19072008 prepared by Dr. Shipra Rampal on the ME of Rohtash. As per the th report of Dr. Shipra Rampal, patient was having fracture of 5 metacarpal bone. The endorsement on the ME is Ex. PW13/A upon which he identified the signature of Dr. Shipra Rampal at point A.
13. The Ld. Defence counsel has argued that Ex. PW1/F which is the office order dated 04122006 is manipulated document FIR No. 163/08; State Vs. Nitin & Anr. Page 15 of 31 and due to that reason the original of it was not filed. Ld. APP for the State has argued that original of PW1/F was produced before the Court. Dr. V. K. Singh, Veterinary Officer examined himself as PW3 and brought the original of the said order, photocopy of which was already Ex. PW1/F (OSR). In the said order Ex. PW1/F which was issued by PW3, it is mentioned that Sh. Mange Lal (one of the cattle catchers of the HQ squad and being a literate one) shall supervise the cattle catching raids through HQ Squad on the occasions when the cattle supervisor (HQ) is engaged in performance of other assigned officials duties so that work of cattle catching may not suffer. PW3 deposed in his examination in chief that said letter was issued with the approval of the Addl. Commissioner (Health). PW3 denied the suggestion that office order was manipulated later on. Therefore, I hold that the office order dated 04122006 Ex. PW1/F proved by PW3 is not the manipulated document but it has been issued by PW3 with the approval of Addl. Commissioner (Health).
14. Ld. Defence counsel has further argued that PW1 does not know the details of caught animals as to whether they were cows or buffaloes or any other animals. Further, PW1 does not know the motorcycle number on which the accused came at the spot of FIR No. 163/08; State Vs. Nitin & Anr. Page 16 of 31 incident. Even PW1 did not notice the make of the motorcycle. PW4 also does not remember the colour, registration number and make of motorcycle on which the accused persons came at the spot. The Ld. Counsel for the accused has also argued that there is a contradiction in the testimony of PW1 and PW4. According to Ld. Defence counsel, PW1 deposed in his crossexamination that the accused Dinesh was driving the motorcycle and accused Nitin was pillion rider. Whereas, PW4 deposed in his crossexamination that accused Nitin was driving the motorcycle and accused Dinesh was pillion rider. Ld. APP for the State has argued that PW1 and PW5 deposed that Dinesh was driving the motorcycle. If PW4 has deposed that the accused Nitin was driving the motorcycle, it is only due to lapse of time, therefore, the aforesaid contradictions are not the major contradictions and the accused cannot get the benefit of such minor contradictions in the testimony of PWs. In my considered view, if minor contradictions in the testimony of PWs are there, it does not shake the basic version of Prosecution case. Therefore, undue importance to such minor contradictions cannot be given if the other material evidence are there on record to corroborate the testimony of the witnesses on behalf of the Prosecution.
FIR No. 163/08; State Vs. Nitin & Anr. Page 17 of 31
15. The Ld. Defence counsel has further argued that no public witness was joined despite the fact that the place of incident was a traffic area where the incident had been allegedly committed by the accused. PW1 in his crossexamination, deposed that public persons also gathered there at the time of incident. They raised alarm 'pakdopakdo' but accused persons ran away. During cross examination, PW4 deposed that no public person present there came for their help at the time of incident and both the accused ran away on the motorcycle. PW8 also deposed in his crossexamination that they raised alarm but no one came for their rescue. Those boys ran away in opposite directions. It is relevant to mention here that public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that the testimony of witnesses of the Prosecution is untrustworthy or that it can never be acted upon. It has been held in catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, I would place a reliance upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad and FIR No. 163/08; State Vs. Nitin & Anr. Page 18 of 31 Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal and Anr. Vs. State of UP 1996 (7) SCC 192.
16. The Ld. Defence counsel has also argued that PW5/injured did not file any complaint to the police regarding the alleged incident. The Ld. APP for the State has argued that it is nowhere mentioned in section 195 Cr.P.C. that injured has to lodge a complaint, therefore, there is no requirement of law that injured official first file the complaint and thereafter the officer concerned shall file the complaint. PW6 deposed that on 19122008, he was working as Veterinary Officer (Enforcement in MCD) and on that day, he made complaint u/s 195 Cr.P.C. against accused persons Nitin and Dinesh which has been proved by PW6 as Ex. PW6/A.
17. The Ld. Defence counsel for the accused has argued that the MCD officials demanded illegal gratification from the accused so that they should not catch their animals. PW5 in his cross examination denied the suggestion that MCD staff demanded illegal gratification from both the accused persons for not catching their animals and when they refused to make any payment, they were falsely implicated in the present case in connivance of the police. FIR No. 163/08; State Vs. Nitin & Anr. Page 19 of 31 DW1 in his examination in chief deposed that Rohtash and Shiv Kumar used to collect Rs. 500/ per animal owner. They were also demanding the bribe amount from accused Nitin and Dinesh. They were saying that they will make payment within 2/3 days but they were bent upon to make the payment immediately. Some hot words were exchanged between Rohtash and accused persons and DW1 left from there. DW2 also deposed in his examination in chief that Rohtash (MCD employee) used to collect monthly charges of keeping animals in the area as they were not having any MCD licence. Some of the persons of the locality made illegal payments to Rohtash but DW2 refused to make payment and told him to collect the payment later on but he bent upon to make payment immediately. DW3 deposed in his examinationinchief that on 18072008 at around 3/4 pm some MCD employees came to catch animals in the area of Jahangirpuri. Pradeep made payment to them. When they were demanding money from Nitin, his owner, he asked them to come later on as he was not having any money to pay them and they took away the cow of Nitin. It emerges from the aforesaid testimony of DW1 to DW3 that the MCD officials demanded illegal gratification from the accused persons for not catching their animals but the accused have not brought on record in their defence evidence any FIR No. 163/08; State Vs. Nitin & Anr. Page 20 of 31 complaint against the MCD officials lodged with the office of MCD or in the PS regarding the demand of illegal gratification. The oral testimony of DW1 to DW3 in this regard is not supported by any documentary evidence. Therefore, I hold that the plea that the MCD officials / injured demanded illegal gratification is not tenable.
18. The Ld. Defence counsel for the accused has further argued that type of danda which had been allegedly used to inflict injury upon the injured persons is not known and even otherwise the alleged danda was not recovered. Therefore, it is a false allegation upon the accused persons that the accused inflicted injury upon the injured by using danda. PW1 in his crossexamination deposed that accused Nitin got down from the motorcycle and gave danda blow. The danda was having length of about 1½ meter long. Several heavy blows were given. Injured received danda blow in hand as well chest. The accused persons gave danda blows and this incident continued for 57 minutes. PW1 denied the suggestion that no such incident took place or that no injuries caused by the accused persons. PW1 further denied the suggestion that they received injuries when they were catching the stray animals. PW4 in his examination in chief deposed that when they reached Adarsh Nagar, FIR No. 163/08; State Vs. Nitin & Anr. Page 21 of 31 near bus stand, two boys came on a bike and reached near the conductor side and they gave a danda blow to Rohtash and himself as they were sitting near the conductor window. PW4 received injury on his left hand. PW4 along with Mange Lal /PW1 caught hold of accused Dinesh and Nitin (correctly identified by the witness) and they were handed over to the police. PW4 in his crossexamination deposed that accused Nitin gave a danda blow. PW4 had snatched the danda from the accused when he tried to give danda blow fourth time. PW4 further deposed that accused persons gave danda blow for about 45 minutes. He handed over the danda to police. PW4 also deposed that accused persons gave danda blow as they were catching their stray cow. PW4 denied the suggestion that no such incident took place and he was not present at the spot. PW5 deposed in his examination in chief that two boys came on a motorcycle and hit dandas to him and the other staff. PW5 Shiv Kumar received injuries on their hands. PW5 further deposed that he sustained fracture on his left hand. During crossexamination, PW5 deposed that he was hit danda by accused Nitin. PW5 was sitting by the side of the window in the truck. There was no glass in the window. They had handed over the danda left by the accused to the police. The incident was over within 5 minutes. Police reached at FIR No. 163/08; State Vs. Nitin & Anr. Page 22 of 31 the place of occurrence within 10 minutes. PW5 along with Shiv Kumar/ PW4 were taken to BJRM hospital.
19. PW8 in his examination in chief deposed that when the vehicle reached at red light near 100 number bus stand, two boys came on a motorcycle. One of the boys gave a danda blow on the hand of Rohtash who was sitting on the conductor side of the truck. Shiv Kumar / PW4 also received danda blow by those boys. During crossexamination, PW8 also deposed that window glass of the truck were opened at that time. At the time of giving of danda blow, the truck was standing at the red light. The incident happened in 45 minutes. PW8 denied the suggestion that no incident took place or that nobody got injured in the said incident. PW10 is Dr. R. S. Mishra who deposed in his examination in chief that nature of injury on the ME Ex. PW10/A of injured Rohtash/ PW5 was given as grievous as th patient was having fracture of 5 metacarpal bone of left hand. The nature of injury on the ME of injured Shiv Kumar / PW4 was opined as simple at point X on ME Ex. PW10/B. PW10 denied the suggestion that injured did not sustain any injury or that Ex. PW10/A and PW10/B are forged and fabricated documents. PW13 Dr. Mohd. Tuffel Sheikh also deposed that as per the report of Dr. Shipra FIR No. 163/08; State Vs. Nitin & Anr. Page 23 of 31 th Rampal, patient Rohtash was having fracture of 5 metacarpal bone according to ME Ex. PW13/A upon which PW13 identified the signature of Dr. Shipra Rampal at point A as she had worked with him.
20. In the present case, it emerges from the testimony of the aforesaid PWs that PW1, PW4 and PW5 (identity of accused Dinesh not disputed) have identified the accused Nitin and Dinesh and categorically deposed that accused Nitin and Dinesh gave danda blows upon PW4 and PW5 due to which PW4 Shiv Kumar received simple injury in his left hand and Rohtash/ PW5 received grievous injury i.e. fracture in his left hand at the time when the abovesaid injured persons were performing their official duties. PW10 and PW13 are the doctors who have proved ME of PW4 and PW5 as Ex. PW10/A, PW10/B and Ex. PW13/A. PW2 HC Jagat Singh has proved the FIR as Ex. PW2/A and endorsement made on the rukka vide Ex. PW2/B. PW7 is HC Kanwar Pal who was on duty on PCR vehicle and took the injured PW4 and PW5 in the PCR vehicle to BJRM hospital. PW9 is HC Ram Karan who joined the investigation of the case with ASI Munshi Lal/ PW12. PW11 is the Ct. Bijender Singh who gave copy of DD no. 15A to ASI Munshi Lal and also FIR No. 163/08; State Vs. Nitin & Anr. Page 24 of 31 collected the MEs of injured Rohtash Singh and Shiv Kumar from BJRM hospital and made inquiries from them and further got the case registered through DO. PW12 is SI Munshi Lal who received DD no. 15A Mark X on 18072008, he reached at the spot and prepared the site plan Ex. PW12/B at the instance of Mange Lal. PW12 proved the arrest memo already Ex PW1/B and PW1/C and personal search memos as Ex. PW1/D and PW1/E.
21. So far as the danda which has not been recovered is concerned, I would place a reliance upon the judgement reported as Dhanaj Singh alias Shera and others, Appellants Vs. State of Punjab, Respondent AIR 2004 SC 1920; AIR 1995 SC 2472, it was held that in case of a defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Therefore, the accused cannot be acquitted solely on account of defective investigation. In Paras Yadav & ors. Vs. State of Bihar 1999 (2) SCC 126; AIR 1999 SC 644, it was held that if the lapse or omission if committed by the investigating agency or because of negligence, the prosecution FIR No. 163/08; State Vs. Nitin & Anr. Page 25 of 31 evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. In the present case, though the investigating agency has not recovered the danda yet the eyewitnesses including the injured have specifically deposed in their evidence that danda was used by the accused to inflict injuries upon the injured persons, therefore, the testimony of PWs i.e. Eyewitnesses and injured is credible and cogent which cannot be disbelieved in this regard.
22. It is pertinent to mention here that though PW8 has not identified the accused Nitin and Dinesh yet he has supported the case of the prosecution that two boys came on motorcycle and gave danda blows upon PW4 and PW5. In Paramjeet Singh @ Pamma Vs. State of Uttarakhand AIR 2011 SC 200, it was held that evidence need not be rejected en bloc if witnesses become hostile but should be considered with caution and court should look for corroboration. It was further held that the fact that all eyewitnesses who had indicted accused at the initial stage, turned hostile at trial, it cannot come in FIR No. 163/08; State Vs. Nitin & Anr. Page 26 of 31 aid of accused. The accused were liable to be convicted. Thus, the conduct of the accused Nitin and Dinesh in the present case reveals that accused persons in furtherance of common intention voluntarily obstructed Mange Lal, Shiv Kumar, Rohtash Singh and Atma Ram from discharging their public duty/ function and also used criminal force / assault upon the aforesaid public servants with intent to deter them from discharging their public duty as public servants and also voluntarily caused hurt to Shiv Kumar/ PW4 and grievous hurt to Rohtash/ PW5 at the time when they were discharging their duties as public servants.
23. In view of my aforesaid discussions and findings, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold both the accused namely Nitin and Dinesh guilty and convict them u/s 186/353/332/34 IPC. Accused Nitin is also convicted for the offence u/s 333 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 25042012 FIR No. 163/08; State Vs. Nitin & Anr. Page 27 of 31 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 68/11 FIR No. 163/08 P.S. Adarsh Nagar U/S: 186/353/332/333/34 IPC STATE Versus (1) NITIN s/o Dinesh Yadav r/o H. No. G297, Jahangirpuri, Delhi (2) DINESH s/o Amar Dev r/o jhuggi no. 1/136, CD Park, Kali Mata Mandir, Jahangirpuri, Delhi Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. The Ld. Counsel for the convicts has argued that convict Nitin was about 18 years at the time of incident. There is no other criminal case pending against convict Nitin. Even he has not been convicted in any FIR No. 163/08; State Vs. Nitin & Anr. Page 28 of 31 other matter except the present case. He is the sole bread earner of his family. He is bachelor and has the responsibility to look after his parents. So far as convict Dinesh is concerned, he has got married recently. He was about 18 years old at the time of incident. There is no other criminal case pending against him except the present one. Even otherwise, he has not been convicted in any other criminal case except this case. He is the sole bread earner of his family who are dependent on him. He has to look after his old aged parents. Therefore, lenient view be taken against them and the convict Dinesh be released on probation of good conduct.
2. The Ld. APP for the State has argued that appropriate sentence be awarded against convict Nitin since he attacked the Government officials at the time of performing their official duties due to which one of the Govt. officials suffered grievous injury. If lenient view is taken, the officials performing their government duties shall lose the confidence in administration of justice.
3. Considering the totality of facts and circumstances, convict Nitin is sentenced with three months Rigorous FIR No. 163/08; State Vs. Nitin & Anr. Page 29 of 31 Imprisonment u/s 186 IPC; six months Rigorous Imprisonment u/s 353 IPC; one year Rigorous Imprisonment u/s 332 IPC; and three years Rigorous Imprisonment u/s 333 IPC along with a fine of Rs. 3,000/, in default of payment of which he shall undergo 3 months SI. The convict Nitin shall also deposit the compensation of Rs. 10,000/ in the court which shall be paid to the injured Rohtash. The said fine and compensation deposited. All the sentences shall run concurrently. Convict Nitin shall get benefit of section 428 Cr. P. C. for the period during which he remained in custody during investigation/ trial.
4. A report from the Probation Officer has been received regarding the past conduct and behaviour of the convict Dinesh which reveals that convict Dinesh is a milkman. His behaviour, habits, temperament have been found satisfactory and this is the first criminal case against him. Further, he is not a habitual offender. He is an earning hand of his family. In my view, no fruitful purpose shall be served by sentencing the convict Dinesh to jail where he may come in contact with hardened criminals. Considering the totality of facts and circumstances, age, character and antecedents of the convict Dinesh, in my FIR No. 163/08; State Vs. Nitin & Anr. Page 30 of 31 view, it shall be expedient that convict Dinesh should be released on probation of good conduct for a period of two years and therefore instead of sentencing him at once to any punishment, it is directed that convict Dinesh be released on his furnishing Probation bond in the sum of Rs. 20,000/ with a surety of like amount. He shall appear and receive the sentence when called upon during the said period as the Court may direct and in the meanwhile he shall keep peace and be of good behaviour. Copy of judgement and sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 09052012 FIR No. 163/08; State Vs. Nitin & Anr. Page 31 of 31