Delhi District Court
State vs . Dheeraj Etc. Page 1 Of 18 on 28 January, 2014
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IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT
ROHINI COURTS: DELHI
SC No.34/2013
FIR No.70/2008
PS Uttam Nagar
U/S 307/34 IPC
State
Vs.
1. Dheeraj,
S/o Bharat Singh,
R/o H.No.4, Gali No.15,
Jain Road, Bhagwati Garden Extn.,
Uttam Nagar, New Delhi.
2. Chillu @ Sarvjeet,
S/o Ramdhari,
R/o B63, Gali No.16,
Bhagwati Garden Extn.,
Uttam Nagar, New Delhi.
3. Pankaj Kumar Pandey,
S/o Late Radhey Shyam,
R/o A13, Jaggi Farm,
Bhagwati Garden Extn.,
Uttam Nagar, New Delhi.
Date of Institution:02.09.2008
Date of conclusion of Arguments:21.01.2014
Date of pronouncement of Judgment:24.01.2014
State Vs. Dheeraj etc. page 1 of 18
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JUDGMENT
1. All three accused have been forwarded by the police to face trial u/s 307/34 IPC.
2. Facts are that accused Pankaj @ Pandey, Chillu @ Sarabjeet and Dheeraj, previously known to complainant Deepak, came to his house No.59A, Street No.16, Bhagwati Garden Extn., Uttam Nagar, New Delhi along with an unknown associate on 20.02.2008 at 6.30 P.M. Complainant went with them and started taking liquor in a nearby vacant plot. That liquor was brought by Pankaj @ Pandey. Liquor was finished after one hour. Then, accused Chillu and Dheeraj asked complainant to bring more liquor and salty articles. Complainant refused infuriating Pankaj. When complainant started going towards home, he was caught by collar by Pankaj and was felled on the ground. Dheeraj caught his legs, Chillu sat on his chest and caught his hands. Accused Pankaj gave his neck several blows with sharp edged instrument. Thereafter, 2 3 blows were given by accused Chillu. Complainant started crying "save, save". His sisterinlaw Prem Devi came there running and all accused ran away from the spot. PCR van came after some time and took him to DDU hospital where he was medically examined.
PCR intimated the local police about the incident at State Vs. Dheeraj etc. page 2 of 18 3 7.41 P.M. and DD No.46A was registered and it was given to SI Mamur Khan for investigation who reached the spot from where he came to know that injured had been taken to DDU hospital. He inspected the spot. In the meantime, Ct. Dal Chand produced before him DD No.48A with the contents that injured Deepak had been admitted in DDU hospital vide MLC No.2787/08. HC Mehtab Singh, beat official was left at the spot and SI Mamur Khan and Ct. Dal Chand reached DDU hospital where Deepak was found admitted with the history of assault. The doctor declared him fit for statement. IO recorded his statement, prepared rukka and handed over to Ct. Dal Chand for registration of FIR.
3. Charge u/s 307/34 IPC was framed against all three accused on 12.08.2009 to which they claimed trial.
4. In order to substantiate the allegations, the prosecution examined ten witnesses. No witness was examined in defence by accused.
5. PW2 Dr. Uday Kumar Sharma deposed that he medically examined Deepak on 20.02.2008 at DDU hospital and found following injuries :
i. Contused incised wound over left side of the cheek of the size of 3cm. X 0.5cm. X 0.3cm.
ii. Contused incised wound over antero lateral aspect of neck of the size of 20cm. X 1.5cm. X 0.5cm.
State Vs. Dheeraj etc. page 3 of 18 4 Trachea was found exposed.
iii. Contused incised wound over upper lip of the size of 1cm. X 0.5cm. X 0.3cm.
iv. Multiple parallel shallow contused incised wound over both sides of the neck.
After preparing MLC Ex.PW2/A, Dr. Uday Kumar Sharma referred Deepak to the E.N.T. Doctor. PW6 Dr. Rohit Goel identified the signatures and handwriting of Dr. Mayank Maheshwari who was Senior Resident, E.N.T., DDU hospital on 20.02.2008 when patient, referred by the doctor of Casualty Ward, was examined by him. Dr. Mayank Maheshwari had given opinion about the nature of injuries from E.N.T. side as simple. Opinion is at point E on MLC Ex.PW2/A. HC Dharamvir Singh PW3 registered DD No.46A Ex.PW3/A on 20.02.2008 at 7.50 P.M. on receipt of wireless message that a boy had been given injuries with sharp edged weapon on jail road, Street No.16, Bhagwati Garden Extn., Near Sanjay Public School. PW3 further deposed that he registered case FIR Ex.PW3/B on the same day at 11.00 P.M. on the receipt of rukka sent by SI Mamur Khan brought by Ct. Dal Chand. PW5 Ct.
Sanjay proved DD No.48A as Ex.PW5/A. PW7 HC Anil Kumar was MHCM in PS Uttam Nagar on 20.02.2008 when SI Mamur Khan deposited with him a pullanda sealed with the seal of Mamur Khan State Vs. Dheeraj etc. page 4 of 18 5 and he made entry No.4513 in register No.19. PW7 further deposed that SI Mamur Khan deposited with him another pullanda on 23.02.2008 sealed with the same seal and he made entry at serial No.4519. Consolidated entries are Ex.PW7/A. PW8 HC Mehtab Singh is witness to the arrest of accused Dheeraj and Chillu on 23.02.2008 at Kakrola Mod vide arrest memos Ex.PW8/A and Ex.PW8/B and personal search memos Ex.PW8/C and Ex.PW8/D respectively. He further deposed that accused Chillu made disclosure statement that he can get recovered the weapon of offence ie. blade from his house, and hence, his disclosure statement Ex.PW8/E was recorded. Thereafter, accused led the police party to his house situated in Bhagwati Garden Extn., Uttam Nagar and produced a blade by taking it out under the mattress on the bed. He further deposed that the blade was wrapped in a paper, it was further kept in a match box and pullanda was prepared which was sealed with the seal of MK and was taken into possession vide memo Ex.PW8/F. He further deposed that both accused disclosed the name of their fourth accomplice as Baba and also took the police party to the house of Baba in Bhagwati Garden Extn. He further deposed that house of Baba was found locked. PW8 identified the recovered blade as Ex.P1. PW9 HC Dal Chand deposed that Duty Officer handed him over DD No.48A on 20.02.2008 in order to give it to SI State Vs. Dheeraj etc. page 5 of 18 6 Mamur Khan and so, he reached the spot i.e. house No.59A, Street No.16, Bhagwati Garden Extn. From there, he accompanied SI Mamur Khan to DDU hospital where Deepak was found admitted. He further deposed that Deepak's statement was recorded by SI Mamur Khan, rukka was prepared and the same was handed over to him which he took to PS and got the FIR registered. Thereafter, he returned to the spot and handed over copy of FIR and Tehrir to the IO.
PW10 SI Mamur Khan deposed as per rukka Ex.PW10/A stating that when he reached the spot i.e. Street No.16, Bhagwati Garden Extn., he found beat staff there including HC Mehtab. Beat staff told him that injured had been taken to hospital and that assailants had run away from the spot. He along with Ct. Dal Chand went to DDU hospital, recorded statement of injured, prepared rukka and got the FIR registered through Ct. Dal Chand. He further deposed that he took into possession a blood stained jacket and bedsheet from the hospital. He next deposed that he was not remembering from where the said articles were seized. He again went to the spot, inspected it and searched the accused but no accused was found. No accused could not be arrested on 21.02.2008 and 22.02.2008 also. Next he deposed about the arrest of accused Dheeraj and Chillu and evidence on this issue is identical to the evidence of PW8 HC Mehtab Singh. About third State Vs. Dheeraj etc. page 6 of 18 7 accused Pankaj Pandey, IO PW10 deposed that he was granted anticipatory bail, and hence, he was formally arrested on 29.03.2008 vide arrest memo Ex.PW10/F. His claim is that opinion about the nature of injuries was obtained by him later. He identified the blade as Ex.P1, jacket as Ex.P2 and bedsheet as Ex.P3.
6. PW1 is injured Deepak and PW4 Premwati is his sister inlaw(bhabhi). PW1 deposed that accused Chillu, Dheeraj and Pankaj Pandey along with one unknown person came to his house on 20.02.2008 at 6.30 P.M. From his house, they all went in the street on the back side of his house and took liquor in a vacant plot. Liquor was finished in one hour, and thereafter, accused Pankaj asked him to fetch more liquor as the liquor initially consumed was brought by accused Pankaj. He further deposed that he refused to bring liquor and eatables due to which Pankaj got enraged, and hence, felled him down by catching hold of his collar. He pin pointedly deposed that accused Dheeraj caught hold of his legs, Chillu sat on his chest and held his hands and Pankaj took out something sharp with which he caused injuries on his neck. Thereafter, accused Chillu took that sharp object resembling knife and caused more injuries on his neck. He cried for help. His Bhabhi Prem Lata came there running and accused ran away seeing her coming. He lastly deposed that his statement Ex.PW1/A State Vs. Dheeraj etc. page 7 of 18 8 bearing his thumb impression at point A was recorded in DDU hospital.
PW4 Smt. Premwati deposed that PW1 was his brother inlaw, devar. About three years ago, all three accused came to her house and took Deepak with them. After half an hour, some children came running to her house to tell that some boys were beating Deepak. She opened the back door of the house and saw her devar Deepak lying in a vacant plot and four boys including three boys, present in the court on that day, were beating him and causing injuries on his neck. PW4 and her motherinlaw took Deepak to the house, wrapped him in a bedsheet. Somebody rang up PCR who took him to the hospital.
7. U/s 313 Cr.PC, accused Dheeraj claimed that his signatures were obtained on blank papers which were later on converted against him. Accused Pankaj @ Pandey stated that he never takes liquor. On the day of the incident, he was working on private taxi and was on duty at IGI Airport. He further stated that complainant was not his friend and he never visited his house. He was not having any relationship with any of the coaccused. He further stated that complainant had enticed away a girl, namely, Bitto, sister of Baba @ Monu and both returned after sixteen days due to which Baba was harbouring a serious grudge against the complainant and the incident dated 20.02.2008 was the result of State Vs. Dheeraj etc. page 8 of 18 9 that rivalry. He means to say that it was Baba @ Monu who had caused injuries to the complainant.
8. Ld. APP argued that neck of PW1 was slit by all three accused by using half blade. He further submitted that PW1 had sustained as many as four incised wounds and even the Trachea was exposed. He further submitted that when PW1 raised noise, PW4 came to his rescue and saw all three accused causing injury to her devar. He means to say that PW1 has been corroborated by PW4. He submitted that injuries on the person of PW1 were dangerous to life as those were caused on the vital organ of the body.
On the other hand, Ld. defence counsels argued that PW1 and PW4 are not credible witnesses because they have improved a lot in examinationinchief. They further submitted that investigation conducted by SI Mamur Khan is tainted one and it has prejudiced the accused. Lastly, they argued that not a single injury of the four injuries sustained by PW1, has been deposed by any of the doctor as dangerous to life.
9. Statement Ex.PW1/A has been thumb marked by injured Deepak and the counsel raised the objection about the thumb marks stating that PW1 had passed 10th class and his thumb mark should not have been taken on the statement.
A document is signed or thumb marked in order to State Vs. Dheeraj etc. page 9 of 18 10 show that the contents of the particular document were in the knowledge of the person signing or thumb marking it. Signatures can be forged by others but thumb mark cannot be forged. So, a document bearing thumb mark stands on a better pedestal to the document signed by any person.
Ld. defence counsels further argued that as per PW1, his duty hours were between 11.00 to 7.00 P.M. and his work place is located at about two hours away from the place of fight. He submitted that it was not possible for PW1 to be at the place of fight at 7.00 P.M. It is correct that it has been admitted by PW1 that during the days of incident he was working on the photography shop at village Bakkarwala and his off day was only Sunday. On the day of incident, it was Wednesday. No question was asked from PW1 as to he was on duty or on leave on the day of the incident. Also, the job of a photographer is not to work always at the shop. He has to cover various functions, marriages, etc. by roaming in the area. As per MLC Ex.PW2/A prepared in DDU hospital, PW1 was medically examined at 8.20 P.M. This MLC rules out the absence of the injured from the place near his house. So, argument of the defence counsel is of no consequence.
10. PW1 made following improvements :
i. Accused Pankaj also asked me to fetch liquor and State Vs. Dheeraj etc. page 10 of 18 11 eatables.
ii. I had told the name of my bhabhi as Prem Lata. iii. First, I was taken from the spot to my house. iv. Someone had telephonically informed the police. All these deviations cannot be said to be contradictions. The Hon'ble Supreme Court held way back in 1959 in Tehsildar Singh Vs. State of U.P., AIR 1989 that the variations relating to material facts can be said to be contradictions. The abovesaid only contradictions are quite trivial.
To the same effect are the contradictions appearing in the deposition of PW4.
11. Ld. defence counsel next argued that presence of PW4 near the place of fight is doubtful as she is not aware of the number of her house and name of the colony.
In cross examination, PW4 told that during the days of occurrence, she used to reside in Village Gokalgarh, District Riwari, Haryana and that she used to visit her matrimonial home at Delhi seldom. It is pertinent to mention that her parentsinlaw, devar PW1 and her husband were residing in Delhi whereas PW4 was residing in village Gokalgarh. Most of the time, PW4 used to reside in Gokalgarh and so, she cannot be expected to be aware of her house number and name of the colony.
Ld. defence counsels next argued that the incident had State Vs. Dheeraj etc. page 11 of 18 12 taken place on 20.02.2008 at 7.30 P.M. In February, the sun sets about 5.00 or 6.00 P.M. and so, it was not possible for PW4 to see as to who was causing injury to PW1.
It is correct that incident had taken place on 20.02.2008 at 7.30 P.M. but it is incorrect that the Sun sets in February at 5.00 or 6.00 P.M. In the last week of February, the Sun sets at about 6.45 P.M. and till 7.15 P.M., the darkness does not prevail. As per PW1 and PW4, the incident had taken place in the colony in the vacant plot. It has not been asked specifically from PW4 about the source of light. Eye witness account deposed by PW4 shows that there might be some source of light due to which she identified the accused as the same person who had taken her devar PW1 from the house at 6.00 P.M. on the same day.
12. Ld. defence counsel further submitted that it has been deposed by PW4 that PW1 was brought home in injured condition from the spot by her and her motherinlaw. The counsels raised question why motherinlaw was not examined.
As per the testimony of PW1, she went alone to rescue PW1 when some children came to her to tell that some boys were beating her devar PW1. She no where deposed that her motherin law also accompanied her. This deposition shows that when motherinlaw of PW4 reached the spot, all the assailants might have run away. Hence, she was not eye witness to the occurrence.
State Vs. Dheeraj etc. page 12 of 18 13 Moreover, it has been held several times by the Hon'ble Apex Courr that it is not the quantity but quality of evidence that matters.
Ld. Counsel for argued that register Ex.PW7/A has been tampered with. That tampering is only in respect of designation of the official who deposited the case property and there is some overwriting also and that overwriting is on immaterial facts. That overwriting is not causing any prejudice to the accused.
13. Ld. defence counsels next argued that investigation has been conducted in a tainted manner. They submitted that IO deposed that he obtained the opinion of the doctor about the nature of injury quite later. The MLC Ex.PW2/A shows that when it was handed to PW10 IO by the doctor, the opinion on the injury has already been given by Senior Resident, E.N.T. They further submitted that IO is not aware from where he collected the blood stained jacket Ex.P2 and bedsheet Ex.P3. Also both these articles and recovered knife were not sent to FSL to connect them with the crime. They argued that rough site plan Ex.PW10/G was prepared by the IO before the registration of FIR but it bears the FIR number as 70/08 and as per that site plan, the place of occurrence is in front of the house of PW1 and not on the backyard as deposed by PW4.
It is the default on behalf of IO that he did not prepare State Vs. Dheeraj etc. page 13 of 18 14 rough site plan Ex.PW10/G at the instance of eye witness. Rather, he prepared it at the instance of HC Mehtab who is not eye witness. FIR No.70 has been written on rough site plan but in a different ink suggesting that FIR No.70 was written after the preparation of the document and it cannot be said to be any irregularity committed by the IO.
It has been held by the Apex Court since long that tainted investigation is no ground to let off the accused from the hook. Recently, in Karan Singh Vs. State of Haryana, Crl. Appeal No.14742/2010 decided on 28.05.2013, the Apex Court held :
"Omissions made on the part of the IO, where the prosecution succeeds in proving its case beyond any reasonable doubt by way of adducing evidence, particularly that of eye witnesses and other witnesses, would not be fatal to the case of prosecution, for the reason that every discrepancy present in the investigation does not weigh upon the Court to the extent that it necessarily results in the acquittal of the accused, unless it is proved that the investigation was held in such manner that it is dubbed as "a dishonest or guided investigation" which will exonerate the accused.
It further held :
"Thus, unless lapses made on the part of the investigating authorities are such, so as to cast reasonable doubt on the case of the State Vs. Dheeraj etc. page 14 of 18 15 prosecution, or seriously prejudice the defence of the accused, the Court would not set aside the conviction of the accused merely on the ground of tainted investigation."
In the case in hand, the prosecution version has been supported not only by one eye witness but by two. Certainly, some lapses have been committed by the IO but those are not going to the root of the case. Also, the lapses did not prejudice the accused in the defence and so, tainted investigation is no ground to acquit the accused.
14. Injury Nos.2 & 4 were on the neck. Depth of Injury No.2 was 0.5cm and that of 4 has not been specified. Depth of Injury No.2 shows that the knife/blade was not pressed while attacking PW1. Opinion about nature of injury has been furnished as simple. That was in the domain of Sr. Resident, E.N.T. and the opinion is coming from the right corner. Prosecution did not examine any other doctor to opine that Injury Nos. 2 & 4 were dangerous to life. PW1 was discharged from the hospital on the next day as deposed by PW10 and it suggests that his further admission was not necessary for treatment. Taking into account Injury Nos.2 & 4, the nature of injuries is held as simple.
15. In view of above discussion, all three accused are held guilty u/s 324 r.w.s.34 of IPC. They shall be heard on point of sentence separately.
Announced in the open Court On this 24th day of January, 2014. (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North:Rohini Courts:Delhi State Vs. Dheeraj etc. page 15 of 18 16 IN THE COURT OF MR. UMED SINGH GREWAL ASJ/SPECIAL JUDGE (NDPS): NORTH DISTRICT ROHINI COURTS: DELHI SC No.34/2013 FIR No.70/2008 PS Uttam Nagar U/S 307/34 IPC State Vs.
1. Dheeraj, S/o Bharat Singh, R/o H.No.4, Gali No.15, Jain Road, Bhagwati Garden Extn., Uttam Nagar, New Delhi.
2. Chillu @ Sarvjeet, S/o Ramdhari, R/o B63, Gali No.16, Bhagwati Garden Extn., Uttam Nagar, New Delhi.
3. Pankaj Kumar Pandey, S/o Late Radhey Shyam, R/o A13, Jaggi Farm, Bhagwati Garden Extn., Uttam Nagar, New Delhi.
Date of Institution:02.09.2008 Date of conclusion of Arguments:21.01.2014 Date of pronouncement of Judgment:24.01.2014 State Vs. Dheeraj etc. page 16 of 18 17 Appearance: Mr. Ashok Kumar, APP for the State.
Mr. S.S. Sangwan, counsel for accused Pankaj @ Pandey.
Mr. G. D. Sharma, counsel for accused Dheeraj and Chillu.
ORDER ON SENTENCE:
1. Convicts have already been held guilty u/s 324/34 of IPC.
2. Ld. counsel for convict argued that convict Pankaj @ Pandey is an unmarried boy of 25 years. His father has already expired and he has to take care of his mother who is a homely lady. His elder married brother is residing separately. The younger brother is of 16 years who is studying in 8th class. The counsel further submitted that the convict is driver with an advocate. He is the sole bread earner of his family.
Ld. counsels for convict Dheeraj and Chillu submitted that his clients are unmarried boys of 25 years of age. No other case was ever registered against them. They are the sole bread earners of their families.
3. Taking into account all these facts and circumstances, the convicts are sentenced to undergo RI for one year and a fine of Rs.2,000/ (Rupees two thousand only) each is imposed, in default of payment of fine they shall further undergo SI for two month for the offence punishable u/s 324/34 of IPC.
4. Fine paid.
5. Benefit of section 428 Cr. PC be given to the convicts.
State Vs. Dheeraj etc. page 17 of 18 18
6. At this stage an application u/s 389 Cr. PC has been moved by all three convicts for suspension of sentence and bail. The application is allowed and sentence is suspended till coming 30 days in order to enable them to prefer an appeal in the Hon'ble High Court of Delhi. They be released on bail on execution of bail bonds in the sum of Rs.20,000/ each with one like surety. The bail period shall automatically end on the expiry of 30 days.
7. Let a copy of Judgment and Order on Sentence be given to convicts.
8. File be consigned to Record Room.
Announced in the open Court On this 28th day of January, 2014. (UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North:Rohini Courts:Delhi State Vs. Dheeraj etc. page 18 of 18